Esfandiari & Ors v Secretary of State for Works and Pensions

In Convention discrimination appeals, an appellate court may permit a respondent to introduce late evidence and argument on justification where the issues are difficult and developing, and determining the case without justification would be theoretical or incomplete. The court may proceed without the specialist tribunal’s view where the new material concerns practical and policy matters within the appellate court’s competence. Permission should allow the appellants a fair opportunity to respond and may attract a costs sanction. Obiter, the court suggested that indirect discrimination may ultimately be treated in law like direct discrimination, although the factual application of Convention rights may differ.

The appellants challenged a funeral-payment rule excluding payments for funerals outside the United Kingdom. They alleged indirect discrimination under Article 14 of the European Convention, read with Article 8, Article 9 or Article 1 of the First Protocol.

The Social Security Commissioner, Mr Commissioner Howell QC, rejected the claims because the case was not within the ambit of the relevant Convention rights. The Secretary of State had not advanced evidence or argument on justification before the Commissioner and applied to the Court of Appeal, late in the proceedings, for permission to introduce such evidence and amend the respondent’s notice. The central issue was whether that application should be granted and on what procedural and costs terms.

Application granted. Lord Justice Buxton permitted the Secretary of State to rely on Miss Munt’s witness statement and granted an extension of time for the respondent’s notice.

1. It would be unsatisfactory to determine a difficult case at the threshold of developing Convention jurisprudence as a theoretical or moot-like exercise while leaving justification unaddressed. The approach was reinforced by R (Williamson) v Secretary of State for Employment [2005] 2 AC 246, where the Secretary of State was permitted to raise justification arguments again after abandoning them in the Court of Appeal.
2. The discrimination inquiry was not merely formal. The factors relevant to discrimination and justification could substantially overlap, making it artificial to investigate discrimination properly without considering the justification evidence. The reasoning in Carson was relevant to that conclusion.
3. The court recognised the normal reluctance of an appellate court to decide an issue without the specialist tribunal’s view. The newly proposed material concerned practicality and policy, however, and did not require an expert determination which the Court of Appeal was unqualified to make.
4. The appellants were given six weeks to file further evidence and a skeleton argument. The costs of and occasioned by introducing the justification argument and evidence, including the application, were ordered to be the appellants’ costs in any event.
5. Obiter, Lord Justice Buxton expressed the view that indirect discrimination might prove legally no different from direct discrimination, although different factual circumstances might lead to a different application of the Convention Articles.

1. Court of Appeal (Civil Division) On 6 October 2005, the court granted the Secretary of State permission to adduce justification evidence, amend the respondent’s notice and proceed on the revised timetable, subject to costs.
2. Social Security Commissioner Mr Commissioner Howell QC dismissed the appellants’ claims because he was not satisfied that they fell within the ambit of Article 14 read with the relevant Convention rights.