RJM, R (on the application of) v Secretary of State for Work and Pensions

For Article 14, other status means a personal characteristic, but the concept is not unlimited. Relevant considerations include analogy with specified grounds, legal status, choice and whether the distinction is unacceptable having regard to the Convention’s underlying values. Being without accommodation, especially by choice, is not such a status. The property ground concerns ownership or possession of property; lack of accommodation is not itself a property status. Even if Article 14 applied, differential treatment in a social-security scheme would be lawful where rationally justified. Courts allow the state a wide area of judgment in allocating finite resources and will not substitute their own view of social policy.

RJM received income support and a disability premium because of incapacity for work. The Secretary of State stopped the premium for a period during which RJM was homeless and therefore fell within paragraph 6 of Schedule 7 to the Income Support (General) Regulations 1987.

The Administrative Court dismissed RJM’s judicial review claim on 13 July 2006. He appealed, contending that the exclusion breached Article 14 of the Convention read with Article 1 of Protocol 1. The Secretary of State conceded that the claim fell within the ambit of Article 1 of Protocol 1. The central issues were whether being without accommodation constituted an other status or property status, and whether the differential treatment was justified.

1. Appeal dismissed. Sir Anthony Clarke MR gave the leading judgment, with Carnwath and Maurice Kay LJJ agreeing. The Secretary of State’s concession was accepted: for the purposes of the claim, income support, including disability premium, was a possession within Article 1 of Protocol 1. This was accepted despite the earlier domestic approach in Campbell and Carson and Reynolds.
2. Article 14’s reference to other status means a personal characteristic. The protected grounds are not unlimited. Analogy with the specified grounds and whether the distinction is unacceptable having regard to the Convention’s underlying values are relevant considerations. A chosen status can qualify, but choice makes inclusion less likely. The approach was consistent with R (S), Esfandiari, Carson and Reynolds, Hooper and Clift.
3. Being without accommodation was not a personal characteristic or an Article 14 status. The status was not analogous to the specified grounds, was not a legal status, and was substantially a matter of choice. Francis was distinguishable because it concerned a continuing legal and family relationship. The alternative argument based on property also failed: Chassagnou concerned discrimination based on ownership of land, whereas lack of accommodation was not a property status.
4. Alternatively, if Article 14 applied, the distinction was justified. This was a social and economic policy choice involving finite resources and a non-sensitive status. The Secretary of State was entitled to a wide area of judgment and to conclude that targeted support and other programmes were more effective than paying disability premium to disabled people without accommodation. The courts were not entitled to substitute their own policy view.

1. Court of Appeal (Civil Division): in [2007] EWCA Civ 614, dismissed the appeal.
2. Administrative Court, Queen’s Bench Division: on 13 July 2006, Mr James Goudie QC, sitting as a Deputy High Court Judge, dismissed the judicial review claim.