The Queen (on the application of Cheralyn Clulow) v Independent Review Service and Another
| Jurisdiction | England & Wales |
| Judge | Timothy Brennan QC |
| Judgment Date | 24 October 2013 |
| Neutral Citation | [2013] EWHC 3241 (Admin) |
| Date | 24 October 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12519/2011 |
[2013] EWHC 3241 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Timothy Brennan QC
Sitting as a Deputy Judge of the High Court
Case No: CO/12519/2011
Richard Drabble QC (instructed by Child Poverty Action Group) for the Claimant
Patrick Halliday (instructed by Treasury Solicitor) for the SecondDefendant
Introduction
This claim for judicial review raises an issue about access to discretionary social security benefits, namely whether depriving the claimant of access to a discretionary community care grant (CCG) from the social fund amounted to unjustified discrimination against her on a ground falling within Article 14 of the European Convention on Human Rights (ECHR) as given effect through the Human Rights Act 1998, s 1(3), s 3 and Schedule 1, Parts I and II. The claimant challenges the lawfulness of Direction 25 of the Social Fund Directions, which has the result that she is ineligible for consideration for a grant.
The claim proceeds only against the Secretary of State as Second Defendant because the First Defendant, the Independent Review Service (of the Office of the Social Fund Commissioner), ceased to exist with effect from 1 August 2013.
Narrative
As a result of health and relationship problems the claimant, who had previously been in work and paying national insurance contributions (NIC), moved out of what had been a family home and lived in various hostels. She was without relevant means and claimed employment and support allowance. She was awarded contribution based employment and support allowance (CBESA), without means testing, on the strength of her NIC record. Had that record been less full, she would (subject to means testing) nonetheless have been entitled to receive income related employment and support allowance (IRESA).
In due course, as part of a planned programme of resettlement, the claimant was successful in obtaining an unfurnished council property with effect from 27 May 2011. She had no furniture or other possessions and applied for a discretionary CCG in order to pay for items for her new home, including a bed, sofa, cooker, washing machine and fridge. The total amount of the expenses subject to the application was a little over £2000.
On the application form for the grant, dated 25 May 2011, doubtless on advice, the claimant ticked a box against the text:
I am getting income-related Employment and Support Allowance.
This was erroneous, because she was getting CBESA, not IRESA. CBESA is not a qualifying benefit for obtaining access to the social fund for the purposes of a discretionary CCG while IRESA is such a qualifying benefit.
The claim was refused on 24 July 2011 in a decision expressed as follows:
Direction 25 not satisfied: NIL AWARD
In context, as appears below, this meant that the refusal was because the claimant was not in receipt of a qualifying benefit (and the only potentially relevant such benefit was IRESA). She had not qualified for exercise of the discretion and the question whether she should receive a discretionary grant, and how much, therefore never arose.
After reviews, the decision was ultimately upheld by a decision of the First Defendant dated 22 September 2011.
Legislative framework
I was provided, on behalf of the claimant, with an uncontroversial analysis of the evolution of the social fund. I accept that employment and support allowance (both CBESA and IRESA) is in the nature of an income replacement benefit. The forerunners of CBESA in the social security system include invalidity benefit and incapacity benefit. The forerunners of IRESA include supplementary benefits and income support. None of these earnings replacement benefits provide a claimant with the possibility of meeting one-off payments for essential purchases outside repeating weekly expenditure on food, heating and the like. Prior to enactment of the Social Security Act 1980 that gap was filled by a system of discretionary "exceptional needs payments". On a change in 1980, a long list of the purposes for which single payments could be made was set out in regulations. In 1988 the social fund was introduced, on further change to the regime. At the time of the claimant's application for assistance the discretionary award of a CCG was the means by which that gap between weekly expenditure and one-off needs might be filled.
The social fund scheme was at the material time governed by the Social Security Contributions and Benefits Act 1992, Part VIII. Ignoring later changes which took effect from 1 April 2013, two types of payment might be made from the social fund. They are: (under s 138(1)(a)) payments of prescribed amounts to meet maternity expenses and funeral expenses and (under s 138(1)(b)):
Payments by way of community care grant, crisis loan or budgeting loan to meet other needs in accordance with directions given or guidance issued by the Secretary of State.
There is no entitlement to a community care grant. A decision whether a payment is to be made, and how much it is to be, is to be made by an appropriate officer of the Secretary of State (s 139(1)) who must have regard to all the circumstances of the case (s 140(1)), including the nature, extent and urgency of the need (s 140(1)(a)) and the amount of any relevant allocation of amounts for payment from the social fund by the Secretary of State (s 140(1)(e)). If dissatisfied with the decision of the appropriate officer, an applicant for a grant could seek internal review and then a further review by a social fund inspector under the Social Security Act 1998, ss 36–38.
The directions given by the Secretary of State (s 138(1)(b)) included the following:
Direction 4 — Community Care Grant qualifying conditions
4. Subject to Directions 25 and 26 a social fund payment may be awarded to promote community care —
(a) by assisting an applicant with expenses … where such assistance will —
(i) help the applicant … to establish himself in the community …
(ii) help the applicant … to remain in the community …
(iii) ease exceptional pressures on the applicant …
…
(v) help the applicant to set up home in the community … following a period during which he has been without a settled way of life.
Direction 25 — Community Care Grant eligibility
(1) For the purposes of this direction, a qualifying benefit is:
(a) income support;
(b) income-based jobseeker's allowance;
(c) state pension credit; or
(d) income-related employment and support allowance.
(2) A social fund payment under direction 4 shall only be awarded to an applicant if:
(a) the application is treated as made on a date upon which the applicant is in receipt of a qualifying benefit;
…
Further, Direction 42 required decision makers to have regard to budgetary considerations, including the limits on amounts allocated for this purpose.
The statutory underpinning for employment and support allowance is to be found in the Welfare Reform Act 2007, s 1 and Schedule 1. In short, a claimant is entitled to an employment and support allowance if he satisfies certain basic conditions and either he satisfies further conditions (relating to national insurance) set out in Part 1 of Schedule 1, or he satisfies certain conditions relating to financial position set out in Part 2 of that Schedule. If he satisfies the national insurance conditions, he gets CBESA. If he is in receipt of CBESA, it is common ground that his income is such that he does not qualify for IRESA. If he is not entitled to CBESA but satisfies the financial eligibility conditions, he is entitled to receive IRESA. In one sense CBESA and IRESA are the same benefit (and in the same amount), reached by different routes for qualification, but this is an incident of drafting. The criteria for award of CBESA and IRESA are not the same.
In order to confirm that an applicant is entitled to IRESA, means-testing is carried out. The evidence establishes that such testing in these circumstances is conducted by specially trained personnel by reference to formal criteria; it involves various inquiries and checks, including consideration of the means of any personal partner of the relevant applicant. It takes time and trouble.
When the claimant applied for a CCG, she was in receipt of CBESA and not IRESA and she had not undergone means-testing. Since she was not in receipt of IRESA, or any other qualifying benefit, she was not entitled to consideration for the relevant grant.
Article 14
In challenging the structure of this aspect of the social security system, the claimant contends that the failure to give her access to a CCG breaches the prohibition of discrimination in ECHR Article 14 which provides:
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on...
To continue reading
Request your trial
-
Southward Housing Co-Operative Ltd v Miss Vicky Walker and Another Secretary of State for Communities and Local Government (Interested Party)
...immutable characteristics, not with what people do or what happens to them: R (Clulow) v Secretary of State for Work and Pensions [2013] EWHC 3241 (Admin). 180 Further, as Lord Bingham explained in the Clift case (at para. 28) the relevant "personal characteristic" is not to be defined by ......
-
CL CIS 2819 2011
...The point was helpfully put by Mr Timothy Brennan QC, sitting as Deputy High Court Judge, in R(Clulow) v Independent Review Service [2013] EWHC (Admin) 3241 at [29]: “Further, the relevant "personal characteristic" is not to be defined by the very differential treatment of which a person co......