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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2004] UKSSCSC CSJSA_125_2004 (26 July 2004) URL: http://www.bailii.org/uk/cases/UKSSCSC/2004/CSJSA_125_2004.html Cite as: [2004] UKSSCSC CSJSA_125_2004 |
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[2004] UKSSCSC CSJSA_125_2004 (26 July 2004)
THE SOCIAL SECURITY COMMISSIONERS
Commissioner's Case No: CSJSA/125/04
SOCIAL SECURITY ACT 1998
APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW
COMMISSIONER: D J MAY QC
Oral Hearing
Appellant: Respondent: Secretary of State
Tribunal: Glasgow Tribunal Case No:
DECISION OF SOCIAL SECURITY COMMISSIONER
"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 provides:
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."
In respect of article 14 the ground of discrimination asserted to apply in this case was related to property. Mr Dailly conceded that this was the only element covered by article 14 which was in issue.
"These questions are as follows. (i) Do the facts fall within the ambit of one or more of the substantive Convention provisions (for the relevant Convention rights see section I(i) of the Human Rights Act 1998)? (ii) If so, was there different treatment as respects that right between the complainant on the one hand and other person put forward for comparison ("the chosen comparators") on the other? (iii) Were the chosen comparators in an analogous situation to the complainant's situation? (iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?"
"23. Mr John Howell, who appeared for the Secretary of State for the Department for Transport, Local Government and the Regions, argued that article 8 was not engaged, because that article did not give Mr Michalak a right to a secure tenancy by succession (see paragraph 18 above), but merely a right to respect for his home. In my judgment, this would be to make too narrow a view of the effect of article 14. The trigger for the application of article 14 is whether the facts in issue "fall within the ambit" of one or more of the other Convention provisions (Rasmussen v Denmark (1984) 7 EHRR 371, 377, para 29), and the finding of a violation under article 14 is not dependent on first establishing a violation of some other Convention right. Indeed, in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, 503, para 82 the European Court Said:-
"The notion of discrimination within the meaning of article 14 includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention."
24. Mr Michalak's complaint is that, in violating his right to respect for his home by seeking or ordering his eviction in circumstances where a comparator in an analogous situation would not have been evicted, a public authority (whether the council or the court) was discriminating against him in a matter which falls within the ambit of article 8. I am satisfied that his complaint passes the first of the four article 8 tests."
7 Mr Dailly, on the appellant's behalf, submitted that the breach of the appellant's human rights arose as follows: Article 8 of the European Convention on Human Rights requires protection of the appellant's "right to respect for … his home" and Article 14 of the same convention requires that the appellant's enjoyment of the above right should be secured to him "without discrimination on any ground". The provision of subordinate legislation referred to in para 3 above which were applied to the appellant's case by the decision maker, resulted in the appellant, as a home owner with a mortgage, receiving state help with some of his housing costs as an unemployed person only from a date 8 weeks after his commencing to receive income based JSA and then only at 50% of the allowable costs (essentially mortgage interest payments) until he had been receiving that benefit for 26 weeks when he became eligible for the allowable costs in full. On the other hand, if the claimant had been a tenant of his property, he would have received state help, with the rent payable on his property, in the form of housing benefit from the beginning of his period of unemployment. Those acting on behalf of the Secretary of State do not dispute that the above accurately summarises the position. Mr Dailly went on to argue that the differentiation just described between an unemployed home owner with a mortgage and an unemployed tenant amounted to unlawful discrimination under the Articles of the European Convention on Human Rights referred to above. Mr Dymock on behalf of the Secretary of State submitted that this was not the case.
…..
9 The first legal issue which arises is whether Article 8 with its protection of the claimant's right to his home when read along with Article 14, is engaged at all in this case. In my view it is. I reach this conclusion on the basis of 2 decisions of the Court of Appeal. I refer firstly to Tucker v Secretary of State for Social Security (docs 20 to 30 of the bundle). See especially para 41 of document 28. Secondly, I refer to the decision again of the Court of Appeal in Carson and Reynolds v the Secretary of State for Work and Pensions (documents 95-128 of the bundle). See especially para 27 of document 105 and paras 37-41 inclusive of document 108-111 inclusive. I draw further support for this conclusion from the decision of Commissioner Levenson in CIS/4329/2002 referred to in para 5 above where he dealt with a challenge to the £100,000 mortgage cap on the basis that Article 8 even standing alone, applied to that situation. See also the cases cited by him at para 49 of his judgement in the above case. Article 8 does not require the UK Government to provide a scheme to assist with housing costs for the unemployed. However, if it does make such provision, it must do so in a way that does not discriminate between claimants for the relevant assistance. That is the legal effect of applying Article 8 read along with Article 14 to the present case."
"The meaning of that paragraph is unclear. I do not accept that domestic law has to have been made pursuant to an obligation arising under the Convention for provisions of the Convention to be engaged. Indeed, much of English law was developed not only before the passage of the Human Rights Act 1998 but even before the drafting of the Convention. That does not mean that the Convention protection is not engaged. I think the paragraph means that it cannot be assumed that every aspect of income support engages the protection of Article 8. I cannot read it as excluding the whole of income support from the ambit of Article 8. If, for example, the regulations were to provide that the mortgage cap is £100,000 except for people who were born in Norway, in which case it is limited to £80,000, I cannot believe that either the domestic courts or the European Court of Human Rights would refuse to intervene on the basis that Article 8 is not engaged."
"…..whom I identified as being an unemployed person in exactly the same situation as the appellant except for the nature of his housing tenure, ie a tenant as distinct from someone like the appellant who is a home owner with a mortgage."
Mr Dailly did not dispute this and I accept it.
"I further consider that the appellant and that comparator are in an analogous situation in that both of them are unemployed, claiming state benefit on that basis and having their right to remain in their home protected by some degree of state provision."
"The crunch question is therefore whether the admitted differentiation in their treatment has an objective and reasonable justification. I take the view that the differentiation is based on the matters described in detail in para 8 above and that the policy reasons described in that paragraph amount to an objective and reasonable justification. I consider that in making the differentiation, which it did between the 2 cases on the basis of the issue of acquiring a capital asset, the UK Government did pursue a legitimate aim and further the differential treatment had a reasonable relationship of proportionality to the aims sought to be achieved by the legislation."
(Signed)
D J MAY QC
Commissioner
Date: 26 July 2004