R (C) v Secretary of State for Work and Pensions

The court held that Article 8 of the European Convention on Human Rights was engaged by the retention and use of historical gender information on the Department for Work and Pensions (DWP) Customer Information System (CIS), but that the retention policy and the Special Customer Records (SCR) arrangements were justified as proportionate interferences given the legitimate aims relied upon by the Secretary of State: calculation of state pensions and fraud prevention. The court accepted that certain DWP policies (the Retention Policy and the GRC Noting Policy) had previously lacked sufficient publicity and thus raised legality concerns, but those findings were not challenged on appeal. The appeal therefore focussed on proportionality under Article 8, and on indirect discrimination under the Equality Act 2010 and Article 14. Applying the Bank Mellat proportionality framework, the court gave weight to the DWP's evidence about the need for historic gender data for pension calculations and fraud detection, to the cost and operational consequences of masking or excising the data, and to the protective features of the SCR (restricted authorised access, time-limited authorisations, audit trails). The court dismissed the appellant's complaints that the SCR produced disproportionate delay or that it drew undue attention to transgender customers, and it rejected the indirect discrimination and Gender Recognition Act section 9 arguments.

Background and parties: The appellant, a transgender woman who holds a Gender Recognition Certificate, sought judicial review of DWP policies concerning retention and access to historical gender information on the Customer Information System (CIS) and the operation of the Special Customer Records (SCR) arrangements when claiming Jobseeker's Allowance. The respondent was the Secretary of State for Work and Pensions. The claim followed an earlier judgment of Simon J in the Administrative Court (CO/4300/2012) and was heard in the Court of Appeal on 1-2 December 2015.

Nature of the application and relief sought:

• The applicant sought declaratory relief and remedies under human rights and discrimination law contending that the DWP's retention, noting and access policies unlawfully interfered with private life under Article 8 ECHR, and that the SCR arrangements amounted to indirect discrimination on grounds of gender reassignment under the Equality Act 2010 and Article 14. A related direct discrimination claim was rejected below and was not renewed on appeal.

Issues framed by the court:

• Whether the retention of historical gender data and its availability to some officials interfered with Article 8 rights and, if so, whether that interference was "in accordance with the law" and proportionate.
• Whether the SCR policy and its practical operation were a disproportionate interference with Article 8 privacy rights of transgender claimants when seeking Jobseeker's Allowance.
• Whether the policies amounted to unlawful discrimination (Article 14 and/or indirect discrimination under sections 19 and 29 of the Equality Act 2010).
• Whether section 9 of the Gender Recognition Act 2004 required that past gender history be ignored in the administration of benefits.

Court's reasoning and conclusions:

• The court accepted that Article 8 was engaged by the retention and use of gender history data. It accepted that legitimate aims existed (pension calculation for certain cohorts and fraud detection) and that the policies were rationally connected to those aims.
• Applying the Bank Mellat proportionality steps, the court concluded that (i) the private information was sensitive but often already publicly or readily inferable; (ii) the DWP's operational view that front-line access assisted fraud detection and pension administration was entitled to weight; (iii) the cost and practical consequences of excising or masking the data were material considerations; and (iv) balancing impacts, the interference was not disproportionate. The judge below (Simon J) had been entitled to reach that conclusion and the Court of Appeal did not substitute a fresh balance.
• The court accepted that the SCR policy produced some delay and in some circumstances might draw attention to protected status, but held that those administrative consequences did not render the interference disproportionate given the protective features of the SCR (authorisation, time-limited access, audit trail, training and monitoring) and the voluntary option to opt out of SCR. Complaints about operational delay were matters for administrative redress rather than Article 8 relief.
• On discrimination, the court held that any disproportionate impact of the SCR on transgender customers had not been shown to be established at a population level, and in any event could be justified for the same reasons that satisfied Article 8 proportionality. The Article 14 argument added nothing beyond the Article 8 analysis. The Gender Recognition Act 2004 did not require erasure of past gender history where it was relevant to pension or fraud prevention purposes.

Wider context: The court noted the rarity of successfully displacing detailed administrative judgments about operational requirements and costs and accepted the DWP's margin of appreciation in balancing privacy interests and operational necessities.

The appeal was dismissed. The Court of Appeal held that although Article 8 was engaged by retention and access to historical gender data, the retention policy and the Special Customer Records arrangements were proportionate interferences justified by legitimate aims (state pension calculation and fraud detection). The court also held that indirect discrimination and Article 14 claims failed and that section 9 of the Gender Recognition Act 2004 did not require erasure of relevant historical information. The Administrative Court's proportionality conclusions were not displaced.

Appeal from the High Court (Administrative Court) before Simon J (CO/4300/2012). Simon J had made declarations that the Retention Policy and the GRC Noting Policy breached Article 8's legality requirement, but had rejected proportionality and discrimination challenges in substance. The Secretary of State did not challenge the legality findings; the appellant appealed the judge's proportionality and indirect discrimination conclusions. The Court of Appeal heard the appeal on 1-2 December 2015 and delivered judgment on 9 February 2016 ([2016] EWCA Civ 47).