Secretary of State for Work & Pensions v M

The Court of Appeal examined whether elements of the child support and housing benefit schemes which treat members of same‑sex relationships differently from members of opposite‑sex relationships engage the Convention rights and, if so, whether the difference in treatment is justified.

The court analysed the scope (the "ambit") of Article 8, Article 14 and Article 1 of Protocol No.1 and considered the effect of the Human Rights Act 1998 (notably ss.3 and 6) on subordinate legislation and the appropriate remedies. Key statutory provisions considered included Schedule 1 to the Child Support Act 1991, the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 (in particular Regulation 1(2), Regulation 11 and Regulation 15(3)), the Housing Benefit (General) Regulations 1987 (notably Regulation 7(1)(c)(i)) and s.137 of the Social Security Contributions and Benefits Act 1992.

The judges divided on some points of principle and remedy but the operative result was that the appeals were dismissed. The court held (i) that the child support scheme’s treatment of same‑sex couples falls within the scope of Convention protection in the relevant respects and implicated Article 14 read with Article 8 (and was susceptible of being read down or disapplied in order to remove the discriminatory effect), and (ii) that the particular housing benefit anti‑abuse rule did not give rise to a justiciable Convention breach for the appellant in Ms Langley’s case because she was not a victim of the discriminatory element and the anti‑abuse provision lay outside the ambit of Article 8 as applied to her facts.

The appeals concerned two related but distinct claims under the Human Rights Act 1998. The Secretary of State appealed a decision that the child support regulations discriminated against an absent parent, M, now living in a same‑sex relationship, by excluding her partner’s income and housing costs from the assessment that applies to opposite‑sex partners. Separately, Cynthia Langley appealed a refusal of housing benefit when she paid rent to a former opposite‑sex partner under an anti‑abuse rule which does not apply to former same‑sex partners.

Procedural posture: both cases were heard together on appeal from the Social Security Commissioner following decisions of appeal tribunals. Mr Commissioner Jacobs had upheld the tribunal in M’s favour in relation to the child support calculation and had rejected Ms Langley’s human rights challenge to the housing benefit anti‑abuse rule. The matters reached the Court of Appeal as consolidated appeals ([2004] EWCA Civ 1343).

Reliefs sought: M sought a Convention‑compatible reading or disapplication of the child support regulations so that same‑sex partners would be treated as "family"/"partner" for the purposes of calculating assessable and protected income. Ms Langley sought relief to make her eligible for housing benefit or, alternatively, a Convention‑compliant interpretation of the anti‑abuse rule.

Issues framed:

• Whether the child support scheme and the housing benefit anti‑abuse provision fall within the ambit of Article 8 or Article 1 of Protocol No.1 so that Article 14 is engaged;
• Whether differential treatment on grounds of sexual orientation amounted to unlawful discrimination under Article 14; and
• What remedies are open under the Human Rights Act 1998 (ss.3 and 6) for incompatible subordinate legislation and how to balance legal certainty and practical government reform.

Court’s reasoning (concise):

• The court reviewed Strasbourg and domestic authority (including Fitzpatrick, Karner, Ghaidan and related jurisprudence) and concluded that same‑sex relationships can, in principle, fall within the ambit of Article 8 in contexts where the measure impinges on respect for family life or the home. The court held that the child support scheme’s allowance for a new partner’s finances is a modality by which family life is respected and so falls within Article 8; exclusion of same‑sex partners therefore engaged Article 14.
• The court found that the child support regulations discriminated on grounds of sexual orientation and that no adequate justification had been advanced by the Secretary of State. The judges considered remedies under s.3 and s.6 of the Human Rights Act. The leading opinion accepted that a Convention‑compatible reading or disapplication of the heterosexual definitions in the MASC Regulations could be appropriate to remove the discrimination (subject to tailoring and limits), whereas wholesale judicial legislation would be inappropriate.
• In Ms Langley’s case the court concluded the anti‑abuse provision in Regulation 7(1)(c)(i) had an objective anti‑fraud purpose and, on the facts, she could not show she was a "victim" of a discriminatory application in the Convention sense; the Commissioner’s refusal to disapply the rule therefore stood.

Outcome: the consolidated appeals were dismissed by the court. The reasons emphasised careful analysis of ambit, comparability and justification under Article 14, restraint in framing remedies that would impinge on interlocking social security schemes, and the distinction between maladaptive subordinate provisions (capable of reading‑down or disapplication) and rule‑based anti‑abuse measures where the claimant cannot show victim status.

Appeals dismissed. The Court of Appeal (by majority) dismissed the consolidated appeals. The court held that the child support scheme’s definitions discriminated on grounds of sexual orientation and engaged Article 14 read with Article 8; the appropriate doctrinal remedies include reading‑down or disapplication of subordinate provisions where possible under the Human Rights Act, but relief must be carefully tailored to the statutory scheme. In the housing benefit case the anti‑abuse provision was held not to give rise to a justiciable Convention breach for the claimant because she was not a "victim" of the discriminatory element and the particular rule was outside the ambit of Article 8 as applied to her facts; accordingly no relief was required.

On appeal from the Social Security Commissioner (decisions of Commissioner Jacobs: Ms Langley decision dated 22 September 2003; M decision dated 1 October 2003). The appeals were heard together in the Court of Appeal (Civil Division) and determined by the Court in the neutral citation [2004] EWCA Civ 1343.