Issue 49 June 2010 - Current Awareness, Social Security benefits

SOCIAL SECURITY - SM as guardian of JM v Advocate General for Scotland [2010] CSOH 15

The petitioner brought a petition for judicial review of s.73 of the Social Security Contributions and Benefits Act 1992, as being incompatible with pro­visions of the European Convention on Human Rights, in his capacity' as guardian of J who was born on June 2, 2004. J has suffered from severe health problems since he was born. He is significantly dis­abled and requires a high level of care as a result of these disabilities.

An application was made on behalf of J for the care and the mobility component of the Disability Living Allowance ("DLA") payable in terms of the Social Security Contributions and Ben­efits Act 1992.

On May 4, 2005 the respondent made a restricted award in that whereas the care compo­nent was awarded at the highest rate until April 17, 2007, there was no award of a mobility component. That restricted award was appealed to an Appeal Tri­bunal which was refused. The reason why no award of a mobility component was made and why the ap­peal was refused is that, in terms of s.73(l)(a) and (d) of the 1992 Act, the higher rate of the mobility component is for people aged three years and over (five years and over for any period prior to April 9, 2001) and who are so severely disabled that they sat­isfy the higher rate criteria, or aged five years and over where they satisfy the lower rate criteria. Thus, in terms of the statute, the mobility component can­not be awarded to a child under the age of three years. It was argued that the section is incompatible with art.8 and art.l of Protocol 1 as read with art.14 because of a claimed element of discrimination.

Held: Petition dismissed:

(1) Contrary to the po­sition of the respondent, the petitioner had tide and interest to sue. Questions of tide and interest may give rise to difficulty in relation to applications for a declaration of incompatibility in terms of s.4 of the Human Rights Act. They will arise all the more sharply where, as here, the only remedy sought is a declaration. It is the difficulty, in relation to interest, that Lord Fraser, in IRC v National Federation of Self-Employed and Small Businesses Ltd, 1982 A.C. 617 at 646, identified as distinguishing "between the desire of the busybody to interfere in other people's affairs and the interest of the person affected by or having a reasonable concern with the matter to which the application relates";

(2) In the field of human rights, as in public law generally, the courts are not attracted to arguments based on a lack of standing if there is merit in the argument, but, at the same time, the court is not concerned with purely hypothetical or academic questions. As was observed in R (Rusbridger) v Attorney General [2004] 1 A.C. 357, "[i]t is not the function of the courts to keep the statute book up to date. That important responsibility lies with Parliament and the executive."

(3) Under refer­ence to Rusbridger, the starting point is s.7 of the Human Rights Act and the notion of "victim" as that expression is used in art.34 of the Convention. Section 7(4) of the Human Rights Act provides that, in proceedings by way of petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act. A person is a victim of an unlawful act only if he would be a victim for the purposes of art.34 (1998 Act s.7). This provision, when taken with s.2 of the Act, means that in identifying who is a victim for the purposes of determining tide and interest in an application for judicial review in Scotland, the court should follow the approach taken by the European Court of Human Rights in determining who is a victim for the purposes of receipt of an application to that Court.

(4) The decision of the European Court of Human Rights as to admissibility in White v United Kingdom (App. No.53134/99, June 7, 2001) was therefore opposite. In that case, following its previ­ous decision in Cornwell v United Kingdom (App. No.36578/97, May 11,1999), the Court held that the applicant could be held to be a victim (in respect that, as a man, he could not claim widows' benefits) from the time that he made clear his intention to claim the benefits to which, by reason of applicable criteria that were complained of, he was not entitled. Even if it was accepted that an application had not been submitted for J during a relevant part of the time when he was under three years old it was inevitable that it would have been refused in any event. Ac­cordingly there was sufficient interest.

(5) On art. 8 the link has to be direct. The right is to respect and therefore infringement of the right involves a failure to accord respect to, in the case of private life, the principles of personal autonomy and self-determi­nation, and in the case of family life, to relationships as between family members. If a difference in treat­ment is to amount to discrimination as prohibited by art. 14 because it falls within the ambit of art.8 one would expect to find an adverse impact of what­ever is complained of on the relationships which are of the essence of family life or the personal or sexual autonomy which are of the essence of private life. There was no such impact here. J does not have personal autonomy which can be infringed. He is en­tirely dependant on his parents.

(6) The case of Moskal v Poland, (App. No.I0373/05, September 15, 2009), could be distinguished. There, the Fourth Sec­tion of the European Court of Human Rights de­clared as admissible the applicant's complaint against a decision divesting her of an early-retirement or "EWK" pension. The applicant had been awarded the pension which was granted to enable parents to stop working in order to look after their seriously sick children. On the faith of the award, the appli­cant resigned from her job. It was her submission that, by accepting the pension, she was taken as hav­ing waived other social security benefits. That was disputed by the respondent government as a matter of fact but there was no question but that the pen­sion had been paid for a period of time during which it had provided the family's main source of income before being withdrawn. In these circumstances, the Court accepted that divesting the applicant of the EWK pension must constitute an interference with the applicant's rights under art.8, given the adverse impact on the quality and enjoyment of the appli­cant's family life and the way in which it had been organised in reliance on the applicant receiving the pension. The facts in Moskal were very different from those in the present case. Here, what was under challenge is a rule which forms a threshold require­ment for admission to a social security benefit. The complaint is that the applicant is suffering discrimi­nation by not being awarded a benefit in order to augment the family's means. In Moskal what was complained about was the disruption of family life consequent on the withdrawal of a pension on re­ceipt of which the applicant had been encouraged significantly to reorganise her whole financial cir­cumstances.

(7) In relation to the claim under art.l of the First Protocol it was agreed that the rule pro­vided by s.73 of the Social Security Contributions and Benefits Act 1992 imposed a difference in treat­ment by reference to a status (age) which was a rel­evant ground for the purposes of art. 14. It was agreed that the difference in treatment related to a matter (entitlement to a social security benefit) which fell within the ambit of rights and freedoms, namely the right to peaceful enjoyment of ones possessions as guaranteed by art.l of the First Protocol. It was agreed that, therefore, the difference in treatment was capable of amounting to discrimination such as was prohibited by art. 14 and that it should be held to amount to discrimination if not justified by the State - again, there was agreement as to how the Court should approach the question as to whether the State had justified difference in treatment in the present case - age was a "second category" ground and therefore difference in treatment would not amount to art.14 discrimination if it could be justi­fied on a utilitarian or rational basis.

(8) Discrimina­tion is not, of itself, prohibited by the European Convention as thus far ratified by the United King­dom. In M v Secretary of State for Work and Pensions [2006] 2 A.C. 91 at para.11, Lord Nicholls notes that whilst art.l of the unratified Twelfth Protocol pro­hibits discrimination in the enjoyment of any right set forth by law, this general prohibition contrasts with what is found in art.14. The effect of art.14 is narrower. As appears from a literal reading of the text, art. 14 prohibits discrimination but only in rela­tion to a restricted list of matters and on a restricted list of grounds. In addition, the Strasbourg jurispru­dence has both extended (in respect of matters) and limited (in respect of grounds) what might other­wise have been the literal meaning of the article.

(9) As interpreted by the European Court of Human Rights, art.14 discrimination does not mean simply treating persons differently in respect of certain mat­ters on certain grounds—rather, it means treating differently, in respect of certain matters on certain grounds, without an objective and reasonable justi­fication, persons in relevantly similar situations: DH v The Czech Republic (App. No.57325/00), November 13, 2007.

(10) Where a justification is put forward, the Court must regard it as sufficient unless it is man­ifestly without reasonable foundation. Given that the government had instructed and then apparently re­lied on a report from the Disability Living Allowance Advisory Board ("DLAAB"), it could not be said that the legislature had failed to apply its collective mind to relevant factual material in determining how the 1992 Act should be amended. It was not dis­puted that the DLAAB was other than the appro­priate source of advice. Whilst the petitioner's experts gave evidence to the effect that a lower age than three was justifiable because by then the great majority of children will have achieved the very modest level of walking ability which takes a person beyond the criterion of "unable to walk, or virtually unable to walk" and that it is possible to identify, with a high degree of probability, those, such as J, who will never be able to walk because of their disability, those experts did not dispute the accuracy of what appeared in the DLAAB report.

(11) Nor was there any question of disproportionate impact on children under three. In de Freitas v Permanent Secretary of Min­istry of Agriculture, Fisheries, Lands and Housing [1999] 1 A.C. 69 the questions generally to be asked in de­ciding whether a measure was proportionate were: "[W]hether: (i) the legislative objective is suffi­ciently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the fight of freedom are no more than is necessary to accomplish the objective."

(12) The "no more than is necessary" criterion, sug­gestive of a quite intensive review by the Court, was better suited to what was in issue in de Freitas than to the subject matter of this case. In de Freitas what was challenged was a statutory prohibition of all civil ser­vants, irrespective of their grade or function, taking part in any political controversy, in contravention of constitutionally guaranteed rights of freedom of ex­pression and peaceful assembly). Further, para.56 of the judgment in Sahin v Germany [2003] 2 EL.R. 671, relied on by the petitioner, contains the generally ac­cepted definition of art. 14 discrimination and then continues, "the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment". In the following paragraph the Court explains that, according to its case law, "very weighty reasons need to be put forward before a dif­ference in treatment on the ground of birth out of wedlock can be regarded as compatible with the Convention". Some grounds for difference in treat­ment will require very weighty reasons to justify them, others will not. In the present case the differ­ence in treatment was not one which fell into a cat­egory where particularly weighty reasons needed to be given. Further, given the width of the margin af­forded in this area, and that it was reasonable to have based the difference in treatment on the DLAAB re­port, there was no unlawful discrimination.