Francis v Secretary of State for Work and Pensions

Article 14 discrimination may arise where a welfare benefit treats differently persons whose situations are relevantly similar in light of the benefit’s purpose. “Other status” requires a personal characteristic, but that characteristic may be chosen and need not be immutable. A legal relationship conferring continuing parental responsibility can qualify.

Administrative convenience and the desirability of bright-line benefit rules are relevant, but cannot alone justify excluding an analogous group. Rational justification requires a real reason for the distinction. The interpretive duty under the Human Rights Act 1998 cannot be used to rewrite regulations by adding a new category of entitlement. A declaration may instead provide an effective remedy while leaving reformulation to the responsible authority.

The appellant cared for her infant nephew under a residence order and bore the costs of bringing him into her household. She satisfied the means and professional-advice conditions for a Sure Start Maternity Grant, but did not fall within the categories of birth parent, adopter or intended parent through surrogacy specified by regulation 5.

A decision maker, the Social Security Appeal Tribunal and a Social Security Commissioner rejected her claim. The Commissioner held that her position was not analogous to that of an adopter because a residence order had materially narrower legal effects than an adoption order.

The Commissioner granted permission to appeal on the general question whether benefit claimants holding residence orders should be treated like birth or adoptive parents. The central issues were whether the distinction concerned an analogous situation and an “other status” under article 14, whether it was objectively justified, and what remedy was available.

1. Appeal allowed unanimously. The facts were accepted as falling within the ambit of article 8. It was therefore unnecessary to decide whether article 1 of Protocol 1 also applied.

2. For the purpose of the Maternity Grant, the appellant was in an analogous or relevantly similar situation to an adoptive mother. Although adoption and residence orders have significantly different legal effects, those differences were immaterial to a benefit intended to meet the costs associated with a new baby in a low-income household. The appellant had parental responsibility, actually cared for the child and bore those costs.

3. The difference in treatment was based on an “other status” within article 14. Binding authority required that status to consist of a personal characteristic. Such a characteristic need not be inherent or immutable and may result from choice. A residence order was not merely an historical event: it created a continuing relationship between the holder, who acquired parental responsibility, and the child. That relationship and its obligations constituted a personal characteristic.

4. The distinction required rational rather than severe scrutiny, but the Secretary of State had not established objective justification. Administrative convenience and bright-line benefit rules were relevant considerations. They could not, without an additional substantive reason, justify excluding persons in analogous situations. The evidence did not establish serious administrative consequences, and the suggested reliance on the natural parent’s continuing responsibility was theoretical where that parent contributed nothing and could not be compelled to meet the relevant costs.

5. Section 3(1) of the Human Rights Act 1998 could not make regulation 5(1)(b) compatible by treating residence-order holders as an additional category. That would rewrite rather than interpret the provision. The appropriate remedy was a declaration that the appellant was entitled to the grant, leaving the Secretary of State to reformulate the Regulations to remove the discrimination.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously and a declaration was granted that the appellant was entitled to the Sure Start Maternity Grant: [2005] EWCA Civ 1303.
2. Social Security Commissioner: The Commissioner dismissed the claimant’s appeal, holding that a residence-order holder was not in an analogous position to an adopter and did not possess the relevant status for article 14 purposes.
3. Social Security Appeal Tribunal: The Tribunal dismissed the appeal from the decision maker’s refusal of the grant.