Secretary of State for Defence v Hopkins

An Order in Council made under section 12(1) of the Social Security (Miscellaneous Provisions) Act 1977 is primary legislation for the purposes of the Human Rights Act 1998. A statutory condition for an unmarried dependant’s allowance was not absurd merely because a particular claimant could never have satisfied it. Article 6 cannot create a substantive entitlement absent from domestic law. Article 14 requires identification of a Convention ground of discrimination, not merely different treatment. A non-contributory social-security benefit did not fall within the ambit of Article 8 or Article 1 of Protocol 1 on the facts. The court could not rewrite the statutory condition by substituting a test of reasonable length or a genuine and long-term relationship.

The respondent, a former serviceman receiving a war pension and unemployability allowance, claimed an additional dependant’s allowance for a woman with whom he had cohabited since 1991. Article 18(5) of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983, read with paragraph 51A of Schedule 4, required cohabitation to have begun six months before the commencement of service and to continue until the claim.

The Pensions Appeal Tribunal treated the literal result as absurd and reinterpreted the condition. It also considered Convention discrimination. The Secretary of State appealed. The central issues were the proper construction of the Order, the applicability of Articles 6, 8 and 14 of the Convention and Article 1 of the First Protocol, and the availability of a Convention-compatible reinterpretation.

1. Appeal allowed. The Pensions Appeal Tribunal’s decision was quashed.
2. Article 18(5), read with paragraph 51A of Schedule 4 to the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983, deliberately required the qualifying cohabitation to have begun six months before service and to continue to the date of application. The possibility that individual claimants could never satisfy the condition, including because of the dependant’s age, did not make the result absurd.
3. The Order was made under section 12(1) of the Social Security (Miscellaneous Provisions) Act 1977. An Order in Council made in exercise of the royal prerogative was delegated legislation in a general sense, but primary legislation within section 21 of the Human Rights Act 1998. A reinterpretation which replaced the statutory condition with a period of reasonable length, or with a genuine and long-term relationship, was impermissible and uncertain.
4. Article 6(1) was not engaged merely because the statutory condition created a barrier to success before the Pensions Appeal Tribunal. Article 6 could not create a substantive right to an allowance which domestic law did not confer.
5. For Article 14, it was necessary first to identify a discriminatory difference in treatment falling within one of the Convention grounds. The relevant difference was the date on which cohabitation began, rather than unmarried status. That distinction was not a status falling within Article 14. The Article 8 claim therefore failed at the gateway stage.
6. In any event, the allowance did not fall within the ambit of Article 8. The denial of financial assistance affected the claimant’s finances, but there was no evidence that it affected the exercise or organisation of family life. Nor did the non-contributory welfare benefit fall within the ambit of Article 1 of the First Protocol. It was payable by reason of service-related disablement and need, not as part of an overall remuneration package or contribution-based entitlement.
7. Had a Convention right been engaged, the restriction would have been justified. It pursued the welfare purpose of the scheme, delineated responsibility for relationships existing shortly before service, and represented a permissible budgetary limit. The availability of marriage as an alternative further reduced any interference.

The judgment describes an appeal from the Pensions Appeal Tribunal. The Administrative Court allowed the appeal and quashed the Tribunal’s decision.