The Queen (on the application of Lisa Vincent and Others) v Secretary of State for Work and Pensions

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMrs Justice Andrews
Judgment Date23 July 2020
Neutral Citation[2020] EWHC 1976 (Admin)
Date23 July 2020
Docket NumberCase Nos: CO/2515/2018 AND CO/2594/2018

[2020] EWHC 1976 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HONOURABLE Mrs Justice Andrews DBE

Case Nos: CO/2515/2018 AND CO/2594/2018

Between:
The Queen (on the application of Lisa Vincent and others)
Claimant
and
Secretary of State for Work and Pensions
Defendant
And Between:
The Queen (on the application of JD, a protected party, by his father and litigation friend JM)
Claimant
and
Secretary of State for Work and Pensions
Defendant

Ian Wise QC and Kirsten Heaven (instructed by Harding Evans) for the Claimants in the Vincent claim

Jamie Burton and Daniel Clarke (instructed by Central England Law Centre) for the Claimant in the JD claim

Edward Brown and Paul Skinner (instructed by Government Legal Department) for the Defendant

Hearing dates: 9, 10 and 11 June 2020

Approved Judgment

Mrs Justice Andrews

INTRODUCTION

1

In recent years, the Government has introduced a range of measures designed to reduce and streamline the welfare benefits system. Among those measures was a change from the payment of grants by way of support for mortgage interest payments (“SMI”) to a loan scheme, Loans for Mortgage Interest (“LMI”) which was brought into effect by the Loans For Mortgage Interest Regulations 2017 (“the LMI Regulations”) made pursuant to sections 18, 19 and 21 of the Welfare Reform and Work Act 2016 (“the 2016 Act”). The parts of the LMI Regulations with which this case is concerned came into force on 27 July 2017.

2

The three Claimants in CO/2515/2018 (“the Vincent claim”) are two severely disabled women who cannot work and who are in receipt of Disability Living Allowance (“DLA”) whose respective partners left work to care for them and are in receipt of Carer's Allowance; and the dependent child of the Second Claimant. I shall refer to the Second and Third Claimants respectively as “Mrs B” and “DB” or “D”. JD, the Claimant in CO/2594/2018 (“the JD claim”) is a young man with multiple physical and learning disabilities who lacks capacity and brings this claim by his father and litigation friend, JM.

3

By these claims for judicial review the Claimants seek to challenge the provisions of Regulation 16 of the LMI Regulations on grounds of unlawful discrimination under Article 14 of the European Convention on Human Rights (“ECHR”) read in conjunction with Article 1 of Protocol 1 (“A1P1”) and/or Article 8. In both claims, the challenge is principally aimed at the provision within Regulation 16(1)(a) that, upon sale of a property, the outstanding loan becomes “ immediately due and repayable.” This was referred to in submissions as the “repayment on sale requirement” or “RSR” and I shall adopt the same shorthand in this judgment.

4

Article 14 ECHR provides, so far as material that:

the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion… or other status.”

In order to show a breach of Article 14, it is sufficient that the facts fall within the ambit of another substantive Convention right; the claimant need not establish a violation of that other right.

5

It is accepted by the Defendant (“the Secretary of State”) that an entitlement to welfare benefits, such as LMI, and the circumstances in which such a benefit must be repaid, fall within the ambit of A1P1 (see Stec v The United Kingdom (Admissibility) (2005) 41 EHRR 18 at [52] to [54].) She also accepts that the RSR falls within the ambit of Article 8 (see in this regard the illuminating analysis of Leggatt LJ in SC v Secretary of State for Work and Pensions [2019] EWCA Civ 615, [2019] 1 WLR 5687 at [53]–[59]), whilst noting that Article 8 will rarely, if ever, impose a positive duty on the State to provide welfare support ( ibid at [29]–[36]).

6

The Claimants in the Vincent claim contend that the LMI scheme, by not exempting them from the repayment provisions altogether, or alternatively by not exempting them from the RSR, unlawfully discriminates against them as severely disabled people with a partner in receipt of Carer's Allowance (Ground 1) and/or as dependent children of such persons (Ground 2). Mr Wise QC, who together with Ms Heaven represented those Claimants, submitted that people whose disabilities are such as to qualify for Carer's Allowance and their dependent children are in a significantly different position to others who qualify for LMI (including other severely disabled people, such as JD).

7

The challenge in this claim is put solely on a Thlimmenos basis, i.e. a failure to treat differently persons whose situations are significantly different (see Thlimmenos v Greece (2001) 31 EHRR 15 and R(SG and others) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR 1449 per Lord Reed JSC at [12]). Mr Wise relied in particular on Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250. In that case, regulations automatically suspending DLA after a child had been an in-patient in an NHS hospital for more than 84 days, were held by the Supreme Court to unlawfully discriminate against a severely disabled child who was required to remain in hospital for periods longer than 84 days, in comparison with other severely disabled children who were not required to remain in hospital for such long periods.

8

The challenge in the JD claim is more narrowly focused. Mr Burton, who appeared with Mr Clarke for JD, contends that the RSR indirectly discriminates against (i) disabled people generally and/or (ii) disabled people with high level needs which put them at higher risk of needing to move to another property. Mr Burton refers to the latter category as “enhanced risk claimants”. The JD claim is put primarily on the basis of indirect discrimination, although it is also argued as Thlimmenos discrimination.

9

JD claims discrimination not only under Article 14 ECHR but also under ss.19 and 29 of the Equality Act 2010, although it is accepted by Mr Burton that if the claim succeeds under Article 14 there is no need to consider the Equality Act, and if it fails, it cannot succeed on those alternate grounds. (Mrs Vincent also advanced a claim for indirect discrimination under the Equality Act, but this was not pursued orally by Mr Wise as an independent ground). Finally, JD contends that there was a breach of the public sector equality duty under s.149 of the Equality Act (“PSED”).

10

JD's approach is more nuanced than that of the claimants in the Vincent claim; he accepts that in many cases, even where the recipient of the LMI is disabled, it would be appropriate to require repayment (or some repayment) on sale of the existing property. However he contends that the failure to allow a disabled recipient of LMI to transfer (or “port”) the loan to a new property in circumstances where this is necessary to enable them to acquire a new property in order to meet their disability-related needs, is objectively unjustified. His challenge therefore focuses on the automatic nature of the RSR, the key contention being that there should be more flexibility, or that some form of discretion should be introduced which would avoid a situation arising in which repayment of the LMI would mean that a severely disabled person cannot afford to move to more suitable accommodation when the need arises.

11

The Secretary of State resists both claims. She accepts that a disabled person is someone who has an “other status” for the purposes of Article 14. She also accepts that the cohort of disabled persons whose carers are in receipt of Carer's Allowance would satisfy the status requirements of Article 14, because the receipt of the allowance serves as a proxy for a requirement of a certain level of care. However, she does not accept that “disabled people with high level needs which put them at higher risk of needing to move house” is a status, as these concepts are too vague and imprecise, and there is no means of measuring or identifying either the “high level needs” or an “enhanced” risk of needing to move.

12

It is now well established that a status need not be innate or an inherent aspect of an individual's personality. It may be a feature of a person's circumstances or living situation on which a legal consequence depends: see the discussion of the domestic and European case law by Leggatt LJ in SC (above) at [70] – [76]. Yet however broad the concept of “status” may be, it must be possible to identify those who meet it and those who do not, by reference to readily ascertainable objective criteria. In Mathieson, for example, the yardstick was the duration of the child's stay in hospital and in R (TP) v Secretary of State for Work and Pensions [2020] EWCA Civ 37 it was the fact that the severely disabled person had moved home across a local authority boundary.

13

I do not accept that the alternative “status” in the JD claim of “enhanced risk claimants” is a “status” for Article 14 purposes, as the features or criteria said to define it are far too nebulous to produce an objectively identifiable cohort. JD seeks to define status not by reference to something concrete, but by reference to a “risk” which is said to be “enhanced” by reason of his needs. JD has not said by what measure it is to be determined that, by reference to their respective needs, X has an “enhanced risk” of a need to move compared with Y.

14

Mr Brown, who appeared with Mr Skinner on behalf of the Secretary of State, accepted that the RSR has some differential impact on disabled persons generally, but contended that this was justified. He submitted...

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