Carson & Anor v Secretary of State for Work and Pensions

Article 14 applies to discrimination within the ambit of another Convention right. The claimant must show different treatment from persons in an analogous situation and the absence of objective and reasonable justification.

For Article 1 of the First Protocol, entitlement to a social security benefit was a possession where contributions had been exacted as a condition of entitlement. The Convention did not guarantee a benefit of any particular amount or a right to acquire possessions.

Residence-based pension uprating and age-related jobseeker’s allowance were objectively justified. Courts should respect the broad decision-making responsibility of the elected branches in macro-economic and social-security policy unless the measure lacks a reasonable foundation.

Two claimants appealed from dismissals of applications for judicial review by the Administrative Court. Ms Carson, a United Kingdom pensioner resident in South Africa, challenged the withholding of annual increases to her retirement pension. Ms Reynolds challenged the lower rates of contribution-based jobseeker’s allowance and income support paid to single claimants aged between 18 and 24.

Both relied principally on Article 14 of the European Convention on Human Rights read with Article 1 of the First Protocol. Ms Carson also relied on Article 1 of the First Protocol alone. Ms Reynolds additionally invoked Article 8 and Article 1 of the First Protocol alone.

The principal questions were whether the benefits fell within the relevant Convention rights, whether the claimants had been treated differently from persons in analogous situations, and whether any difference was objectively and reasonably justified.

1. Both appeals were dismissed unanimously. Laws LJ delivered the judgment, with which Rix LJ and Simon Brown LJ agreed.

2. Article 1 of the First Protocol protects existing possessions. It does not guarantee a right to acquire property or a pension or benefit of any particular amount. Domestic provisions defining the amount payable did not deprive either claimant of a possession. Neither claimant established a violation of that Article taken alone.

3. Article 14 has no independent existence. It applies where the facts fall within the ambit of a substantive Convention right, there is different treatment on a prohibited ground between persons in analogous situations, and the difference lacks objective and reasonable justification. Age and place of residence were each a status for this purpose.

4. On the Strasbourg jurisprudence then applicable, a social-security entitlement was a possession for Article 1 of the First Protocol where contributions had been exacted as a condition of entitlement. Ms Reynolds’ contribution-based jobseeker’s allowance therefore fell within the Article’s ambit. Her non-contributory income support did not. General welfare payments did not fall within Article 8 merely because the claimant experienced hardship. Article 8 imposed no general obligation to provide a home or financial assistance supporting family life.

5. Ms Carson was not in a relevantly analogous position to pensioners living in the United Kingdom or in foreign countries where uprating was paid. The uprating scheme addressed inflation in Great Britain. Overseas pensioners lived under differing economic, taxation and social-security conditions and were affected by exchange rates. Alternatively, withholding the uprate was objectively justified because its rationale did not necessarily apply abroad. The substantial public cost and the elected branches’ responsibility for macro-economic policy were also legitimate considerations.

6. Claimants below and above 25 were sufficiently similar to require justification for the age distinction in jobseeker’s allowance. The distinction nevertheless pursued reasonable social and administrative objectives, including differing earnings expectations and living arrangements, encouragement of shared family living, hardship protection and clear administration. Selection of 25 was within the range reasonably open to the Secretary of State.

• Court of Appeal (Civil Division): Both appeals were dismissed by [2003] EWCA Civ 797. Permission to appeal to the House of Lords was refused.
• Administrative Court — Carson: Stanley Burnton J dismissed Ms Carson’s claim for judicial review on 22 May 2002 and granted permission to appeal. No neutral citation is stated.
• Administrative Court — Reynolds: Wilson J dismissed Ms Reynolds’ claim for judicial review on 7 March 2002. Sedley LJ subsequently granted limited permission to appeal. No neutral citation is stated.