Stewart v Secretary of State for Work and Pensions

For Article 14 purposes, direct discrimination requires the benefit refusal to be because of the protected status. Imprisonment does not itself establish direct discrimination where prisoner status does not exclude every route to the benefit.

A benefit scheme may nevertheless discriminate indirectly where prisoners find it more difficult to satisfy a qualifying-benefit gateway. In social-welfare cases, such discrimination may be justified by rational administrative considerations, including the cost and complexity of replacing a bright-line rule, particularly where the change would have wider consequences and alternative public provision exists.

Faith Stewart was imprisoned when her son died. She applied for a Social Fund funeral payment on 4 August 2003, but the application was refused because she was not receiving a qualifying benefit.

An Appeal Tribunal allowed her appeal but gave inadequate reasons. The Social Security Commissioner set that decision aside and directed a rehearing. Judge Williams, sitting in the Upper Tribunal Administrative Appeal Chamber, ultimately upheld the refusal in a decision dated 27 January 2010, reported at [2010] UKUT 18 (AAC).

Before the Court of Appeal, the issues were whether the refusal constituted direct or indirect discrimination on grounds of prisoner status under Article 14, and, if so, whether the discrimination was justified. It was accepted that the payment fell within the ambit of Article 8 and Article 1 of the First Protocol, and that prisoner status could constitute an other status.

Appeal dismissed unanimously. Sir Henry Brooke gave the principal judgment. Dame Janet Smith and Lord Justice Rix agreed.

1. Direct discrimination. The relevant question was whether Ms Stewart was refused a funeral payment because she was a prisoner. The disputed benefit was the funeral payment, not income support. Although the Income Support (General) Regulations 1987 expressly excluded prisoners from income support, prisoner status alone did not exclude access to every qualifying benefit or route to a funeral payment. Applying the reason-why and but-for approaches by analogy, the refusal was not direct discrimination: prisoner status was not the reason why the funeral payment was refused. The court referred to Shamoon, James and Stec.
2. Indirect discrimination. The Secretary of State accepted, and the court held, that the scheme was indirectly discriminatory because a prisoner found it more difficult than a non-prisoner to obtain a qualifying benefit. The absence of an express exclusion from every qualifying benefit did not prevent that conclusion.
3. Justification. Prisoner status was an other status, but a non-suspect ground. It therefore required only some rational justification, not the intense scrutiny applicable to core grounds such as race or sex. The legislature and executive were entitled to a wide margin of appreciation in social-policy and state-benefit matters, especially where the discrimination was indirect. Bright-line eligibility rules were legitimate in this context.
4. Application. Administrative convenience and cost could justify discriminatory effects, but the Secretary of State still had to show serious adverse consequences. A separate means test for prisoners could not realistically be confined to that group. It would have implications for students, migrants and recipients of contributory benefits, and would require a substantially different, slower and more expensive scheme. The availability of local-authority funeral provision was also relevant. The Secretary of State had therefore established rational justification for the discriminatory treatment, and the appeal was dismissed.

• Court of Appeal (Civil Division). Dismissed Ms Stewart's appeal from the Upper Tribunal decision reported at [2010] UKUT 18 (AAC).
• Upper Tribunal Administrative Appeal Chamber. Judge Williams upheld the Secretary of State's refusal of a funeral payment on 27 January 2010 and granted permission to appeal on 8 June 2010.
• Social Security Commissioners. Set aside the Appeal Tribunal's decision because it lacked a full statement of reasons and directed a rehearing.
• Appeal Tribunal. Allowed Ms Stewart's appeal on 4 April 2005, but provided inadequate reasons.