Secretary of State for Work & Pensions v M

Article 14 is not freestanding. A discriminatory measure must fall within the ambit of another Convention right, assessed by reference to the specific measure and complaint.

A stable same-sex relationship should generally be treated as family life under Article 8 where an otherwise identical heterosexual relationship would qualify. Sexual-orientation discrimination requires compelling and proportionate justification. Systemic anomalies, bright-line rules and the time needed for reform do not themselves provide that justification.

Where secondary legislation cannot be read compatibly, the court may disapply the incompatible definition. A claimant must nevertheless show that the discriminatory element has directly and appreciably affected them.

Two appeals were heard together by the Court of Appeal. M challenged the calculation of her child-support liability because the regulations recognised the finances of an opposite-sex partner but not those of a same-sex partner. Ms Langley challenged the refusal of housing benefit under an anti-abuse rule applying where rent was paid to a former opposite-sex partner.

The Social Security Commissioner had upheld the decision in M’s favour on 1 October 2003, but dismissed Ms Langley’s appeal on 22 September 2003. The appeals concerned the ambit of Articles 8 and 14, comparability, justification, the requirement that a claimant be a victim, and the proper remedy under the Human Rights Act 1998.

By a majority, both appeals were dismissed. Lord Justice Kennedy dissented in M’s case and would have allowed the Secretary of State’s appeal.

1. M’s case. The majority held that Article 14 was engaged through M’s present family life. A stable same-sex relationship could be treated as family life under Article 8. The child-support scheme made allowance for the joint expenses of an absent parent’s new household, bringing the relevant provisions within the ambit of Article 8. The exclusion of same-sex partners therefore created a difference in treatment based on sexual orientation.
2. The comparison was between M and an absent parent whose circumstances were identical save for the sex of the partner. Different treatment elsewhere in the child-support or social-security system did not defeat comparability. The Secretary of State had advanced no substantive justification. The existence of an entrenched anomaly, a bright-line rule, or the need for methodical legislative reform could not itself justify continuing discrimination. Those practical considerations went to remedy.
3. Under section 3(1) of the Human Rights Act 1998, the definition of an unmarried couple in the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 could not properly be expanded through the context-saving words or the Interpretation Act 1978. The appropriate solution was to disapply the restrictive definition, leaving the concepts of family and partner capable of including same-sex relationships.
4. Ms Langley’s case. The relevant issue was the discriminatory anti-abuse provision, not the housing-benefit scheme as a whole. Under section 7 of the Human Rights Act 1998, she had to show that treating same-sex former partners in the same way would have made her appreciably better off. She could not do so. Removing the anti-abuse provision altogether would challenge the provision itself, rather than its discriminatory element. There was therefore no justiciable wrong or relief.
5. Neuberger LJ additionally considered that Article 1 of the First Protocol could provide an alternative route for M, but this was not necessary to the majority’s common basis. Kennedy LJ considered that neither Article 8 nor Article 1 of the First Protocol was sufficiently engaged.

1. Court of Appeal (Civil Division). In [2004] EWCA Civ 1343, the majority dismissed both appeals.
2. Social Security Commissioner. Commissioner Jacobs upheld M’s successful appeal on 1 October 2003, but dismissed Ms Langley’s appeal on 22 September 2003.
3. Appeal tribunals. The Middlesbrough appeal tribunal decided in M’s favour. The Leeds appeal tribunal rejected Ms Langley’s claim.