Esfandiari & Ors v Secretary of State for Work & Pensions

A condition limiting means-tested funeral payments to funerals held in the United Kingdom does not discriminate against recent migrants contrary to article 14. A shared preference for burial abroad, based on personal, family, social or religious reasons, does not without more constitute a protected status. Nor was disproportionate prejudice to recent migrants as a group established.

Alternatively, distinctions of this kind concern social policy and the allocation of public funds. Rational considerations of cost and administrative complexity provide sufficient justification. The state's margin of appreciation is wider than for distinctions which inherently deny equal respect, such as discrimination based on race or sex.

Four recipients of means-tested benefits arranged for deceased family members to be buried in Iran, Bangladesh or Pakistan for personal, family, social or religious reasons. Their claims for funeral payments were refused because Social Fund Maternity and Funeral Expenses (General) Regulations 1987, regulation 7(1)(b)(ii), generally required the funeral to be held in the United Kingdom.

The Social Security Commissioner found indirect discrimination against recent migrants but held that the treatment did not fall within the ambit of a substantive Convention right. The claimants appealed, relying on article 14 together with article 8 and article 1 of the First Protocol to the European Convention on Human Rights.

The central questions were whether the territorial condition constituted discrimination against a protected group, whether it was justified and, if necessary, whether the claims fell within the ambit of either substantive right.

1. The appeals were dismissed unanimously. The funeral-payment scheme offered a suitable funeral in the United Kingdom to every eligible person of inadequate means, irrespective of personal characteristics or status. Each appellant could have used that provision but chose burial abroad for understandable personal reasons. The shared desire for burial abroad did not make recent migrants a group requiring special protection under article 14.

2. “Other status” ordinarily concerns personal characteristics and cannot be extended without limit to criteria having neither analogy with the expressly prohibited grounds nor special significance within the Convention. It was artificial to define recent migrants as a protected group merely because they might be more likely to retain links with another country.

3. Alternatively, any difference in treatment was justified. A distinction concerning voluntary residence, personal choices and eligibility for publicly funded benefits belongs to the category in which rational social-policy considerations suffice. The Secretary of State's concerns that extending the scheme would increase cost and administrative complexity were rational and fell within the state's margin of appreciation.

4. The result in O'Flynn v Chief Adjudication Officer was distinguishable. Migrant workers from European Union member states belonged to a special legal order and enjoyed protections which recent migrants from other countries did not. Even if Convention law recognised the alleged group, the evidence did not show that the territorial condition was disproportionately prejudicial to recent migrants as a whole.

5. Although unnecessary to the decision, a funeral payment fell within the ambit of article 8. Providing financially disadvantaged families with the means to arrange a decent funeral demonstrated state respect for a solemn aspect of family life. Article 8 did not, however, confer a right to a particular form or location of burial.

6. It was unnecessary to decide whether article 1 of the First Protocol was engaged. On the test stated in Stec v United Kingdom, the claimants would have had an enforceable entitlement but for the territorial condition. The apparent tension between that test and authority excluding conditional claims from “possessions” was left unresolved.

1. Court of Appeal (Civil Division): By [2006] EWCA Civ 282, unanimously dismissed all four appeals.
2. Social Security Commissioner: Mr Commissioner Howell QC found indirect discrimination against recent migrants but held that the refusal of funeral payments did not fall within the ambit of a substantive Convention right. The claims therefore failed under article 14.
3. Secretary of State: Refused each funeral-payment claim because the funeral had not been held in the United Kingdom as required by regulation 7(1)(b)(ii) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987.