Human Rights, Anti-Discrimination and Social Security Benefits: Recent UK Case Law

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1 Trinity College Dublin, Ireland From the SelectedWorks of Mel Cousins 2010 Human Rights, Anti-Discrimination and Social Security Benefits: Recent UK Case Law Mel Cousins, Glasgow Caledonian University Available at:

2 This article was downloaded by: [Mel Cousins] On: 10 February 2012, At: 23:50 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: Registered office: Mortimer House, Mortimer Street, London W1T 3JH, UK Journal of Social Welfare and Family Law Publication details, including instructions for authors and subscription information: Human rights, anti-discrimination and social security benefits: recent UK case law Mel Cousins a a School of Law and Social Sciences, Glasgow Caledonian University, Glasgow, UK Available online: 10 Dec 2010 To cite this article: Mel Cousins (2010): Human rights, anti-discrimination and social security benefits: recent UK case law, Journal of Social Welfare and Family Law, 32:4, To link to this article: PLEASE SCROLL DOWN FOR ARTICLE Full terms and conditions of use: This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. The publisher does not give any warranty express or implied or make any representation that the contents will be complete or accurate or up to date. The accuracy of any instructions, formulae, and drug doses should be independently verified with primary sources. The publisher shall not be liable for any loss, actions, claims, proceedings, demand, or costs or damages whatsoever or howsoever caused arising directly or indirectly in connection with or arising out of the use of this material.

3 Journal of Social Welfare & Family Law Vol. 32, No. 4, December 2010, CASE COMMENTARIES Human rights, anti-discrimination and social security benefits: recent UK case law R (DLA) 1/09, N.T. v. Secretary of State for Work and Pensions (2009) UKUT 37 S.M. v.advocate General (2010) ScotCS 15 ** Humphreys v. HM Revenue and Customs (2010) EWCA Civ 56 (on appeal from the decision of the Upper Tribunal in CTC/2608/2008 (2009) UKUT 24) ** Mel Cousins* School of Law and Social Sciences, Glasgow Caledonian University, Glasgow, UK Since the adoption of the Human Rights Act 1998, challenges to UK social security law on the basis of the European Convention on Human Rights have become common especially under the anti-discrimination provisions of Article 14. However, few of these challenges have been successful and, in general, the English courts have shown a poor understanding of the principles of human rights law. The recent decisions of the European Court of Human Rights in Stec (2005) 41 EHRR SE 295 and the House of Lords in RJM (2008) UKHL 63 have clarified important issues including the material scope of the Convention and the fact that a broad understanding should be given to the concept of status for the purposes of Article 14. Keywords: European Convention on Human Rights; anti-discrimination; application in recent social security cases Introduction This case note examines a number of recent decisions of the UK courts concerning Article 14 of the ECHR and social security benefits, which are, in a broad sense, family-related. It is argued that these decisions mark an important step forward in the application of the anti-discrimination provisions of the Convention, albeit that it seems likely that, in the absence of a more stringent approach to the assessment of justification, relatively few cases will be successful. We consider three decisions: R (DLA) 1/09, a decision of the Upper Tribunal concerning the upper age limit for the mobility component of disability living allowance (DLA); S.M., an opinion of the Scottish Court of Sessions concerning the lower age limit for that payment; * mcousi11@caledonian.ac.uk **The decisions in these cases are currently under appeal. ISSN print/issn online q 2010 Taylor & Francis DOI: /

4 392 M. Cousins and Humphreys, a judgment of the English Court of Appeal concerning the entitlement to child tax credit where parents are separated but share care for their children. Upper age limit for mobility allowance Background In R (DLA) 1/09, the Upper Tribunal (Judge Levenson) considered the compatibility of the upper age limit of the mobility component of DLA with article 14 of the ECHR. The claimant had been in receipt of lower-rate mobility component and middle-rate care component from before reaching the age of 65. After reaching that age, she fell and fractured her knee and subsequently had to use a wheelchair. At the time, s.75(1) of the Social Security Contributions and Benefits Act 1992 provided that 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. On that basis, the Secretary of State refused to supersede the previous decision on the basis that the claimant was over 65 when her mobility needs increased. The Convention issue It was common ground that there was no entitlement to higher rate mobility component as the law stood unless it was found to be in breach of the ECHR. Article 14 provides that 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 14 is not a freestanding non-discrimination or equality clause and the Court of Human Rights has consistently held that Article 14 complements the other substantive provisions of the Convention and the protocols. It has no independent existence since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by these provisions. Although the application of Article 14 does not presuppose a breach of these provisions and to this extent it is autonomous there can be no room for its application unless the fact at issue falls within the ambit of one or more of them (Gaygusuz v. Austria, 17371/90, 16 September 1996 (1996) ECHR 36, para. 36). Therefore, it is necessary to show that the benefit in question fell within the scope of some other provisions of the Convention. Counsel for the appellant argued that the mobility component fell within the scope of both Article 8 (respect for private and family life) and Protocol 1, paragraph 1 of the ECHR (P1-1 which concerns the right to possessions) and that the age limit was discriminatory contrary to Article 14 of the ECHR. Within the ambit of the Convention? In the light of the Stec and RJM decisions, it would appear that the vast majority of social security payments will fall within the scope of P1-1, and the Secretary of State conceded that this was the case here (para. 29). However, it may still be relevant to determine whether another provision of the Convention is engaged. In this case, the Secretary of State argued that Article 8 was not engaged relying on the decision of the House of Lords in Secretary of State for Work and Pensions v. M (2006) UKHL 11. However, Judge Levenson did not find this decision which concerned child support of much assistance (para. 23). He pointed

5 Journal of Social Welfare & Family Law 393 out that the issue in M was the amount that she should contribute to the maintenance of her children. Except in the most general way, Judge Levenson opined, the amount did not affect her private and family life, her home or her correspondence (para. 24). In contrast if a person is unable or virtually unable to walk... 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. Therefore, he took the view that the higher rate mobility component (and probably the whole of DLA) comes within the ambit of Article 8. In support of this approach, he referred to Esfandiari v. Secretary of State for Work and Pensions (2005) EWCA Civ 282, where 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 requirement of human dignity (at para. 23). Status and justification It has been clarified that in order to show a breach of Article 14 the discrimination must involve some status but it was not disputed in the instant case that age was such a status. Therefore, the critical issue was whether the difference in treatment could be justified. The longstanding case law of the Court of Human Rights has established that in order to provide objective justification for a difference in treatment, the policy adopted must: (i) pursue a legitimate aim; and (ii) there must be a reasonable relationship of proportionality between the means employed and the aims sought to be realised. The Secretary of State emphasised the interlocking nature of the social security scheme as a whole and pointed out that the cut-off age of 65 was the point at which one becomes entitled to a range of other benefits (including retirement pension). It was argued that Government policy behind the introduction of mobility allowance in 1975 was designed to help primarily those of working age with mobility problems (White Paper 1990). The Secretary of State argued that, 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. In contrast, the average net equivalent weekly income of a disabled pensioner family unit was 98% of the average for the general (pensioner) population. This, the Secretary of State argued, provided a rational justification for the difference in treatment. The claimant 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. Although a wide range of statuses have been considered to fall within the scope of Article 14, the House of Lords in Carson (2005) UKHL 37 (at para. 15) argued that it was 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 rational justification... In this case, Judge Levenson (at para. 38) considered that age is not one of the suspect grounds listed by Lord Hoffman... 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.

6 394 M. Cousins Judge Levenson found that the Secretary of State had provided a rational explanation for the policy of the law in this case and that the method of achieving the objectives of that policy was proportionate. This decision has been followed by Judge Lane in CS v. Secretary of State for Work and Pensions (2009) UKUT 257. Lower age limit for mobility component Background S.73 of the Social Security Contributions and Benefits Act 1992 (as amended) provides that mobility component cannot be awarded to a child under the age of three. The minimum age had originally been set at five, but following advice from the Disability Living Allowance Advisory Board, the limit had been reduced to three. This, as outlined in a letter from Alastair Darling MP, then Secretary of State for Work and Pensions (quoted at para. 11), was on the basis that... whilst age is the point at which most children are able to walk independently, many remain reliant on a pushchair until the age of four. Between those ages, development of walking ability will vary from child to child. The report noted that 80% of children who, for whatever reason, cannot walk at age can by the age of 4. In other words, if awards were made from age 2, entitlement would be invalidated by changes of circumstances within just a few months in the great majority of cases. Age 3 therefore seemed to be a generous compromise. It is important to realise that this decision was made in the context of the current criteria for the higher rate mobility component, which is primarily based on a person s inability or virtual inability to walk. The child involved in this case had suffered severe health problems from birth but was refused a mobility award because of the lower age limit. The Convention issue Again, it was agreed that no entitlement arose on the law as it stood. It was argued that the lower age limit was in breach of Article 14 taken in conjunction with P1-1 and/or Article 8. Within the ambit? It was again accepted that P1-1 was engaged (at para. 18). However, in contrast to the Upper Tribunal decision, the Court of Sessions concluded that Article 8 was not engaged. Lord Brodie took from the M case the conclusion that in order for Article 8 to be engaged there must be a direct (rather than a merely tenuous ) link between the difference in treatment and the substantive right in question, in this case respect for private and family life and home. He argued (at para. 27) that The right is to respect and therefore infringement of the right involves a failure to accord respect to, in the case of private life, the principles of personal autonomy and selfdetermination, and in the case of family life, to relationships as between family members. In this case, he agreed with counsel for the Secretary of State that in the circumstances of this case, the child does not have personal autonomy which can be infringed as he was entirely dependent on his parents (at para. 28). He distinguished the recent Moskal v. Poland decision (10373/05, 15 September 2009) of the European Court of Human Rights in which the Court held that an early-retirement pension granted to allow parents to stop working to care for a seriously disabled child was within the scope of Article 8 on the basis that Moskal involved the disruption of family life consequent on the withdrawal of a

7 Journal of Social Welfare & Family Law 395 pension on receipt of which the applicant had been encouraged significantly to reorganise her whole financial circumstances. Status and justification It was again accepted that age was a status albeit a secondary category ground (at para. 29). Lord Brodie pointed out that as a secondary category was involved rationality rather than values predominate and the court must regard justification as sufficient unless it is manifestly without reasonable foundation (at paras 34 35). However, the Court did in fact give detailed consideration to the rationale advanced by the Secretary of State, unsurprisingly concluding that the internal logic of the benefit (which, of course, concerned mobility) required some lower age limit. Lord Brodie accepted that this could be fixed at a point less than three years, but pointed out that it was not the role of the court, in considering a Convention challenge, to review what are essentially policy choices (at para. 38). In this case, Parliament, on the basis of expert advice, had set the limit at three, and the court could not say that this was irrational, in pursuit of an illegitimate aim or disproportionate in its effect. Accordingly, there was no breach of the Convention. Allocation of child tax credit Background Humphreys concerns the rules concerning allocation of child tax credit (CTC) between separated parents both of whom provide care for their child(ren). The appellant was in receipt of income support. He had the care of his children for approximately three days a week while his wife cared for them for the remaining days. He claimed CTC in respect of the children. Although the primary legislation allows for the possibility of apportioning CTC between separated spouses, the regulations in force (Child Tax Credit Regulations 2002) provide that a person is to be treated as responsible for a child or qualifying young person who is normally living with him (Rule 1 of Regulation 3). Where a child lives with two or more persons in different households and more than one person claims CTC in respect of the child, the child is treated as the responsibility of whichever persons has the main responsibility for him (and only one award of CTC can be made) (Rule 2 of Regulation 3). The Commissioners for Her Majesty s Revenue and Customs refused the claim because, as a minority carer, Mr. Humphreys was not responsible for the children within the terms of the legislation. He argued that this was indirectly discriminatory contrary to Article 14 of the ECHR (as CTC is a family benefit it falls outside the scope of Directive 79/7/EEC). Counsel for Mr. Humphreys relied on the Hockenjos case (2004) EWCA Civ 1749, in which the Court of Appeal held that certain provisions of the then scheme relating to jobseekers allowance (JSA) constituted unlawful discrimination, contrary to the equal treatment provisions of Council Directive 79/7/EEC, in that entitlement to an additional amount in respect of a child ( child premium ) was dependent on whether the applicant was responsible for the child, and the rules for determining responsibility discriminated unjustifiably against (predominantly male) minority carers. The Convention issue It was argued that the main responsibility rule indirectly discriminated against men contrary to Article 14 taken with P1-1.

8 396 M. Cousins Within the ambit? At the appeal tribunal level, the main argument had been that CTC was within the ambit of Article 8. However, by the time it reached the Upper Tribunal (and in the Court of Appeal), the Secretary of State conceded that (in the light of RJM), the claim fell within P1-1 and the Article 8 issue was not pursued ((2009) UKUT 24 at para. 13). Disproportionate impact? As this was a case of alleged indirect discrimination, the question arose before the Upper Tribunal as to whether Mr. Humphreys had shown that the provision had a disproportionate impact on men. Judge Jacobs referred to the comments of Baroness Hale in AL (Serbia) v. Secretary of State for the Home Department ((2008) UKHL 42 at para. 25), drawing from them that the focus should be on the issue of discrimination rather than an analysis of statistical information. He also referred to the statement of the Grand Chamber of the Court of Human Rights in DH v. Czech Republic (57325/00, 13 November 2007 at para. 179) that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation... Although the statistical evidence presented was, to put it mildly, unsatisfactory, Judge Jacobs was prepared to accept that the rules did have a disproportionate impact on men and this finding was not appealed. (A similar approach was adopted in (2009) UKUT 43.) Status and justification It was, of course, accepted that gender fell within the scope of Article 14. Before the Upper Tribunal, it had been argued that being a substantial minority carer constituted a status for the purposes of Article 14. Judge Jacobs (at 15) said he would have been open to an argument that being a carer was a status but did not find it necessary to consider the issue. The Court of Appeal again distinguished between core or primary grounds (including gender) and secondary grounds, but pointed out that, in practice, the case law of the Court of Human Rights indicated that the fact that the discrimination is on the ground of sex does not appear of itself to require the court to apply a more intensive scrutiny (at para. 50). The court accepted that considerations of cost and administrative convenience could be relied on by way of justification (para. 51). The Court of Appeal did not consider the outcome to be determined by the decision in Hockenjos. While accepting that there were differences between EU and ECHR law, it did not see these as of great significance. However, unlike the situation complained of in Hockenjos, the Secretary of State (or his officials) had given careful consideration to the policy adopted; and there was a measure of Parliamentary endorsement (in that the policy had been explained to Parliament and the draft Regulations were before members when relevant amendments to the Bill were adopted) (paras 55 56). In addition, the Court emphasised that the CTC was a benefit of a different type to that at issue in Hockenjos, being focussed on the child (rather than the adult) and not being a subsistence benefit (para. 60). The Court, however, accepted that the issue which caused the Hockenjos court such concern still remained, that is, the consequence of the single payment rule is that, in the absence of agreement between carers, a minority carer in receipt of JSA has to look after the children without any additional funding for that purpose.... The Court unfortunately had very little evidence as to the scale of this problem. It, however, felt that the CTC rules

9 Journal of Social Welfare & Family Law 397 were less stark that those in Hockenjos in that they allowed the parents to agree as to responsibility. Overall the court accepted that the justification advanced by the Commissioners had substantial weight, referring in particular to the need to balance the interests of majority carers (who would be adversely affected by a change to split payments), the fact that the existing single payment delivered the intended amount of support to the children involved; and the fact that a change to the existing rules would be a difficult exercise involving significant costs and administrative complexity (para. 64). On balance, the Court accepted that there were cogent reasons for the maintenance of the single payment rule which were not outweighed by the adverse consequences to the minority carers (paras 65 66). Other decisions In Barber v. Secretary of State for Work and Pensions (2002) EWHC Admin 1915, the English High Court rejected a challenge to the UK child benefit rules under the ECHR. This decision was not referred to by the Court of Appeal in Humphreys, though it is mentioned by Judge Jacobs in the Upper Tribunal (at para. 36). In that case, the claimant father (who was separated from the mother and had a shared care arrangement) requested that the child benefit be shared. The UK legislation prioritised payment to the mother. The Court found that any discrimination in relation to payment of CB was objectively justified. The judge (at paras 43 44) stated that Child benefit is a universal non-means tested benefit claimed by about seven million families for about eleven million children. Though there are that high number of claimants, the payments themselves are relatively small. So the system must be kept simple and the costs of administering it must be kept low. So far these aims have been achieved. I am told that only 1.9% of the total sum involved goes to the cost of administration. If the payment for each child were to be split, the administration of such claims would become complex and expensive. I have no doubt that if split claims were to be allowed, there would be a proliferation of such claims and the corresponding increase in complexity and cost and an increase of payment accounts on an already overburdened computer system. I find that the present system works well and offers an efficient service at a relatively low cost. A cornerstone of that system is contained in s.144 of the Act whereby only one person is entitled to child benefit in respect of the same child. In my judgment there is no justification for a change in that system. The Defendant s policy is legitimate and proportionate. This case applied a rather low standard to the justification required and it is not clear that it should be followed. Canadian legislation provides a rebuttable presumption in favour of the mother in relation to payment of child tax benefit. The presumption that the mother is the primary caregiver can be rebutted by evidence that the father is, in fact, the caregiver and the presumption does not apply at all when the female parent advised the Minister in writing that the male parent is the primary caregiver nor, when competing claims are made, when the parents do not reside at the same location. This was challenged under the equality provisions (s.15) of the Canadian Charter of Rights which provide that Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. At first instance, the Tax Court of Canada in Campbell v. Canada (2004) TCC 460 held that there was a breach of the Charter and that decisions as to entitlement to benefit should be made on the basis of establishing the caregiver without any presumption. However, on

10 398 M. Cousins appeal, the Federal Court of Appeal in Canada (Attorney General) v. Campbell (2005) FCA 420 took a different approach, noting that the aim of the legislation was to support the child and the presumption allowed child benefit to be paid to the caregiver without the delay that would be caused by competing claims. It pointed out that statistically the number of fathers staying at home to care for children remained small and that the presumption reflected the factual situation. In addition, the court noted that the legislation did not exclude fathers who were in fact the primary caregiver. On balance, the court held that there was no breach of s.15. This case, which involved direct discrimination on gender grounds, provides some support for the outcome in Humphreys in that the Canadian court also felt that there was justification for a preferential treatment of mothers (albeit that the factual and legal contexts were different). It is interesting to note that in Canada where a child lives more or less equally with two separate individuals (whether four days with one, and thre days with the other, on a oneweek on, one-week off basis or some other similar rotation), and each is primarily responsible for the child s care and upbringing when the child resides with them, the Canada Revenue Agency (CRA) developed a shared eligibility policy under which it was decided to allow eligibility for child benefit to each individual on a six-month on, sixmonth off rotation: Discussion The decision of the House of Lords in RJM (and those of the Court of Human Rights in Stec and Carson (2009) 48 EHRR 41) have clarified both that most social security payments (including non-contributory benefits) fall within the material scope of P1-1 (thereby bringing Article 14 into play); and that a broad definition should be given to the concept of status under Article 14. The three recent decisions (discussed here) mark a major step forward compared to earlier decisions of the Court of Appeal such as Esfandiari (2005) EWCA Civ 282 (non-payment of funeral grant outside the UK does not have disproportionate impact on migrants) or RJM (2007) EWCA Civ 614 (homelessness not a status). Status In these cases, age (unsurprisingly) was accepted as a status. Other recent cases also show a broader approach to status as in R (on the application of) D & M v. Secretary of State for Work and Pensions (2010) EWCA Civ 18 and Secretary of State for Work and Pensions v. FS (2010) UKUT 18, where being a prisoner was also accepted as a status (on the basis of the Court of Human Rights decision in Shelley v. United Kingdom, 23800/06, 4 January 2008); pregnancy was accepted as a status in CM v. Secretary of State for Work and Pensions (2009) UKUT 43; while Judge Jacobs was prepared to accept that being a student was a status in (2009) UKUT 9. Ambit It is now routine that social security benefits are accepted as falling within the ambit of P1-1, and arguments concerning the ambit of Article 8 are perhaps less important. However, it is interesting to note the different conclusions arrived at in R (DLA) 1/09 and S.M. Fundamentally, one can only blame the Court of Human Rights for this lack of clarity as it has consistently failed to give any clear guidance as to the ambit of Article 8 as it concerns social security. It is, however, unfortunate that the Secretary of State should seek

11 Journal of Social Welfare & Family Law 399 to argue (and the Court to hold) that a disabled child does not have any personal autonomy that requires to be respected under Article 8 because his degree of disability means that he is entirely dependent on his parents. It is difficult to accept that a child even with the severe disabilities involved in this case should not have his personal autonomy recognised insofar as possible; and this argument harks back to now (hopefully) outdated views that disabled children were ineducable. Justification The broader scope of Article 14 challenges means that, in many cases, the critical issue is now the courts assessment of justification. Before turning to a discussion of how these courts performed this task, we make two preliminary comments. First, the House of Lords (now Supreme Court) has clearly created a two-tier standard of review. While one must accept that some grounds of discrimination (such as race) are more important than others and that this approach finds some support in the case law of the Court of Human Rights, the US experience would suggest that the creation of a dichotomous standard of suspect grounds on which differential treatment is rarely allowed and non-suspect grounds on which differential treatment can (almost) always be justified is not the best way forward if the Convention is to provide real protection for human rights (Baker 2008). Fortunately, there are some indications that the UK courts are adopting a more nuanced approach. In a recent case involving the treatment of convicted prisoners who are serving part of their sentences in psychiatric hospitals, Burnett J in R (on the application of) EM v. Secretary of State for Work and Pensions (2009) EWHC 454 (at para. 21) stated that Whilst justification in this area does not call for... very weighty reasons... in my judgment the weight of the justification needed in this context is more than the Strasbourg Court would look for in a case concerned with the payment of ordinary social welfare benefits. This statement appears to have received the approval of the Court of Appeal (or at least was not disapproved of): R (on the application of) D & M v. Secretary of State for Work and Pensions (2010) EWCA Civ 18. Second, two of the three courts here quoted the Stec comment (at para. 52) that the Court will generally respect the legislature s policy choice unless it is manifestly without reasonable foundation. As was pointed out by the Upper Tribunal in Humphreys, this comment was setting the standard for the international judge and it would be compatible with Stec for the national judge to decide the standard required for the UK. However, as both the Upper Tribunal and Court of Appeal noted, the House of Lords appears to have extended this approach to the national courts. Judge Jacobs pointed out that the House of Lords had refrained from going beyond the case law of the Court of Human Rights while the Court of Appeal stated that the same approach is applied by the national court (at para. 49). Nonetheless, in practice, two of the three courts applied a reasonably rigorous standard to their review. In fact, it is almost impossible to see the challenge to the lower age limit for mobility component being successful no matter what level of scrutiny was applied. It is difficult to see any court deciding that it could or should interfere with a decision made on the basis of expert advice and deciding that two rather than three years of age was the appropriate cut-off. In Humphreys, as the Court of Appeal pointed out, the issues were more finely balanced. However, on the evidence as presented, the court arguably came to the correct decision. The policy clearly pursues legitimate aims and there is an absence of concrete

12 400 M. Cousins evidence that there was not a reasonable relationship of proportionality between the aims and means. Only in R (DLA) 1/09 was there inadequate consideration of justification. The justification advanced by the Secretary of State (at least as outlined in the decision) was thin and the evidence supporting it even weaker. A desire to provide more support to working age persons cannot in itself provide justification since this is just a restatement of a desire to discriminate against older people. There needs to be some rationale for such a policy for it to be legitimate. The argument as to the interlocking nature of benefits was largely irrelevant given that DLA is not an income support payment (unlike State pension). The Upper Tribunal should have asked whether persons disabled at a younger age have greater needs (or whether some other legitimate justification existed) and, if so, whether establishing a cut-off point at 65 was a proportionate manner of achieving such a legitimate objective. Overall, the three decisions do mark an important improvement on earlier decisions of the Court of Appeal. However, given the emphasis of the Supreme Court on both a two-tier approach to justification and the apparent application of the Stec manifestly without reasonable foundation approach to the national courts, they provide little indication that human rights challenges are likely to see much success before the UK courts. It is noteworthy that all recent Article 14 cases concerning social security benefits appear to have been unsuccessful. References Baker, A., Proportional, not strict, scrutiny: against a U.S. suspect classifications model under Article 14 ECHR in the UK. American journal of comparative law, 56 (4), White Paper, The way ahead: benefits for disabled people (Cm 917).