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

The Supreme Court considered challenges to the Department for Work and Pensions' Customer Information System retention policy and Special Customer Records (SCR) procedure as applied to transgender benefit claimants. Key legal questions were whether those policies were inconsistent with the Gender Recognition Act 2004 (notably sections 9 and 22), whether they interfered with rights under the European Convention on Human Rights (articles 8 and 14, and article 3 raised in this court), and whether they amounted to unlawful direct or indirect discrimination under the Equality Act 2010 (sections 13 and 19) or harassment (section 26).

The Court held that: (a) the Gender Recognition Act 2004 does not require prior history to be expunged and the Retention and SCR policies are not inconsistent with sections 9 or 22; (b) both policies interfere with article 8 rights but that interference is justified as proportionate to legitimate aims, including accurate state pension calculation and fraud prevention; (c) direct discrimination claims failed because transgender customers are treated differently where protection is requested and are not treated less favourably than other groups; and (d) any indirect discrimination was justified as a proportionate means of achieving legitimate aims. A late, lightly pleaded harassment argument under section 26 was rejected as unsuitable for resolution on judicial review. The appeal was dismissed.

The appellant is a trans woman who had obtained a full Gender Recognition Certificate and who claimed that DWP practices for recording and protecting gender history on its central Customer Information System (CIS) and related benefit systems caused unjustified intrusion into privacy and discriminatory treatment when she claimed Jobseeker's Allowance. She sought judicial review of the DWP Retention policy (the duration and visibility of gender history on CIS) and the Special Customer Records policy (SCR) which restricts access to protected records but, in practice, marks customers as needing special handling.

Procedural history: proceedings were launched in 2012 and were heard in the High Court by Simon J in 2014 ([2014] EWHC 2403 (Admin)), which found legal defects in the Retention/Noting arrangements but considered the interferences proportionate. The Court of Appeal dismissed the appellant's appeal ([2016] EWCA Civ 47). Before the Supreme Court the appellant renewed challenges under the Gender Recognition Act 2004 (s 9 and s 22), under the Human Rights Act 1998 invoking articles 8, 14 and, for the first time in this court, article 3, and under the Equality Act 2010 (sections 13, 19 and a late section 26 harassment argument).

Issues framed by the Supreme Court included: (i) whether the DWP policies were inconsistent with the Gender Recognition Act 2004; (ii) whether the policies interfered with article 8 (and article 3) rights and, if so, whether that interference was justified under article 8(2); and (iii) whether the policies amounted to direct or indirect discrimination or harassment under the Equality Act 2010.

Reasoning: the Court concluded that Parliament did not intend section 9 to rewrite or erase prior history from records and that section 22 provides criminal protection against official disclosure while recognising exceptions for social security purposes. The Court accepted that both the Retention and SCR policies interfered with article 8 privacy rights because they exposed or effectively highlighted gender history, but found the DWP's legitimate aims (accurate pension calculation for some claimants, fraud detection and administrative integrity) were rationally connected to retention and access controls. The proportionality assessment weighed the degree of intrusion against the operational needs of a large, long‑standing benefits computer system and the practical difficulties and costs of alternative technical solutions. The Court gave substantial weight to the judgment of the administering department about system design and administration and concluded that the interferences were proportionate and justified. Direct discrimination claims were rejected because transgender customers are offered the optional SCR protection and are not treated less favourably than other customers who change names or titles; any indirect disadvantage was, however, justified as proportionate. The harassment complaint was not properly pleaded or amenable to resolution on judicial review.

The Court therefore dismissed the appeal and upheld the conclusions of the courts below.

This was an appeal which the Supreme Court dismissed. The Court held that the DWP Retention and Special Customer Records policies were not inconsistent with the Gender Recognition Act 2004, that both policies engaged article 8 rights but that the interferences were justified as proportionate to legitimate aims (accurate pension calculation and fraud prevention and operational administration), and that claims of direct discrimination failed while any indirect discrimination was justified. A late harassment claim under section 26 of the Equality Act 2010 was not appropriate for disposition on judicial review.

Judicial review proceedings began in April 2012. High Court (Administrative Court) judgment: Simon J, [2014] EWHC 2403 (Admin). Appeal to the Court of Appeal dismissed: Elias LJ (with Patten and Black LJJ) [2016] EWCA Civ 47, [2016] PTSR 1344. Appeal to the Supreme Court: [2017] UKSC 72, appeal dismissed.