DATE: 22 Oct 2008
R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63 is a case with wide implications for social security rights, homelessness and discrimination under the Convention.
There were four main issues:
1) whether social security benefits fall within the ambit Art 1 of Protocol 1 following the Grand Chamber’s decision in Stec v UK;
2) the correct approach to “other status” in Art 14 and in particular whether homelessness is an “other status”;
3) whether disentitling the homeless (those “without accommodation”) from receiving disability premium in income support (under the Income Support (General) Regulations 1987 could be justified by the Secretary of State;
4) the correct approach to section 2 HRA where a court is faced with a recent Strasbourg, and a previous inconsistent (but otherwise binding) domestic decision, following Kay v Lambeth.
Their Lordships (Lord Neuberger of Abbotsbury giving the leading speech) found in the Appellants’ favour on the first two issues, holding that, in the light of Stec, disability premium as part of the “UK’s social welfare system” fell squarely within the ambit of Art 1 Protocol 1 and that homelessness was an “other status” within Art 14.
Their Lordships rejected the Court of Appeal’s narrow, formalistic approach to the question of ‘personal characteristic’ under Art 14. ‘Personal characteristic’ within the Strasbourg jurisprudence “generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him” (per Lord Neuberger at [45]). In this context, a generous meaning was to be given to the phrase “other status”.
On issue 4) their Lordships held that the Court of Appeal had been free to depart from its earlier contrary decision (Campbell v South Northamptonshire DC) in the light of a subsequent inconsistent decision of the ECtHR.
Their Lordships went onto dismiss the appeal, finding in the Secretary of State’s favour issue 3), justification, with Lord Mance expressing some “residual doubt” on this issue (at [15]).
Richard Drabble QC and Zoe Leventhal appeared for RJM, instructed by the Child Poverty Action Group.
Nathalie Lieven QC (with John Howell QC) appeared for the Secretary of State. The Equalities and Human Rights Commission as intervenor made written submissions.
