CIS/2274/2009

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision and Hearing

1. This appeal by the claimant does not succeed. I confirm the decision of the First-tier Tribunal (Social Entitlement Chamber) sitting at Birmingham on 11th May 2009 and made under reference 024/09/02834. This is that the claimant was not entitled to income support as a lone parent from 15th April 2009.
 
2. I held an oral hearing of this appeal on 5th January 2011. The claimant did not attend in person but was represented by Alasdair Henderson of counsel from the Free Representation Unit. The Secretary of State was represented by Paul Greatorex of counsel instructed by the Solicitor to the Department for Work and Pensions. I am grateful to them for their assistance. 

3. On the day following the hearing I requested further written submissions on matters on which Mr Greatorex had preferred to delay his argument until it became clear that it was necessary to rule on those matters. Final submissions were not received until 11th April 2011 and the file was not referred to me for decision until 11th May 2011.

Background and Procedure

4. The claimant is a woman who was born on 15th July 1953. She has 13 children and has educated five of them at home. No argument has been raised about her competence to do so. For the last eight years or so she has lived alone with her younger children after separating from her husband. The issue in this appeal relates to her two youngest children, who are the only ones who are still dependent, and are twin daughters born on 22nd November 1994. They did start attending a local primary school but (in the claimant’s view) that did not work out and she withdrew them from school and started teaching them exclusively at home in about June 2004. They were intending to enrol in college when they reached 16. 

5. Initially, after separating from her husband, the claimant shared care and education of the girls with him and was able to be available for work and to claim JSA. Early in 2005 the girls started living with the claimant on a full time basis and she became fully responsible for their care and education. She claimed and was awarded income support as a lone parent from 20th April 2005. However, there was a change in the rules relating to lone parents (which I explain further below) and on 10th February 2009 (presumably by was of a supersession decision) the Secretary of State decided that the claimant would no longer entitled to income support as from 15th April 2009 (although she would be able to claim Jobseekers Allowance (“JSA”)  if she could satisfy the conditions of entitlement for that allowance). At that point the girls were aged 14 years and 5 months.

6. On 6th or 10th March 2009 the claimant appealed to the First-tier Tribunal against that decision of the Secretary of State on the grounds that the decision infringed her rights under section 7 of the Education Act 1996. In her appeal letter she stated: “My children receive their education during normal school hours … This enables them to study during the hours of daylight and to visit the park, libraries, museums, galleries, shops and so forth”. She would not be available for or able to actively seek work for the purposes of claiming JSA. She wrote: “A requirement to take up employment would conflict with my duties as a home educating-parent”. At that stage the claimant was unrepresented.

7. In fact the claimant was subsequently able to claim JSA from June 2009 to September 2009 because of special rules relating to lone parents during school holidays. She has also stated that in her area there were no OFSTED approved childcare providers for children of the relevant age and that, if she had found work, she would not have been able to claim tax credit childcare costs.

8. The First-tier Tribunal considered the matter on 11th May 2009 and upheld the decision of the Secretary of State. It found that there was no conflict between the income support rules and the 1996 Act because JSA advisers were required to accommodate the circumstances of a home educating claimant when considering the contents of the jobseekers agreement. The tribunal stated that the claimant “is, therefore, required to claim [JSA] or Employment Support Allowance on health grounds, if appropriate” (paragraph 4.2 of the statement of reasons). Of course, as a matter of law, that is incorrect. Nobody is required to claim either allowance; they are available to those who satisfy the conditions of entitlement. The tribunal made no explicit reference to the Human Rights Act 1998 or associated material.

9. On 10th July 2009 the claimant applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal, adding an argument that the First-tier Tribunal had failed to consider the provisions of article 8 of the European Convention on Human Rights. On 28th July 2009 a judge of the First-tier Tribunal refused to give the claimant permission to appeal to the Upper Tribunal, stating that “no material question of law arises”. The judge may well have been entitled to refuse permission on the basis that in his opinion there had been no error of law, but it was certainly not the case that “no material question of law arises”. The claimant renewed her application directly to the Upper Tribunal and on 2nd October 2009 I gave permission to appeal in the following terms: “This matter does raise genuine issues of law, including the question of whether the regulations are compatible with the Human Rights Act 1998. The fact that I have given permission for that reason is not intended to limit the matters that can be argued on appeal, nor is it meant to indicate that I have formed any opinion on the answer”.

10. There was a delay of nearly a year while arrangements were made for the claimant to be represented by the Free Representation Unit and submissions were prepared and it was not until 30th September 2010 that I was able to direct an oral hearing of the appeal. There were further delays before the appeal could be listed and while post-hearing submissions were prepared. It is unfortunate that it is now well over two years since the relevant decision of the Secretary of State.

11. Mr Henderson now relies on two broad grounds of appeal, having decided not to pursue other matters previously raised. The first is that the relevant purported changes in 2008 to the income support regulations were invalid because they contravened the provisions of the 2006 Act (the ultra vires argument). The second is that there was a breach of the provisions of the Human Rights Act 1998 by virtue of discrimination against the claimant on grounds of sex. The Secretary of State opposes the appeal and supports the decision of the First-tier Tribunal.

The Domestic Legal Provisions

12. Section 7 of the Education Act 1996 provides as follows:

7. The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable – 
	(a) to his age ability and aptitude, and
	(b) to any special educational needs he may have
either by regular attendance at school or otherwise.

13. Section 124 of the Social Security Contributions and Benefits Act 1992 provides entitlement to income support (subject to other conditions of entitlement which are not at issue in this appeal) for a person who falls within a prescribed category. Prescribed categories are set out in Schedule 1B to the Income Support (General) Regulations 1987. Until 23rd November 2008 paragraph 1 of the Schedule prescribed:

1. A person who is a lone parent and responsible for a child who is a member of his household.

14. Generally speaking a “child” was defined for those purposes as being under the age of 16. Government policy on this issue changed and with effect from 24th November 2008 paragraph 2 of the Social |Security (Lone Parents and Miscellaneous Amendments) Regulations 2008 amended paragraph 1 of Schedule 1B to read as follows:

	1. A person who is a lone parent and responsible for - 
		(a) a single child aged under 12, or
		(b) more than one child where the youngest is aged under 12,
	who is a member of that person’s household.

15. Regulation 3 of those amending regulations reduced the age from 12 to 10 with effect from 26th October 2009 and regulation 4 reduced the age even further, to 7, with effect from 25th October 2010. There were also certain transitional arrangements. The new rule was not applied to the claimant until 15th April 2009. Mr Henderson has not suggested that, if the regulations are valid, they were applied to the claimant from an incorrect date. 

The Ultra Vires Argument

16. Mr Henderson argued that: subordinate legislation can be unlawful if it contravenes any statute, and not only if it falls outside the authority of the empowering statute; the effect of the regulations must be examined as well as the wording; the 1996 Act creates a right to chose whether to send a child to school or to educate her at home; the effect of the change to the income support provisions is that a lone parent with no income cannot exercise the right to chose to educate her child at home because she will have to obtain employment or be available for and actively seeking employment in order to claim JSA. 

17. He argued that these are not unreasonable or arcane points and referred to the Report of 13th August 2008 of the Social Security Advisory Committee made in advance of the implementation of the 2008 amendments (and reproduced on pages 123 to 143 of the Upper Tribunal file). The Committee had specifically considered the impact of the changes on parents who educate their children at home. Responses to its consultation had suggested that in the absence of a “comprehensive, reliable, affordable and trusted network of quality childcare many lone parents will feel unable to work outside the normal school hours” (paragraph 4.4) and that lone parents in receipt of benefits would be denied the right to chose the most appropriate form of education to meet an individual child’s needs (paragraph 4.28). The Committee itself felt unable to assess the nature and extent of such an impact because of a lack of government-held information on home educators generally. It concluded that there was no case for exempting all lone parents who home educate but that individual cases would require “close examination and sensitive handling” (paragraph 5.8), that the proposed regulations not be proceeded with in any event (paragraph 7.1 – obviously a conclusion that the government and parliament did not accept) but that if they were proceeded with, implementation in respect of children under the age of 12 be postponed until after an evaluation of the impact on older children and verification that comprehensive childcare provision was in place (paragraph 7.2). I observe at this point that at the relevant date the claimant’s children were not under the age of 12.

18. Mr Greatorex argued that subordinate legislation can only be ultra vires if it falls outside the authority of the empowering statute (and it was not argued that this was the case here), that Mr Henderson was inappropriately asking the Upper Tribunal to adjudicate between the views of the Social Security Advisory Committee and those of the Secretary of State on a matter of policy on which parliament had approved regulations, that in any event the Education Act 1996 did not create a right to educate at home, but just a way of fulfilling a duty, and neither that Act nor any other legislation creates an obligation on the Secretary of State to provide sufficient funds to implement or enforce any such right. 

19. In his skeleton argument of 4th January 2011 Mr Greatorex suggested that the Upper Tribunal does not have any power to quash regulations. In oral argument he retreated from that position. His real point here was that the Upper Tribunal cannot make a declaration of incompatibility under the Human Rights Act 1998 (section 4(5) of the Act). That is clearly correct and was accepted by Mr Henderson.

The Ultra Vires Conclusions

20. In the decision in the House of Lords in Chief Adjudication Officer v Foster [1993] AC 754 Lord Bridge (with whom all of their other Lordships agreed) said (at 766 to 767):

My conclusion is that the [social security] commissioners have undoubted jurisdiction to determine any challenge to the vires of a provision in regulations made by the Secretary of State as being beyond the scope of the enabling power whenever it is necessary to do so in determining whether a decision under appeal was erroneous in point of law. I am pleased to reach that conclusion for two reasons First, it avoids a cumbrous duplicity of proceedings which could only add to the already overburdened list of applications for judicial review awaiting determination by the Divisional Court. Second, it is, in my view, highly desirable that when the Court of Appeal, or indeed your Lordships House, are called upon to determine an issue of the kind in question they should have the benefit of the views upon it of one or more of the commissioners who have great expertise in this somewhat esoteric area of the law”.

21. Following the implementation of the relevant sections of the Tribunals, Courts and Enforcement Act 2007 the jurisdiction of the Social Security Commissioners is now exercised by the Upper Tribunal (which is a superior court of record – section 3(5)), almost all of the salaried judges of the Administrative Appeal Chamber of the that Chamber were previously salaried Social Security Commissioners, and that Chamber exercises the judicial review functions previously exercised by the Divisional Court or the Administrative Court in relation to most social security and social entitlement matters (under the authority of sections 15 to 19 of the 2007 Act and the Lord Chief Justice’s Practice Direction of 29th October 2008). There can be no doubt that the Upper Tribunal does have the power to determine vires in this kind of case.

22. Mr Geatorex sought to limit the scope of Foster to questions as to whether regulations made by the Secretary of State are beyond the scope of the enabling power, arguing that it had not dealt with the issue of regulations that might be said to conflict with other statutory provisions.

23. I refer to the Court of Appeal decision in R v Secretary of State ex parte JCWI and R v Secretary of State ex parte B [1997] 1 WLR 275. The Asylum and Immigration Act 1993 set out various rights of those seeking asylum in the United Kingdom, including protection from removal during the period from when the claim for asylum was made until the end of the appeal process. Regulations made by the Secretary of State for Social Security removed all financial support from most of those who sought asylum otherwise than immediately on arrival in the United Kingdom and from those whose claims for asylum had been rejected by the Home Secretary and were awaiting the outcome of an appeal. The Court of Appeal held that the regulations were ultra vires and invalid. Lord Justice Simon Brown (with whom Lord Justice Waite agreed) said: 

“Specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act. So much is clear … the Act of 1993 confers on asylum seekers fuller rights than they had ever previously enjoyed, the right of appeal in particular. And yet these Regulations for some genuine asylum seekers at least must now be regarded as rendering these rights nugatory. Either that, or the Regulations necessarily contemplate for some a life so destitute that that to my mind no civilised nation can tolerate it. … I would hold it unlawful to alter the benefit regime so drastically as must inevitable not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status. … I for my part regard the Regulations now in force as so uncompromisingly draconian in effect that they must indeed be held ultra vires … rights necessarily implicit in the Act of 1993 are now inevitably being overborne. Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution. Primary legislation alone could in my judgment achieve that sorry state of affairs”.

24. Lord Justice Waite added:

“The principle is undisputed. Subsidiary legislation must not only be within the vires of the enabling statute but must also be so drawn as not to conflict with statutory rights already enacted by other primary legislation.”

25. In R (Kimani) v Lambeth London Borough Council [2003] EWCA Civ 1150, [2004] 1 WLR 272 a differently constituted Court of Appeal pointed out that there was a distinction between asylum seekers and those who wished to immigrate but were not asylum seekers and could safely return to their country of origin. 

26. Mr Greatorex suggested that lone parents of limited means who wished to home educate could find ways of achieving this other than through reliance on income support, for example through an appropriately worded jobseekers agreement and a reasonable approach to the use of other childcare providers, and that the principle in the JCWI case would only come into play if, for example, the regulations had purported to forbid home education or placed such restrictions as to make it effectively impossible, and that was not the case here.

27. I conclude that the Upper Tribunal has the power not only to find subordinate legislation to be invalid if it is ultra vires the enabling legislation (Foster) but also if it conflicts with statutory rights already enacted by other primary legislation (JCWI and for the reasons given above relating to the effects of the 2007 Act) but only in cases where there is no other reasonable way to exercise such rights (because if there is such a way, there is no real conflict).

28. However, section 7 of the Education Act 1996 does not create a specific right to home educate. It creates a duty (to secure education) and creates two ways of fulfilling this duty. One is ensure regular attendance at school (which in effect is taken with no further ado as evidence of complying with the duty) and the second is “otherwise”. This concept of “otherwise” could include all sorts of schemes other than home education. I cannot read into that the kind of statutory right that was created by the Asylum and Immigration Act 1993 and I cannot read the changes in the income support rules as conflicting with such a right. The claimant’s ultra vires argument fails.

Human Rights Law

29. Mr Henderson’s other ground is that the implementation of the new income support regulations amounted to indirect sex discrimination against the claimant contrary to the Human Rights Act 1998 and the article 1 protocol 1 read with article 14 of the European Convention on Human Rights (“the Convention”), in that there is a difference in treatment on grounds of sex which cannot be justified and is not proportionate.

30. The main relevant provisions of the Human Rights Act 1998 are as follows (references are to section numbers):

3(1) So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights. 

6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

6(2) Subsection (1) does not apply to an act [of a public authority] if-
(a)	as a result of one or more provisions of primary legislation the authority could not have acted differently; or
(b)	in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights the authority was acting so as to give effect to or enforce those provisions. 

6(3) In this section "public authority" includes –
(a)	a court or tribunal

7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-
	(a) …
(b)	rely on the Convention right or rights concerned in any legal proceedings

The Relevant Convention Provisions

31. For the purposes of the present appeal, the main relevant provisions of the Convention are as follows.

Article 14:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status

Article 1 of Protocol 1:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Article 14 and the Convention Rights

32. Article 14 is not a free-standing anti-discrimination provision. It only comes into play to secure “enjoyment of the rights and freedoms set forth in this Convention”. However, a breach of Article 14 does not only arise where there has been a breach of another article. Article 14 also applies to secure, without discrimination, the way in which the various rights are secured, and all that has to be shown is that there has been unlawful discrimination in connection with a right which comes within the ambit of one of the relevant articles (see eg Petrovic –v- Austria Case No 56/1996/775/976). 

33. It is not every difference in treatment that constitutes discrimination within the meaning of Article 14. If a person is treated differently from another because of status, there is discrimination for the purposes of Article 14 if the difference in treatment does not pursue a legitimate aim or is disproportionate to the aim pursued. In Belgian Linguistics (No 2) (1979-80) 1 EHRR 252 at 284 the European Court of Human Rights said:
“ … Article 14 does not forbid every difference of treatment in the exercise of the rights and freedoms recognised …
… [T]he principle of equality of treatment is violated if the distinction has no objective and reasonable justification.  The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles that normally prevail in democratic societies.  A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aims sought to be realised”.
34. In Stec v United Kingdom (2006) 43 EHRR 47 the European Court of Human Rights said:

“51. Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a beach of the article … A difference in treatment is, however, discriminatory, if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aims sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.

52. The scope of this margin will vary according to the circumstances, the subject matter and the background … As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention … On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy …”

35. The Court recently summarised the position in Glor v Switzerland (30th April 2009 application 13444/04 at paragraph 71):

71. According to the case-law of the Court a difference is discriminatory under the meaning of Article 14 if it lacks objective and reasonable justification. The existence of such justification must be assessed with respect to the aim and to the effects of the measures in question, having regard to principles which generally prevail in a democratic society. A difference in treatment in the exercise of a right granted by the Convention must not only follow a legitimate aim: Article 14 is still violated if it is clearly established that that there is no reasonable relationship of proportionality between the methods employed and the aims sought to be realised ….

Admitting the Human Rights Argument

36. Mr Greatorex objected to consideration of the human rights argument that had not been raised before the First-tier Tribunal. His skeleton argument of 4th January 2011 states in paragraph 8: “The First-tier Tribunal cannot be held to have made an error of law in relation to a matter not raised before it, particularly in circumstances where Parliament has underlined this in passing section 12(8) of the Social Security Act 1998. (Ironically, the Secretary of State had not raised this objection in his written response of 29th July 2010 to the appeal to the Upper Tribunal.) 

37. I regard these objections as being totally without merit in the present case, although I am aware that different considerations might apply in relation to some other jurisdictions, such as in the Employment Appeal Tribunal.

38. Mr Greatorex referred to section 12(8) of the Social Security Act 1998, which provides:

	12(8) In deciding an appeal under this section, the First-tier Tribunal – 
(a)	need not consider any issue that is not raised by the appeal; and
(b)	shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.

39. However, section 12(8)(b) merely defines the subject matter of the appeal, and Social Security Commissioners and the Upper Tribunal have consistently ruled that evidence and argument as to what were the circumstances obtaining at the time of the decision that is under appeal must be admitted irrespective of whether that evidence existed or those arguments were formulated before or after the date of the decision under appeal.

40. Section 12(8)(a) does not apply to proceedings before the Upper Tribunal (except where it is remaking a substantive decision to replace that made by the First-tier Tribunal); it creates a discretion rather than a duty not to consider an issue; it is not limited to questions of law; and Security Commissioners and the Upper Tribunal have taken a broad approach as to the meaning “raised by the appeal”.

41. On the other hand, section 6(1) of the Human Rights Act 1998 forbids a court or tribunal (and the Upper Tribunal is both) from acting in a way which is incompatible with a Convention right. This must mean that, if at all relevant, and subject to giving all parties a fair opportunity to make submissions on the relevant points, Convention rights must be considered by the First-tier Tribunal and the Upper Tribunal no matter the stage at which they are raised by the parties (or, in a relevant case, even if they are not raised by the parties).

42. Mr Greatorex relies on decisions of the Court of Appeal in Secretary of State for Work and Pensions v Hughes [2004] EWCA Civ 16 and RH v SLAM NHS Foundation Trust [2010] EWCA Civ 1273. 

43. In the former case (at paragraph 18) Lord Justice Tuckey said:

“This court considers it of utmost value, on an appeal from a specialist tribunal, to have the considered views of the point at issue of that specialist tribunal before testing them on appeal”.

44. Mr Greatorex seems not to have appreciated that in this context it is the Upper Tribunal that is the specialist tribunal when it comes to considering disputed points of social security law. The First-tier Tribunal in this type of case usually deals mainly with arguments over facts and evidence and only rarely has the benefit of hearing legal (or any) representatives putting the case for either party, let alone both parties. 

45. In Hughes, Lord Justice Tuckey continued (in paragraph 22) by referring to the comments by Lady Justice Hale (subsequently elevated to the House of Lords and the Supreme Court) who said in the case of Cooke v Secretary of State [2001] EWCA Civ 734: “It is quite probable that on a technical issue of understanding and applying the complex legislation the Social Security Commissioners will have got it right”. 

46. In the SLAM case Lord Justice Sullivan said (at paragraph 37) that particular care should be exercised before granting permission to appeal to the Court of Appeal on a ground that was not raised below and pointed out that one particular ground was not argued before either the First-tier Tribunal or the Upper Tribunal so the Upper Tribunal did not know whether the respondents had an answer to it. However, that is not the case here, and it is inappropriate to try to impose on appeals to the Upper Tribunal the same kind of restrictions that are imposed on appeals to the |Court of Appeal.

47. Neither of the above Court of Appeal decisions related to points of law raised under the Human Rights Act 1998 but in my view the Upper Tribunal is free (and is often obliged) to consider points of law on matters other than human rights law even if they have not been raised before the First-tier Tribunal. 

48. So far as is relevant, section 11 of the Tribunals, Courts and Enforcement Act 2007 provides as follows:

11(1) For the purposes of sub-section (2) the reference to a right of appeal is to a right of appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision

(2) Any party to a case has a right to appeal

(3) That right may be exercised only with permission …

(4) Permission (or leave) may be given by
	(a) the First-tier Tribunal, or
	(b) the Upper Tribunal,
on an application by the party.

49. There is no restriction here on the power to give permission to appeal to the Upper Tribunal and section 11(1) specifically refers to “any point of law arising”. The Social Security Commissioners and the Administrative Appeal Chamber have never operated any kind of “pleadings rule” and, indeed, the view taken in these jurisdictions that it might well be an error of law in itself not to identify an obvious issue that has not been raised by the parties.

50. On 20th January 2011, in Miskovic and Blazej v Secretary of State [2011] EWCA Civ 16 in the Court of Appeal, Lord Justice Sedley stated:

“108 … The law would not progress very far or very fast if every appeal were to be strictly limited to a rehearsal of the arguments advanced below. Particularly in a system based on the dialectic of oral advocacy, the possibility of modifying or abandoning weaker arguments needs to be balanced by the possibility (dangerously seductive though it can be) of developing better or fresh ones.

110. It also happens from time to time that the court itself takes a new point either because it appears to be of general importance or because justice requires it to be addressed. This may be particularly important where a party was unrepresented below.

112. … justice is best served by a power in appellate courts or tribunals to entertain new points of law, but with a concomitant power not to do so if it would either be unfair to another party or would place the court itself in an untenable position. Such powers, like most powers, may become obligations if the situation warrants it.”

51. Finally on this matter, I refer to the overriding objective set out in The Tribunal Procedure (Upper Tribunal) Rules 2008. So far as is relevant, rule 2 provides:

2(1) The overriding objective of these Rules is to enable the Upper Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly included – 
(a) …
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) …
		(d) using any special expertise of the Upper Tribunal effectively.

Is Article 1 of Protocol 1 Engaged?

52. Mr Greatorex argued that because the rules of entitlement changed so that the claimant was no longer entitled to income support as a lone parent, there ceased to be a “possession” of which the claimant could be deprived. He referred to the well established principle that the Convention does not create a right to acquire property and neither places an obligation on the state to have a social security scheme nor restricts the type or amount of benefit provided. I accept this, but this is subject to the obligation on the state not to discriminate contrary to article 14 in the way in which it operates any social security scheme that is adopted.

53. Mr Henderson argued that, prior to the change in the rules, the claimant had been entitled to income support. She had lost her entitlement, not because of any change in her circumstances but because of a change in the rules which (in his argument) had been discriminatory in effect. 

54. In R (RJM) v Secretary of State [2008] UKHL 63; [2009] 2 All ER 556 the House of Lords considered the rule that the disability premium used in the calculation of entitlement to income support could only be taken into account in the case of a person who had accommodation. The claimant had lost the premium when he became homeless. The Secretary of State accepted that this was discriminatory against those who were homeless but argued that article 1 of protocol 1 was not engaged as the claimant had no inherent or other right to have the disability premium taken into account. The House of Lords rejected this argument and applied the decision of the European Court of Human Rights in Stec v United Kingdom (2006) 43 EHRR 47. 

55. Mr Greatorex might have had a valid argument if the state had decided to abolish income support or means tested benefits generally but if the situation of the claimant in RJM engaged article 1 of protocol 1 where his circumstances had changed, then even more so is that true of the claimant in the present case where her circumstances had not changed but there was a change in the law that meant that she (and people in the same position as her) lost the entitlement that she had previously had. 

56. However, to find that article 1 of protocol 1 was engaged is not the same as finding that there was a relevant difference of treatment, still less discrimination contrary to article 14.

Is There A Difference in Treatment?

57. The relevant regulations do not overtly or directly discriminate on grounds of sex but Mr Henderson argued that there is what he calls “indirect” discrimination” but what I prefer to call “indirect difference in treatment” (because it is only discrimination” within the meaning of the Convention if it contravenes article 14, which deals with matters in addition to difference in treatment).

58. In DH v Czech Republic (2008) 47 EHRR 3 (considering the disproportionate numbers of Roma children being educated in special schools) the European Court of Human Rights said:

“184. The Court has already accepted in previous case that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though crouched in neutral terms, discriminates against a group ... such a situation … does not necessarily require a discriminatory intent.”

59. According to the General Household Survey 2007 (Office for National Statistics) 23% of households with dependent children are single parent families. According to Social Trends 39 (2008) 92% of single parents are women. The Labour Force Survey for April – June 2009 (Office for National Statistics) found that 43.3% of single parents are unemployed. Thus, he argued, in removing the entitlement to income support from single parents with dependent children over the age of 12, the Secretary of State has interfered with property rights in a way that has a hugely disproportionate effect on women.

60. Mr Greatorex and the Secretary of State argued that it was not appropriate to compare the effect of the change in the regulations on men generally with the effect on women generally. The comparison should be between the effects on lone parents with children aged 12 and under and the effects on lone parents with children aged over 12 (the implied argument being that there would be a similar proportion of affected women in each group and there are no adverse consequences for the former group).  However, I agree with Mr Henderson that a lack of difference in treatment for one group cannot justify a difference in treatment for the other group. That does leave a problem of what approach should be adopted. I have identified four possibilities:

A. If the correct approach is to ask what the effect of the change is on male income support claimants generally compared with the effect on female income support claimants generally, the answer on the basis of the statistics is that a disproportionate number of female claimant will have had their lives made more difficult compared with the number of male claimants.

B. If the correct approach is to ask what the effect of the change is on male income support lone parent claimants generally compared with the effect on female income support lone parent claimants generally, there is no evidence to support any argument that a disproportionate number of such female claimant will have had their lives made more difficult compared with the number of such male claimants.

C. If the correct approach is to ask what the effect of the change is on male income support lone parent claimants who are educating their children at home, compared with the effect on female income support lone parent claimants who are educating their children at home, again there is no evidence to support any argument that a disproportionate number of such female claimant will have had their lives made more difficult compared with the number of such male claimants.

D. If the correct approach is to ask what the effect of the change is on income support claimant home educators compared with other income support claimants, clearly the latter (both men and women) will have had their lives made more difficult compared with the latter. However, I cannot read article 14 as providing any special protection to those who are home educators and there is no basis for them to be regarded as having a “status” within the meaning of article 14.

61. The answer in approach A above merits an examination of whether the changes in the regulations pursue a legitimate aim in a proportionate way and, as explained above, the state is allowed a wide margin of appreciation when it comes to general measures of economic or social strategy. In other words, a difference of treatment of the type identified in A above requires a high threshold of irrationality or disproportionality before the courts will interfere.

Is the Difference in Treatment Discrimination?

62. The Secretary of State’s submissions argue that over 1 million lone parents (or 57.4%) are in work; that government policy is that the best route out of poverty is work; that a child of a lone parent who works is over two and a half times less likely to be living in poverty than a child of a lone parent who is not working (although it seems to me that, in the absence of further evidence, that is just as likely to be a correlation caused by other factors); that JSA has adequate flexibilities to help lone parents, such as allowing them to limit their availability to school hours where the children are under the age of 13, allowing availability to be limited to 16 hours weekly, not imposing a sanction if appropriate childcare is not available on a particular occasion, making provision for bereavement or domestic emergency, making special provision for the school summer holiday, and so on. In relation to home educators, the Secretary of State argues that it would be unfair to treat them preferentially over other lone parents, and that they have more flexibility to arrange their schedules than do parents with children at school.

63. The Secretary of State offers further arguments that appear to me to be less rational and persuasive but it is not necessary to consider them. 

64. Ultimately, the question is not what my policy would be if I were responsible for drafting the legislation, or whether I agree with the government’s aims or methods of implementing them. The questions are whether the Secretary of State has provided a rational explanation for the policy of the law in this case, which he has in my view, and whether the method of achieving the objectives of that policy are proportionate, which they are. The legal position in the present case is well within the wide margin of appreciation that the state has in the implementation of social policy and in economic matters.

Conclusions

65. I summarise my conclusions for the convenience of the parties:

a. The Upper Tribunal has jurisdiction to determine whether subordinate legislation is invalid as being  beyond the scope of the enabling power (paragraph 21);

b. the Upper Tribunal also has the power to find subordinate legislation to be invalid if it conflicts with statutory rights already enacted by other primary legislation (paragraph 27) but only in cases where there is no other reasonable way to exercise such rights;

c. However, section 7 of the Education Act 1996 does not create a specific right to home educate and its provisions do not render the relevant changes to the income support regulations ultra vires or invalid (paragraph 28).

d. Subject to giving all parties a fair opportunity to make submissions on the relevant points, Convention rights must be considered by the First-tier Tribunal and the Upper Tribunal no matter the stage at which they are raised by the parties (or, in a relevant case, even if they are not raised by the parties) (paragraph 41).

e. The Upper Tribunal is free (and is often obliged) to consider points of law on matters other than human rights law even if they have not been raised before the First-tier Tribunal (paragraph 47).

f. Article 1 of protocol 1 was engaged in the present case where the claimant’s circumstances had not changed but there was a change in the law that meant that she lost the entitlement that she had previously had (paragraph 55).

g. A disproportionate number of female claimant will have had their lives made more difficult compared with the number of male claimants (paragraph 60) and this merits an examination of whether the changes in the regulations pursue a legitimate aim in a proportionate way, although such a difference of treatment requires a high threshold of irrationality or disproportionality before the courts will interfere (paragraph 61)

h. The Secretary of State has provided a rational explanation for the policy of the law in this case and  the methods of achieving the objectives of that policy are proportionate, The legal position in the present case is well within the wide margin of appreciation that the state has in the implementation of social policy and in economic matters (paragraph 64).

66. There was also quite a fierce argument over what remedies would be available to the Upper Tribunal were I to accept the claimant’s arguments. In view of my conclusions, it is not necessary to resolve those issues.

67. For the above reasons this appeal by the claimant fails.

H. Levenson
Judge of the Upper Tribunal 

14th June 2011