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

The House of Lords dismissed the appellant's challenge to the exclusion of people "without accommodation" from the disability premium under the Income Support (General) Regulations 1987 (in particular para 6 of Schedule 7 and regulation 17). The court held that disability premium is capable of falling within the ambit of Article 1 of Protocol 1 (A1P1) to the European Convention, following the European Court of Human Rights' decision in Stec, and that homelessness can constitute an "other status" for the purposes of Article 14. Nevertheless, the difference in treatment was held to be justified: the Secretary of State's policy objectives (targeting assistance towards getting rough sleepers into accommodation and the view that many costs covered by the premium do not apply to rough sleepers) fell within the state's margin of appreciation and had a sufficient objective and reasonable justification.

The appellant, RJM, a disabled person who became homeless, challenged the application of para 6 of Schedule 7 to the Income Support (General) Regulations 1987 which limited entitlement for claimants "without accommodation" to the basic personal allowance under regulation 17(1)(a), thereby excluding them from the disability premium payable under paras 11 and 12 of Schedule 2. He relied on Article 14 taken with Article 1 of the First Protocol (A1P1).

The issues before the House were:

• whether the complaint was within the ambit of A1P1 (ie whether disability premium could be a 'possession');
• whether homelessness is a "personal characteristic" or "other status" for Article 14 purposes;
• whether any difference in treatment was objectively and reasonably justified; and
• what follow-on effect decisions of the European Court of Human Rights have on domestic precedent.

The Lords accepted the Grand Chamber's approach in Stec that non-contributory welfare benefits provided by the State can fall within the ambit of A1P1 where the State has created a scheme under domestic law and the claimant's interest is an assertable domestic right. They therefore held that the disability premium was capable of being a "possession" for Convention purposes. The House also held that homelessness can amount to an "other status" under Article 14. On justification, the court accepted the Secretary of State's twofold rationale: (i) that the premium was principally directed at expenses associated with having accommodation and (ii) that giving the premium to rough sleepers risked perpetuating their vulnerable position and that other targeted measures were preferable. Applying the reduced intensity of review appropriate where a non-suspect ground is in issue and giving the State a margin of appreciation in social welfare policy, the House concluded the discrimination was justified and dismissed the appeal. The court also explained that the Court of Appeal may depart from its own prior decisions if they are inconsistent with a subsequent decision of the European Court of Human Rights, while decisions of this House remain for this House to reconsider.

Appeal dismissed. The House held (1) that disability premium is within the ambit of Article 1 of Protocol 1 as interpreted in Stec; (2) that homelessness can constitute an "other status" under Article 14; but (3) that the exclusion of rough sleepers from the disability premium was justified on proper social policy grounds and within the State's margin of appreciation, so there was no violation of Article 14 taken with A1P1.

Appeal from the Court of Appeal (civil division), [2007] EWCA Civ 614; the decision under challenge was the Court of Appeal's judgment allowing departure from earlier domestic authority and upholding the Secretary of State on justification.