Clulow, R (on the application of) v Independent Review Service & Anor

Article 14 does not prohibit every difference in treatment. “Other status” generally requires a characteristic personal to the individual, directed to what the person is rather than merely what the person has done or what has happened to them. A difference created by the very treatment challenged is not, without more, an Article 14 status.

Where social security discrimination is established, the relevant test is whether it is manifestly without reasonable foundation, in the sense of being irrational. A scheme may rationally use receipt of a means-tested benefit as a gateway to discretionary payments, because this provides an administratively efficient indication of limited means. Courts should not redesign such welfare schemes merely because an alternative method might reduce hardship.

The claimant received contribution-based employment and support allowance because of her national insurance record. She sought a discretionary community care grant to furnish a council property after a period without settled accommodation.

Under Direction 25 of the Social Fund Directions, access to consideration for a grant depended on receipt of a qualifying means-tested benefit, including income-related employment and support allowance. The claimant was receiving contribution-based allowance and had not undergone means-testing. Her application was refused and the refusal was upheld on review.

She sought judicial review, alleging discrimination on the grounds of “property” and alternatively “other status” under Article 14 of the ECHR. The Secretary of State conceded that Article 8 was engaged. The central issues were whether the claimant had suffered relevant discrimination and, if so, whether the scheme was justified.

1. The claim was dismissed. The claimant’s receipt of contribution-based employment and support allowance was a proprietary right because it arose as of right, but the refusal of access to a discretionary community care grant did not interfere with that right. Eligibility for consideration depended on receipt of a qualifying benefit, not on the claimant’s enjoyment of her existing benefit. There was therefore no discrimination on grounds of property.
2. “Other status” under Article 14 requires a characteristic personal to the individual. The court adopted the approach in R (RJM) v Work and Pensions Secretary [2008] UKHL 63 and R (Clift) v Secretary of State for the Home Department [2006] UKHL 54. A claimant’s work record and national insurance contributions described what she had done and the resulting statutory position. They did not constitute a sufficiently personal characteristic. The difference was not an Article 14 difference based on “other status”.
3. The court also relied on R (S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39 in holding that Article 14 does not prohibit discrimination on every conceivable ground.
4. Alternatively, any discrimination would have been justified. Applying the test in Humphreys v Commissioners for Her Majesty’s Revenue and Customs [2010] EWCA Civ 56, the scheme was not manifestly without reasonable foundation. Receipt of a means-tested benefit provided an administratively efficient indication of limited income and capital, avoided repeated complex means-testing, and preserved scarce resources for grants. A shortened alternative assessment would itself require importing much of the detailed means-testing machinery.
5. The court considered that redesigning this aspect of social welfare policy was a matter for Parliament, not judicial review.