RJM, R (On The Application of) v Secretary of State For Work and Pensions  UKHL 63 (22 October 2008)
The Social Security Contributions and Benefits Act 1992 (UK) provides for a 'disability premium' for people receiving welfare payments, except where the person is 'without accommodation'. In this case the House of Lords decided that discrimination in the distribution of welfare payments can be justified under the European Convention on Human Rights.
RJM suffered from mental health problems and as a result was incapable of working. He received income support which initially included a disability premium. Payment of the disability premium ceased when RJM became homeless and was forced to sleep rough.
RJM brought the matter to the House of Lords on the basis that removal of the premium was incompatible with art 14 of the Convention which provides for the enjoyment of rights without discrimination. The right involved was contained in art 1 of the First Protocol to the Convention which protects the right to possessions.
The House of Lords decided in favour of the Secretary of State. Although the House of Lords agreed with the appellant that the Regulations were discriminatory, they accepted that the Government could adequately justify this discrimination.
Right or legitimate expectation to possessions
The Secretary of State argued that a claim under art 1 of the First Protocol could not succeed as there is no right or legitimate expectation to the possession of state benefits – provision of benefits is discretionary. The Court rejected this argument on the authority of Stec v United Kingdom (2005) 41 EHRR SE295 which held that rights protected by the Convention include things 'which the state has voluntarily decided to provide.' Therefore RJM had sufficient 'possession' to bring his claim within the First Protocol.
Homelessness as a 'status'
Article 14 of the Convention lists personal attributes that would constitute a basis for discrimination. Homelessness is not specified directly, but the appellant argued that it fell within the final words of the article, 'or any other status.' The Court of Appeal had rejected this argument and found that homelessness was a voluntary choice. The House of Lords accepted the appellant's argument, pointing out that religion, political opinion and even sex can also be a matter of choice. It therefore found that homelessness was a 'status' or personal attribute and there had been discrimination.
The Secretary of State justified the discrimination against those without accommodation on two grounds:
- The preference to direct money to resources that will provide accommodation instead of providing money through a disability premium that may be misused;
- The homeless disabled are less likely to need a disability premium designed, in part, to pay for expenses such as heating and household bills.
Despite noting the opposing arguments, the House of Lords ultimately decided that 'callous though it may seem, the Government is entitled to form the view that assistance should be given to them by other means'. The Lords expressed reluctance to interfere with the views of the executive and found that the policy was adequately justified.
Relevance to the Victorian Charter
Section 8(2) of the Charter states that 'every person has the right to enjoy his or her human rights without discrimination.' Discrimination is defined in the Charter by reference to s 6 of the Equal Opportunity Act 1995 (Vic). Section 6 lists personal attributes that are protected by the EO Act – social status and homelessness are not currently among those protected attributes. Under the Victorian Charter, an argument about justification may not arise as initial discrimination may be difficult to categorise. It is noted, however, that Julian Gardiner’s Final Report of the Victorian Equal Opportunity Review recommended that homelessness be included in Victoria’s equal opportunity legislation as a protected attribute.
The decision is available at http://www.bailii.org/uk/cases/UKHL/2008/63.html.
Saie Neal is a Summer Clerk with DLA Phillips Fox