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

A discriminatory condition governing entitlement to a social welfare benefit falls within article 14 and article 1 of the First Protocol where, but for that condition, the claimant would have an enforceable domestic right to the benefit.

Article 14’s “other status” requirement should receive a generous interpretation. It can encompass an acquired or chosen personal characteristic. Homelessness is such a status.

Discrimination concerning social welfare policy and a non-core status may nevertheless be justified by a legitimate aim and a reasonable relationship of proportionality. The state enjoys a wide margin in this field.

The Court of Appeal may, but need not, depart from its own decision where it is inconsistent with a subsequent European Court of Human Rights decision. It must ordinarily continue to follow a House of Lords decision notwithstanding such an inconsistency.

R (on the application of RJM) v Secretary of State for Work and Pensions concerned a claimant who was incapable of work because of mental-health problems. He initially received income support including a disability premium. When he became homeless and without accommodation, the premium was withdrawn under paragraph 6 of Schedule 7 to the Income Support (General) Regulations 1987, although his basic personal allowance continued.

The Court of Appeal, in [2007] EWCA Civ 614, [2007] 1 WLR 3067, rejected his challenge. It treated homelessness as falling outside “other status” under article 14 and also held the differential treatment justified.

The appeal raised four questions: whether the claim fell within article 1 of the First Protocol; whether homelessness was an “other status” under article 14; whether the differential treatment was justified; and whether the Court of Appeal could depart from its own authority following a subsequent, inconsistent decision of the European Court of Human Rights.

1. Appeal dismissed unanimously. Lord Neuberger delivered the leading speech, with which Lord Hope, Lord Rodger, Lord Walker and Lord Mance agreed. The withdrawal of the disability premium was capable of engaging article 14 but was objectively justified.

2. Ambit of article 1 of the First Protocol. Per Lord Neuberger, the Grand Chamber’s admissibility decision in Stec v United Kingdom (2005) 41 EHRR SE295 supplied the applicable rule. Where a state creates a welfare-benefit scheme, a claimant complaining of a discriminatory condition falls within article 1 of the First Protocol if, but for that condition, the claimant would have an enforceable domestic right to the benefit. A national court should depart from that carefully considered Grand Chamber approach only in the most exceptional circumstances. The disability premium was therefore a sufficient possession for the article 14 claim.

3. Homelessness as “other status”. Per Lord Neuberger, article 14 requires differential treatment based on a personal characteristic, but “other status” should receive a generous and liberal meaning. The inquiry generally concentrates on what a person is, rather than merely what the person is doing or what is being done to that person. A characteristic need not be innate, immutable, involuntary or a formal legal status. Homelessness was an acquired personal characteristic and therefore an “other status”. The Court of Appeal’s contrary reasoning was rejected.

   Lord Walker compared personal characteristics to concentric circles. Innate and immutable characteristics lie at the centre, while acquired characteristics lie further out but may still fall within article 14. The more peripheral or debatable the status, the less likely it is to attract the most intensive scrutiny. Lord Neuberger agreed with that analysis.

4. Justification. Per Lord Neuberger, the exclusion pursued legitimate social-policy aims. The Government was entitled to seek to move disabled rough sleepers towards shelter and targeted assistance, and to regard the disability premium as less closely connected with the needs of those without accommodation. Social-welfare policy necessarily draws broad lines and attracts a wide margin of appreciation, particularly where the distinction is not based on an express or core protected ground. The policy was not so weak or arbitrary as to be unjustifiable. Lord Mance reached the same conclusion with residual doubt, and Lord Neuberger adopted his reasoning.

5. Domestic precedent. Per Lord Neuberger, the Court of Appeal may, but is not obliged to, depart from one of its own decisions when satisfied that it is inconsistent with a subsequent European Court of Human Rights decision. It was therefore entitled to depart from Campbell v South Northamptonshire District Council [2004] EWCA Civ 409. By contrast, absent wholly exceptional circumstances, the Court of Appeal must follow an otherwise binding House of Lords decision and leave its modification or reversal to the House.

1. House of Lords: In R (on the application of RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, the House unanimously dismissed the appeal. It held that homelessness was an “other status” but upheld the result below because the differential treatment was justified.
2. Court of Appeal: In R (on the application of RJM) v Secretary of State for Work and Pensions [2007] EWCA Civ 614, [2007] 1 WLR 3067, the court rejected the challenge. It regarded homelessness as outside “other status” and also held the policy justified. The House affirmed the result while rejecting the former conclusion.