R (Carson) v Secretary of State for Work and Pensions

Key legal principles and decision: The Court of Appeal dismissed both appeals. It held that Article 1 of the First Protocol (Article 1P) does not guarantee a right to acquire property or a right to any particular level of social security benefit; Article 1P protects only existing "possessions". The Strasbourg line of authority distinguishes contributory benefits (or benefits linked to contributions) from non-contributory benefits for the purposes of Article 1P. Where a benefit is a contributory or contribution-linked pecuniary right, any qualification or reduction engages Article 1P and must satisfy Article 14 (non-discrimination) if discrimination is alleged. The court concluded that income support (a non-contributory benefit) was not protected for Article 1P purposes in this case, so Reynolds could not rely on Article 14 read with Article 1P in relation to income support; Carson’s complaint about frozen pensions failed because suitable comparators were not in an analogous position and, in any event, differential treatment was objectively justified given the statutory design, historical bilateral arrangements and legitimate public finance considerations.

Important statutory provisions considered included s.4(1) Jobseekers Act 1995, regulation 79 of the Jobseeker's Allowance Regulations 1996, various provisions of the Social Security Contributions and Benefits Act 1992 (notably ss.20, 21, 44, 113, 150 and 179), the Income Support (General) Regulations 1987, and the Social Security Benefit (Persons Abroad) Regulations 1975 and related up-rating regulations.

The appeals concerned challenges to the levels or uprating of State benefits and their compatibility with the European Convention on Human Rights. Carson (retirement pension) and Reynolds (jobseeker's allowance/income support) sought judicial review of decisions and subordinate legislation that resulted in frozen or lower benefit rates for certain categories of recipients.

Background and parties:

• Carson: a former UK contributor, resident in South Africa since 1990, whose State retirement pension was "frozen" and not uprated from April 2001 because she was resident in a country where uprating is not paid.
• Reynolds: a single claimant born 1976 who received contributions-based jobseeker's allowance and income support at the lower rate applicable to single claimants aged 18–24; had she been 25 or over she would have received a higher weekly amount.

Procedural posture: Both appeals came from dismissals in the Administrative Court: Reynolds from Wilson J (dismissed 7 March 2002) with limited permission to appeal granted by Sedley LJ; Carson from Stanley Burnton J (dismissed 22 May 2002) with permission to appeal.

Relief sought: Both appellants sought declarations and quashing of subordinate provisions under the Human Rights Act 1998 and Convention rights, arguing unlawful discrimination contrary to Article 14 read with Article 1 of Protocol No. 1 and in Reynolds alternatively Article 8 read with Article 14.

Issues framed by the court:

• Whether Article 1P taken alone secured the appellants’ claims to a particular level of benefit.
• Whether payments of non-contributory benefits (income support) are "possessions" for Article 1P purposes.
• Whether there was discriminatory treatment engaging Article 14 read with Article 1P (and, in Reynolds, Article 8 read with Article 14) and, if so, whether differential treatment was objectively and reasonably justified.
• Whether the alleged comparator groups were in an analogous position to the claimants.

Court reasoning and conclusions:

• The court accepted Strasbourg authority that Article 1P protects only existing possessions and does not guarantee acquisition of property or entitlement to a particular pension or benefit level. Earlier Strasbourg decisions (e.g. Muller, JW & EW, Corner) showed that contributory links are relevant to whether a benefit is a "possession". Gaygusuz was analysed and the court concluded it did not displace the settled line: the presence of a contribution link remains central.
• On this basis Reynolds could rely on Article 1P only in respect of contribution-linked jobseeker’s allowance, not in respect of income support. The court rejected a standalone Article 8 strategy: Article 8 does not generally impose broad positive obligations to provide subsistence benefits.
• In Carson the court found that proposed comparators (UK-based pensioners or expatriates in countries receiving uprates) were not in an analogous situation in respect of the statutory scheme which is expressly designed to relate uprating to UK price inflation and to decisions and bilateral arrangements. Even if comparators existed, the differential treatment was objectively justified by the statutory design, historical reciprocal agreements, legitimate differences in local economic conditions and the public finance implications of extending uprating; the courts should give a measure of deference in the macro-economic/social policy field.
• The court therefore dismissed both appeals and refused leave to appeal to the House of Lords.

Appeals dismissed. The court held that Article 1 of Protocol No. 1 does not guarantee entitlement to a particular level of benefit and protects only existing possessions; contributory or contribution-linked benefits attract Article 1P protection, but non-contributory benefits do not in the circumstances here. Reynolds could not rely on Article 1P in respect of income support and Article 8 did not extend to impose the broad welfare obligation claimed. Carson failed because the proposed comparators were not in an analogous position and, in any event, differential treatment was objectively justified by statutory design, bilateral arrangements and legitimate public finance considerations.

Both appeals were from orders of the Administrative Court dismissing applications for judicial review. Reynolds appealed from the judgment of Wilson J given on 7 March 2002; limited permission to appeal was given by Sedley LJ on 1 July 2002. Carson appealed from the judgment of Stanley Burnton J given on 22 May 2002; permission to appeal was granted by the judge below. The appeal to the Court of Appeal is reported as [2003] EWCA Civ 797.