Vincent & Ors, R (On the Application Of) v Secretary of State for Work And Pensions

The claimants challenged Regulation 16 of the Loans for Mortgage Interest Regulations 2017 (the "LMI Regulations") and in particular the obligation that outstanding LMI becomes immediately due and repayable on sale of the relevant property (the "repayment on sale requirement" or "RSR"), on grounds of unlawful discrimination under Article 14 ECHR read with Article 1 of Protocol 1 and/or Article 8, and under the Equality Act 2010 and the public sector equality duty.

The court held that the RSR fell within the ambit of A1P1 and Article 8 but that the relevant claims of indirect and Thlimmenos discrimination failed. The judge found that the proposed alternative status of "enhanced risk claimants" was too nebulous to be a status for Article 14 purposes and that the Vincent cohort (severely disabled people with partners in receipt of Carer’s Allowance and their dependent children) were not in a significantly different position from other long-term recipients of LMI. Applying the Supreme Court’s test that a welfare measure challenged for discriminatory effect is unlawful only if it is "manifestly without reasonable foundation", the court concluded that the RSR and the decision not to provide portability or carve-outs were not manifestly without reasonable foundation: the measure pursued legitimate aims (recouping taxpayer funds and ensuring scheme sustainability), was rationally connected to those aims, and the Secretary of State had given due consideration to equality concerns (including conducting impact assessments and considering portability).

The public sector equality duty challenge was also rejected: the court was satisfied that the Secretary of State had given active, conscious consideration to the likely effects on disabled people and had investigated portability before rejecting it as impractical and capable of producing disproportionate administrative burdens.

This was a first instance judicial review of aspects of the Loans for Mortgage Interest Regulations 2017 brought by two sets of claimants (the Vincent claim and the JD claim). The Vincent claim concerned two severely disabled adult recipients of Disability Living Allowance cared for by partners who gave up work and receive Carer’s Allowance, together with a dependent child; they challenged the change from a non-repayable support for mortgage interest (SMI) to a repayable loan (LMI) and sought exemption from repayment (or exemption from the RSR). The JD claim concerned a young man with multiple disabilities who lacks capacity (brought by his litigation friend) and challenged the automatic RSR and the absence of a mechanism to "port" the loan to a replacement dwelling where a move was necessary to meet disability-related needs.

The claimants sought declaratory relief that Regulation 16 was discriminatory under Article 14 taken with A1P1 and/or Article 8, and in JD’s case also relied on the Equality Act 2010 and the public sector equality duty (PSED).

The court framed the issues as (i) whether the facts fell within the ambit of a Convention right (A1P1/Article 8), (ii) whether there was differential treatment of persons in a relevantly similar situation, (iii) whether the difference in treatment was on a ground or status protected by Article 14, and (iv) whether the difference was objectively and reasonably justified. For Thlimmenos-style claims the question is whether claimants by reason of their status are in a significantly different situation from the comparator class and whether the failure to treat them differently is manifestly without reasonable foundation.

The court accepted that LMI and the RSR fall within the ambit of A1P1 and Article 8. It rejected the contention that "enhanced risk claimants" constituted an Article 14 status because the concept was too vague and not objectively ascertainable. The Vincent cohort were not treated as significantly different from other long-term LMI recipients (many of whom are disabled or unable to work) and there was no satisfactory basis to single them out for a non-repayment carve-out. The court accepted the Secretary of State’s extensive evidential account of policy development including consultations, impact assessments and specific consideration of portability. The RSR was rationally connected to legitimate aims (preventing taxpayer subsidisation of capital gains, sustainable financing of the scheme and recouping outlay at the point when equity is realised), and portability was rejected on grounds of administrative difficulty, risk of challenge and state sustainability considerations. The PSED challenge failed because the Secretary of State had given conscious, informed consideration to equality impacts and had investigated ameliorative measures.

The judge noted that the Government had subsequently announced a policy intention to allow porting in future (subject to legislation) but observed that the announced change did not render the claims academic or amount to an admission of unlawfulness. The claims for judicial review were dismissed.

Claim dismissed. The court held that although LMI and the repayment-on-sale requirement fall within the ambit of A1P1 and Article 8, the Article 14 complaints (both indirect and Thlimmenos) failed because either the asserted status could not be objectively identified ("enhanced risk claimants"), or the Vincent cohort were not in a significantly different position to other long-term LMI recipients. Applying the Supreme Court’s "manifestly without reasonable foundation" standard for justification, the RSR and the decision not to allow portability were not manifestly without reasonable foundation: they pursued legitimate aims (recoupment, sustainability and fairness to taxpayers), were rationally connected to those aims and were reasonable choices in light of administrative and fiscal considerations. The PSED challenge likewise failed as the Secretary of State had given due and conscious regard to equality impacts.