The Queen (on the application of HE by his litigation friend KE) v The Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 04 June 2020 |
| Neutral Citation | [2020] EWHC 1411 (Admin) |
| Docket Number | Case No: CO/461/2020 |
| Date | 04 June 2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 1411 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil and Family Justice Centre
2 Park Street, Cardiff CF10 1ET
HIS HONOUR JUDGE Jarman QC
Sitting as a judge of the High Court
Case No: CO/461/2020
Mr Christian Howells (instructed by Watkins and Gunn Solicitors) for the claimant
Mr Richard O'Brien (instructed by the Government Legal Department) for the defendant
Hearing dates: 28 May 2020
Approved Judgment
HH JUDGE Jarman QC:
The claimant is the infant son of his litigation friend. His father in 2016 received a lump sum payment under the Wales Infected Blood Support Scheme (WIBSS). He wishes to bring a claim for judicial review against the Welsh Ministers because payments under that scheme are significantly lower than those under the corresponding scheme in England (EIBSS). He applied for legal aid to do so, and at the time was in receipt of benefits which meant that he did not have to be income means tested. However, he was refused on the grounds that his capital as a result of such a payment takes him above the capital means test for legal aid. His son brings these proceedings for judicial review of that refusal, on the basis that he as a member of his father's family is affected financially by the refusal of legal aid for the intended proceedings.
The two grounds of the claim are that the refusal of legal aid in reliance upon capital payments from WIBSS discriminates against the claimant contrary to article 14 read with article 8 of the European Convention on Human Rights (ECHR) and/or article 1 of the First Protocol (A1P1) thereto and/or is irrational.
The claimant must surmount several hurdles to succeed. He must show that the refusal to grant his father legal aid is manifestly without reasonable foundation, that he is a victim of such refusal, and that he has standing to bring the claim. If he fails to show that he has an arguable case on any one of these points, then permission must be refused. Upper Tribunal Judge Grubb, sitting as a judge of the High Court upon consideration of the papers came to the conclusion that none of these points are arguable.
The claimant renewed his application for permission before me and was represented by counsel Mr Howells. The defendant was also represented by counsel Mr O'Brien. The hearing was conducted via video platform as it was necessary in the interests of justice to do so. I am grateful to both counsel for their clear and focussed submissions.
Section 6(1) of the Human Rights Act 1998 (the 1998 Act) makes it unlawful for a public authority to act in a way which is incompatible with the rights enshrined in the ECHR, which are set out in schedule 1.
Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority except such as is in accordance with the law and necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A1P1 provides:
“1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Mr Howells' overarching submission is that it is arguable that the claimant has standing to bring this claim as a victim of discrimination. Whilst he recognised that children have no A1P1 rights themselves and that they are not a protected class under Article 14, he submits that in considering the discriminatory effect on parents, the effects on their dependent children must also be taken into account.
He relies upon observations made in the Supreme Court in two cases where the legality of an annual cap on specified welfare benefits and the effect of the cap on dependent children was considered. In each case, the appellants included lone parents and their dependent children, and in each case, the appeals were dismissed by a majority of the Justices. Reference was made to article 3 of the United Nations Convention on the Rights of the Child 1989 (UNCRC), which provides:
“1. In all actions concerning children, whether undertaken by … courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
In R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR 1449 Lord Carnwath giving one of the majority judgments said at paragraph 100:
“It is important also to understand how the interests of children affected by the scheme may be relevant to the legal analysis, either under the Convention itself, or indirectly by reference to article 3(1) of the UNCRC (best interests of children as “a primary consideration”).
As to the Convention, the children have no relevant possessions under A1P1 in their own right; nor are they a protected class under article 14. However, as Lady Hale has said (para 218), the disproportionate impact on women arises because they are responsible for the care of dependent children. Elias LJ said in the Divisional Court (para 62):
“In this case there is no dispute that the rights of the adult claimants under A1P1 (the right to peaceful enjoyment of possessions) are affected by a reduction in the benefits paid to them. And although the child claimants have no A1P1 rights themselves, we agree with CPAG's submission that it would be artificial to treat them as strangers to the article 14/A1P1 arguments. The benefits in each case are paid to the mother to enable her both to feed and house herself and to feed and house her children.”
I agree. Accordingly, in considering the nature of the admittedly discriminatory effect of the scheme on lone parents, and its alleged justification, the effects on their children must also be taken into account.”
In R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21 [2019] 1 WLR 3289, the Supreme Court considered a revised cap. Lord Wilson, in giving the lead judgment of the majority in dismissing the appeal, said this at paragraphs 74 – 77:
“74. In the present case the complaint of discrimination differs from the complaint in [ SG]. The adult victims of the alleged discrimination are now cast not merely as women but as lone parents of children below school age. Moreover these children are now cast as further victims of it in their own right. And, although the lone parents repeat their complaint of discrimination in the enjoyment of their rights under A1P1 of the Convention, both they and their children now complain of it in relation to the enjoyment of their respective rights to respect for their family life under article 8.”
75. In explaining in [ SG] that a breach, if any, of article 3.1 was irrelevant to the alleged discrimination, Lord Reed, Lord Carnwath and Lord Hughes each stressed in the paragraphs cited above that in their view the alleged discrimination could not be said to be directed against children. It is clear that the government cannot import their reasoning into the present proceedings. Equally it undertakes a mammoth task in maintaining the argument that, in setting the terms of the revised cap, it was not taking an action “concerning children” within the meaning of article 3.1. If valid in relation to the revised cap, the argument would have been valid in relation to the original cap. But it was rejected by Lord Carnwath, Lady Hale and Lord Kerr; and it was specifically upheld neither by Lord Reed nor by Lord Hughes. In para 107 Lord Carnwath referred further to General Comment No 14, namely to para 19 in which the committee explained that the duty under article 3.1 applies to all decisions on the part of public authorities which directly or indirectly affect children.
76. Insofar as in the present appeals the children themselves claim a violation of rights of their own under article 14, taken with article 8, their rights should be construed in the light of the UNCRC as an international convention which identifies the level of consideration...
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