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[2009] UKUT 37 (AAC) (18 February 2009)

CDLA/1450/2008

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. On 3^rd November 2008 this matter was transferred to the Upper Tribunal
2. This appeal by the claimant does not succeed. I confirm the decision of the Rochdale tribunal made on 4^th December 2007 under reference 947/07/01792. This is that, in respect of Disability Living Allowance ("DLA") the claimant continues to be entitled to lower rate mobility component indefinitely from 6^th April 1992 and to middle rate care component (day basis) indefinitely from 10^th September 1992. However, she is not entitled to any higher award in respect of her supersession application made on or about 17^th April 2007.
3. I held an oral hearing of this appeal (as a Social Security Commissioner) on 13^th October 2008. The claimant did not attend in person but was represented by Helen Mountfield, instructed by the Public Law Project. The Secretary of State was represented by Mr Buley, instructed by the Solicitor to the Department for Work and Pensions. I am grateful to both of them for their assistance, and also to those instructing them who made subsequent written submissions.

Background and Procedure

4. The claimant is a woman who was born on 2^nd January 1937. It is important to note that she reached the age of 65 on 2^nd January 2002. She had difficulties arising from diabetes and from Korsakoff's Syndrome, which is a brain disorder caused by lack thiamine, the effects of which can include amnesia, apathy and related symptoms. From August 1991 she was living in a nursing home. In due course an award of DLA was made as indicated above. There is no suggestion that she was not or is not entitled to at least that level of award, and it has not been suggested that she would be entitled to a higher rate of care component.
5. In June 2006 the claimant fell and fractured her knee and then could not walk. Two operations failed to restore her mobility and she had to use a wheelchair. In April 2007 she applied for supersession of the decision making the existing award of DLA and for it to be replaced by a decision awarding higher rate mobility component instead of lower rate mobility component. At the time the cash difference between these two levels of award was £27.90 per week.
6. On 20^th July 2007 the Secretary of State refused to supersede the previous decision on the basis that the claimant was over 65 when her mobility needs increased. On 21^st August 2007 the claimant appealed to the tribunal against this decision of the Secretary of State, raising the argument that she had been discriminated against in breach of the human rights legislation.
7. The tribunal considered the matter on 4^th December 2007 in the absence of the parties and confirmed the decision of the Secretary of State. Its statement of reasons was confused about the claimant's age, and failed to deal with the human rights argument, but in my opinion the tribunal made the only outcome decision that was, as a matter of law, open to it. On 26^th March 2008 the District Chairman of the tribunal refused the claimant leave to appeal to the Social Security Commissioner against the decision of the tribunal, but she now appeals by my leave granted (as a Social Security Commissioner) on 12^th May 2008. I held an oral hearing of this appeal (as a Social Security Commissioner) on 13^th October 2008, but deferred making a decision until the House of Lords had decided the case of R (on the application of RJM) (FC) v Secretary of State for Work and Pensions [2008] UKHL 63 ("RJM"), which it decided on 22^nd October 2008, and the parties had a proper opportunity to consider and make submissions on that decision. This appeal was then transferred to the Upper Tribunal.

DLA Law

8. Section 73(1)(d) of the Social Security Contributions and Benefits Act 1992, when read with the rest of that section, provides entitlement to lower rate mobility component of DLA if a person:

73(1)(d) … is able to walk but is so severely disabled physically or mentally that, disregarding any ability [s]he she may have to use routes which are familiar … [s]he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.

9. Section 73(1)(a) provides entitlement to higher rate mobility component of DLA if a person:

73(1)(a) … is suffering from such physical disablement that [s]he is either unable to walk or virtually unable to do so.

10. At the time of the Secretary of State's decision section 75(1) of the Act (which has now been reworded but not in a way that affects the present case) provided:

75(1) Except to the extent to which regulations provide otherwise, no person shall be entitled to either component of a disability living allowance for any period after [s]he attains the age of 65, otherwise than by a virtue of an award made before [s]he attains that age.

11. Regulation 3 of the Social Security (Disability Living Allowance) Regulation 1991 provides an exception to section 65(1) where a new claim is made before the age of 65, and has not been decided, but that was not the case on the facts of this appeal.
12. Paragraph 6(2) of schedule 1 to those regulations provides another exception when a person of 65 or over is already entitled to lower rate mobility component and it is decided that the awarding decision ought to be revised or superseded, or there is a renewal claim. In such a case that person is not precluded solely by reason of the fact that she has attained the age of 65 from entitlement to the lower rate mobility component, but there is no provision for entitlement to the higher rate in such a case.
13. It is common ground between the parties on the facts of the present case that, subject to arguments of human rights law, as the legislation stands there can be no entitlement to higher rate mobility component. It should also be pointed out that the criteria for entitlement to the two levels of mobility component are quite different, so that it is not the case that, quite apart from any question of age, if the condition of a person entitled to the lower rate deteriorates significantly, that would mean that the person would necessarily be entitled to the higher rate.

Human Rights Act 1998

14. That leaves the issue of whether there is any breach of human rights law and specifically the position under the Human Rights Act 1998, which came fully into force on 2^nd October 2000. Amongst other matters, the Act provides for direct application of the European Convention on Human Rights ("the Convention") in UK domestic law. The judicial authority established under the Convention is the European Court of Human Rights.
15. The main relevant provisions of the Human Rights Act 1998 are as follows:

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

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

Article 8:

8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights or freedoms of others.

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.

The Claimant's Case

17. The claimant argues that she is the victim of unlawful discrimination on grounds of age contrary to the above provisions of the Convention, that this discrimination cannot be justified and that the domestic legislation should be read so as to avoid that effect. I will deal with the Secretary of State's case as I go through the various aspects of the claimant's case.

Relief and Remedy

18. Although, as it turns out, the question of a remedy does not arise (because I have found against the claimant) I accept the claimant's suggestion that if I had reached the contrary decision I could have provided a remedy for people in the same position as this particular claimant by disapplying certain words in paragraph 6(2) of schedule 1 to the 1991 regulations. I do not accept the Secretary of State's contention that it would be wrong for me to do this, or that it would contravene the provisions of section 75(1) of the Social Security Contributions and Benefits Act 1992, which is explicitly made subject to regulations providing exceptions to the general rule set out in the section.

Article 14 and the Convention Rights

19. 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).

Article 8

20. The claimant argues that payment of DLA is "obviously" a matter which falls within the ambit of article 8. Freedom of movement is an aspect of private life. DLA mobility component is intended to contribute to the equality of disabled people in relation to freedom of movement and to permit claimants a minimum level of mobility to enable her to lead a normal personal life. Deprivation of access to higher rate mobility component when the state has provided such a scheme threatens the claimant's ability to do this "and has a significant impact on her personal autonomy".
21. The Secretary of State argues that in the overall context of the state benefit system (including the claimant's receipt of lower rate mobility component), the non-availability of the higher rate cannot have such a severe effect as to threaten her ability to lead a normal life.
22. The Secretary of State relies on the decision of the House of Lords in M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 AC 91 ("M"). In that case the non-resident mother paid child support maintenance to the father of her two children, with whom they lived most of the time. The mother's new partner, with whom she now lived, was a woman. The method of calculation was such that the mother had to pay a higher amount of child support than if her new partner were a man. The mother argued, among other matters, that this assessment engaged her rights under article 8. The majority of the House of Lords rejected this, on the basis that having to pay a higher amount for the maintenance of her children was not an intrusion into her private life, that her personal and sexual autonomy had not been invaded, that she had not been criminalised, threatened or humiliated, and that her right to respect for her continuing family life with her children had not been interfered with because the increased amount did not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which were the essence of family life. The child support regime did no more than enforce the pre-existing obligation of non-resident parents to contribute to the maintenance of their children.
23. I do not find the decision in M to be of much assistance in the present case (and I also observe that the article 8 issue did not arise in RJM). As Lord Walker pointed out in M, "The link with respect for her private life is very tenuous indeed" (paragraph 88). The issue was the amount that M should contribute to the maintenance of her children. Except in the most general way that finances affect everybody, the amount did not affect her private and family life, her home or her correspondence.
24. However, if a person is unable or virtually unable to walk, which is the main non age related condition of entitlement to higher rate mobility component, then the availability of the benefit might make all the difference between being housebound and being able to pay for transport to visit family and others and to lead a more autonomous life. It is not necessary in the present case to show that article 8 has been breached (and there is no real suggestion that it has been) but I am satisfied that it is engaged, that higher rate mobility component (and probably the whole of DLA) comes within its ambit. This conclusion is consistent with other recent authorities.
25. In Esfandiari and Others v Secretary of State for Work and Pensions [2005] EWCA Civ 1258, in a case which was decide after and with reference to the decision of the House of Lords in M, the Court of Appeal held that funeral payments come within the ambit of article 8 because "the need for a decent funeral is a basic entitlement of human dignity" (Lord Justice Carnwath at paragraph 23).
26. In R (Hooper and Others) v Secretary of State for Work and Pensions [2005] UKHL 29 the House of Lords accepted the agreement of the parties that widows' social security benefits fell within the ambit of article 8.

Article 1 of Protocol 1

27. In RJM the House of Lords considered the rule that the disability premium, which has the effect of increasing the amount of income support to which a disabled person is entitled, is only available to a person who has accommodation and is therefore not available to a homeless person.
28. The House of Lords decided (paragraph 31) that "it would require the most exceptional circumstances" before any national court should refuse to apply the decision of the European Court of Human Rights in Stec v United Kingdom (2005) 41 EHRR SE295 to the effect that welfare benefits come within the ambit of article 1 of protocol 1, whether or not they are contributory benefits. Although this does not guarantee the right to acquire property:

"In cases … concerning a complaint under article 14 in conjunction with article 1 of protocol 1 that the applicant had been denied all or part of a particular benefit on a discriminatory ground covered by article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right enforceable under domestic law to receive the benefit in question … Although [article 1 of protocol 1] does not include the right to receive a social security payment of any kind, if a state does decide to create a benefits scheme, it must do so in a manner which is compatible with article 14."

(Paragraph 54 of Stec cited by Lord Neuberger in paragraph 30 of RJM).

29. The House of Lords in RJM decided that the disability premium was within the scope of article 1 of protocol 1. In CTC/2608/2008 Her Majesty's Revenue and Customs conceded before Upper Tribunal Judge Jacobs that the question of entitlement of substantial minority carers to child tax credit was within the scope of article 1 of protocol 1 (paragraph 13). The Secretary of State now accepts in the present case that the claimant's complaint is also within the scope of article 1 of protocol 1, and that is the conclusion that I had reached independently of any concession by the Secretary of State.

Article 14 and Status

30. Age is not one of the grounds explicitly specified in article 14, but is it included within the concept of "other status"? In RJM Lord Neuberger, speaking for the House of Lords, was "content" to accept the previous consistent approach of the House that discrimination for the purposes of article 14 had to be based on a "personal characteristic" but stated that a "generous meaning" must be given to these words, which were not to be too closely limited by the specific grounds in article 14 (paragraphs 35 to 43).
31. It is not disputed in the present case that age is a status capable of being protected by article 14, and that is also my conclusion, but some of the arguments by both parties have confused the question of whether age is such a status with the question of whether difference in treatment on grounds of age is justifiable in any particular context.

Article 14 and Justification

32. 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".

33. In R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 ("Carson"), drawing an important distinction Lord Hoffman said:

"14. … Discrimination means a failure to treat like cases alike. There is obviously no discrimination when the cases are relevantly different…. There is discrimination only if the cases are not sufficiently different to justify the difference in treatment…."

15. Whether cases are sufficiently different to justify the difference in treatment is partly a matter of values and partly a question of rationality. Article 14 expresses the Enlightenment value that that every human being is entitled to equal respect and to be treated as an end and not a means. Characteristics such as race, caste, noble birth, membership of a political party and … gender, are seldom, if ever, acceptable grounds for differences in treatment … the Strasbourg court has given [article 14] a wide interpretation… and it is therefore necessary … to distinguish between those grounds of discrimination which prima facie offend our notions of respect due to the individual and those which merely require some form of rational justification….

16. There are two important consequences of making this distinction. First, discrimination in the first category cannot be justified merely on utilitarian grounds, e.g. that it is rational to prefer to employ men rather than women because more women give up their employment to look after children. That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit. On the other hand, differences in treatment in the second category (e.g. on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest. Secondly, while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government.

17. There may be borderline cases in which in which it is not easy to allocate the ground of discrimination to one category or the other and … there are shifts in the values of society on these matters … But there is usually no difficulty about deciding whether one is dealing with a case in which the right to respect for the individuality of a human being is at stake or merely a question of general social policy …"

34. In Stec 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 …"

The Evidence and Justification

35. The Secretary of State points out, quite correctly, that consideration must be given to the interlocking nature of the social security scheme as a whole, and that the cut-off point in the present case "is precisely the point at which one becomes entitled to a range of other benefits (including, but not limited to, retirement pension)". Government policy behind the introduction of mobility allowance in 1975 was designed to help primarily those of working age with mobility problems. In January 1990 a White Paper – The Way Ahead: Benefits For Disabled People (Cm 917) –preceded the restructuring of benefits in the Social Security Contributions and Benefits Act 1992. Paragraph 78 stated in connection with the aim of the proposed new benefit structure:

"the overall structure should give priority for additional help to those disabled earlier in life for whom disability is more financially disruptive in terms of the lost opportunity to earn and save."

36. At that time, according to the Secretary of State, pensioners, constituting two-thirds of those identified as disabled, had experienced 23% growth in net incomes in real terms since 1979 (paragraph 3.20). Further, in 1985 the average net equivalent weekly income of a disabled non-pensioner family unit was 73% of the average for the general (non-pensioner) population. The average net equivalent weekly income of a disabled pensioner family unit was 98% of the average for the general (pensioner) population (paragraph 2.15). This, the Secretary of State argued, provided a rational justification for the difference in treatment of which the claimant complains.
37. The claimant submitted a written statement from Paul Cann, Director of Policy and External relations for Help The Aged. Mr Cann challenged the suggestion that people who become disabled in later life have had the opportunity to prepare for older age and for a degree of loss of independence. He pointed out that 9 million people are over the age of 65 (expected to increase to over 15 million in the next 25 years) and that 1.25 million are over the age of 85, although he does not specify the population to which he is referring (UK? GB? England?). He suggests that to discriminate against such a large number of people is "untenable in a civilised society of which freedom of movement is a cornerstone". 67,080 people over the age of 65 are in receipt of lower rate mobility component and are potentially affected by the decision in this case. I am not sure about this, because the criteria of entitlement for the two levels of mobility component are quite different. However, if he is correct, and if all such people were entitled to higher rate mobility component instead of lower rate, that is a potential extra cost of over £100 million annually. I take his further argument that as there are already 620,540 people aged 65 or over in receipt of the higher rate, the additional cost would not be a very big proportion of this, still less of the overall benefits budget, but £100 million a year is still a significant amount. For example, it could pay for the employment of perhaps 3000 or more teachers and nurses or welfare rights workers.

Conclusions

38. I will assume that the claimant (after she reached the age of 65) satisfied the non-age conditions of entitlement to higher rate mobility component. The question of entitlement to this benefit is within the ambit of both article 8 and article 1 of protocol 1 of the Convention. Because of her age the claimant was not in fact entitled to that part of DLA. Had she satisfied those conditions before reaching the age of 65 she would have been so entitled. The fact that she was and continued to be entitled to lower rate mobility component is of limited relevance because the conditions of entitlement to the two levels are so different. The difference in treatment between those who did and those who did not satisfy the conditions of entitlement before reaching the age of 65 is by definition based on age. Age is not specifically referred to in the wording of article 14 of the Convention, but it is encompassed by the words "or other status". It is not one of the "suspect" grounds listed by Lord Hoffman in paragraph 15 of Carson. To treat a person differently on grounds of age does not inevitably "offend our notions of respect due to the individual" although it is capable of so doing. It depends on the circumstances and the nature of the difference in treatment. To treat a small child differently from a mature and experienced adult does not really require much justification. To treat mature adults differently from each other because they are of different ages requires more justification. Demeaning treatment may well be impossible to justify. However, a difference of treatment in entitlement to one particular social security monetary benefit in a complex and sophisticated benefit system when the complainant has reached the age of entitlement to other benefits is not demeaning. It does not deprive the claimant of "entitlement to equal respect and to be treated as an end and not a means" (per Lord Hoffman in Carson). However, it does require rational justification.
39. The question is not what my policy would be if I were the Secretary of State or the Chancellor of the Exchequer. The question is whether the Secretary of State has provided a rational explanation for the policy of the law in this case, which he has, and whether the method of achieving the objectives of that policy are proportionate, which they are. The State has, as has been observed above, a wide margin of appreciation in the implementation of social policy and in economic matters. The legal position in the present case is well within that margin.
40. For the above reasons this appeal by the claimant fails.

H. Levenson

Judge of the Upper Tribunal

18^th February 2009