R (Carson) v Secretary of State for Work and Pensions

The main legal principles established are that Article 14 of the European Convention on Human Rights (the prohibition on discrimination) applies only in connection with a Convention right and on a prohibited ground, and that the court must determine whether the alleged difference in treatment withstands scrutiny having regard to whether the situations compared are relevantly different. Article 1 of Protocol 1 (peaceful enjoyment of possessions) can bring social security entitlements within the ambit of Article 14, but contributory state pensions do not equate to private property and must be considered in the context of the interlocking UK social security system.

The court held that differential treatment of pensioners resident abroad (who do not benefit from annual uprating in the absence of reciprocal agreements) is not unlawful discrimination: residence abroad is a relevant and material difference from residence in the United Kingdom or in a treaty state, and Parliament and the executive have a wide margin of appreciation in structuring social security and allocating public funds. Similarly, age-based differentiation in benefit rates (jobseeker's allowance and income support for those under 25) was held to be rationally justified by broadly applicable social and administrative considerations.

Background and parties: Two appellants challenged the Secretary of State for Work and Pensions. Mrs Annette Carson, a former United Kingdom contributor who emigrated to South Africa, complained that her United Kingdom retirement pension was frozen at the rate payable when she left the United Kingdom and did not receive later annual upratings because she lived in a non-treaty country. Ms Joanne Reynolds challenged rules which provided lower rates of jobseeker's allowance and income support for claimants under 25.

Procedural history: The appeals came to the House of Lords on appeal from the Court of Appeal ([2003] EWCA Civ 797). The matters were argued at first instance before Stanley Burnton J ([2002] 3 All ER 994) and then on appeal.

Nature of claim and relief sought: Both appellants relied on Article 14 of the Convention in conjunction with other Convention provisions (Article 1 of Protocol 1 for pension and benefits; Article 8 was also invoked in respect of income support). Relief sought was a declaration that the domestic legislative and regulatory provisions discriminated unlawfully and were incompatible with Convention rights.

Issues framed: (i) whether the benefits in question fell within the ambit of the Convention provisions relied upon; (ii) whether the appellants were treated differently from relevant comparators; (iii) whether residence abroad or young age constituted a prohibited ground or "status" under Article 14; (iv) whether the situations compared were analogous or whether there was an objective and reasonable justification for the differential treatment; (v) the intensity of judicial scrutiny and the scope for legislative/executive margin of appreciation in social security policy.

Court's reasoning: The majority assumed without deciding that the pension and benefits could attract Article 1 of Protocol 1 for the purposes of Article 14. They then held that residence abroad and age can be grounds within Article 14 but that both appellants were not in situations requiring equal treatment with the chosen comparators. For Carson the court emphasised the interlocking nature of the UK social security system, the weak analogy between national insurance contributions and private pensions, the national character of social solidarity, and Parliament's role in allocating public funds (including the lawful negotiation of reciprocal up-rating treaties). For Reynolds the court accepted that younger claimants, as a class, have lower living costs and earnings prospects and that a bright-line age distinction at 25 was a rational, administratively workable demarcation. In both appeals the majority concluded that differential treatment was objectively justified and within the margin of appreciation accorded to Parliament and ministers. Lord Carswell dissented in respect of Carson, considering the selection of expatriate pensioners for frozen uprates insufficiently justified.

Appeals dismissed. The majority held that Article 14 was not infringed: residence abroad and young age, while capable of being "status" for Article 14, were relevantly different situations so as to justify differential treatment; the allocation and uprating of social security benefits lie within the legislative/executive margin of appreciation and are subject to limited judicial scrutiny.

Appeal to the House of Lords from the Court of Appeal ([2003] EWCA Civ 797), following first-instance decisions including R (Carson) v Secretary of State for Work and Pensions [2002] 3 All ER 994.