Secretary of State for Work & Pensions v M

I have asked Lord Justice Sedley to deliver the first judgment.

Since we heard submissions in relation to these appeals we have received from the solicitors acting for the appellant in the second case a request that her name be given in full. Thus far she has been referred to only as L. We accede to that request.

M is a mother of two children. They live with their father but she shares with him the responsibility for their maintenance. She herself has since 1998 lived in a same-sex relationship, pooling incomes and sharing outgoings with her partner.

Ms. Langley is a woman who, following the break-up of a relationship with a man, remained in what had been their shared home and paid rent to him.

M’s case arises out of the calculation of her child support liability. Ms. Langley’s case arises out of her claim for housing benefit. Because they raised related issues they were heard together by Mr Commissioner Jacobs. His decision against Ms. Langley, upholding that of the Leeds appeal tribunal, was given on 22 September 2003. His decision in favour of M, upholding that of the Middlesbrough appeal tribunal, was given on 1 October 2003.

In M’s case the issue is this: because the prescribed criteria for reducing the liability of absent parents for child maintenance on account of their current housing costs are confined to members of heterosexual couples, her liability is greater than if she were now living in a heterosexual relationship. She has successfully sought resolution of the issue under the Human Rights Act 1998 by having the material regulations treated as applying to her (and by logical extension to members of other same-sex partnerships) as they do to members of heterosexual partnerships and marriages.

In Ms. Langley’s case the issue is this: the local authority has decided that she is not entitled to housing benefit because she is paying rent to a former cohabiting partner of the opposite sex when she would not be disentitled to benefit had it been a same-sex relationship. In this argument she has failed before the Commissioner on the ground that she cannot show herself and her chosen comparator to be in a relevantly similar situation.

It is helpful that we have both cases before us, not only because they raise a common issue from widely divergent standpoints but because the reasoning in the one case offers certain challenges to the reasoning in the other.

'unmarried couple' means a man and a woman who are not married to each other but are living together as husband and wife …"

Sedley LJ has fully set out the factual, legal and Convention background to these two appeals in the first part of his judgment, and it is therefore unnecessary for me to repeat what he has said.

Ms Monaghan advanced four different routes through which M is said to be within the ambit of a Convention right, thereby enabling her to contend that Article 14 is engaged. I do not consider that M can succeed on two of those routes, but I have come to the conclusion that she succeeds on the two other routes.

First, she contended that M’s statutory obligation under the MASC regulations and the 1991 Act to pay child support for the benefit of her child from whom she is absent must have been intended by the UK government to promote family life, thereby rendering her case equivalent to that of the successful applicant in Petrovic -v- Austria (2001) 33 EHRR 307.

There is force in the point that, if the grant of parental leave allowance (as in Petrovic) is within the ambit of Article 8, then the payment of child support maintenance should also be within the ambit of the Article. It can make no difference, in my view, that child support is payable by a parent for the benefit of his or her child, whereas parental leave allowance is paid by the state to a parent: they are both payable pursuant to a decision of the legislature. Although child support is simply a payment made by a parent to a child, with whom the parent may have no other contact, it is nonetheless, attributable to, and therefore based on, respect for the existence of a family relationship. Support for that point may also be found in the view of the European Commission (and the UK’s submission) in Logan -v- United Kingdom (Application 24875/94: September 1996).

However, even accepting, as I do, that the child support legislation is within the ambit of Article 8, Ms Monaghan cannot, in my view, thereby justify the contention that Article 14 is engaged in M’s case. It seems to me that there is no correlation between the basis on which the child support scheme engages Article 8 and the nature of the discrimination complained of by M. The relevant respect for family life within the ambit of Article 8 would be in connection with the relationship between the child and the absent parent, whereas M’s Article 14 complaint has nothing to do with that relationship, but is concerned with the relationship between the absent parent and her partner, a wholly different unit.

It has been said that, in order to claim that Article 14 is engaged, the claimant need establish only “a tenuous link” with another Convention right, although that proposition is open to doubt: see the brief discussion in paragraph 11 of the speech of Lord Nicholls of Birkenhead in Ghaidan -v- Godwin-Mendoza [2004] 3 WLR 113. However, even assuming that a tenuous link will suffice, it appears to me that, however one might characterise the link between the child support scheme and Article 8, it is simply not a relevant link for the purpose of M’s complaint, which concerns the impact of the relevant legislation on her relationship with someone who is outside the relevant family unit.

The second route by which Ms Monaghan sought to bring M’s claim within the ambit of Article 8 is on the basis of respect for private life.

The only case to which we were referred in this connection was the decision of the ECtHR in Lustig-Prean & Beckett -v- United Kingdom (1999) 29 EHRR 548, where it was held that, by inquiring into a sailor’s sexual orientation in order to take disciplinary or dismissal steps against him, the Royal Navy interfered with his or her right to respect for private life. In that case, as Sedley LJ has pointed out, the very act in issue invaded a Convention right. However, in the present case, there is a complaint of discrimination between persons in same-sex relationships and those in heterosexual relationships, but it cannot be said that of itself gives rise to a claim for unlawful interference with respect to private life. If there is any interference with private life, it is justifiable on the basis that the relevant provisions of the child support scheme could be said to require a degree of intrusion into the absent parent’s private life, in the sense that she may have to reveal that she is involved with someone in a sexual relationship. However, I do not think it could be suggested that this intrusion represented a lack of respect for private life. Indeed, it could be said that there is no intrusion into M’s private life in this connection, because she does not have to reveal whether she is in a relationship with her partner, because she would not be entitled to benefit from Regulation 15(3) of the MASC Regulations if it does not apply to someone in a same-sex relationship.

I turn to the third route, namely the contention that M’s claim falls within the ambit of Article 1 of the First Protocol to the Convention (“Article 1P1”). In this connection, I have been much assisted by the observations of Laws LJ in R (on the application of Carson) -v- Secretary of State for Work and Pensions [2003] 3 All ER 577 at paragraphs 37-49. Although he felt “a good deal of unease” about the reasoning of some of the ECtHR cases (paragraph 39) he was nonetheless satisfied that the Court of Appeal should follow and apply that reasoning (paragraph 41). He then went on to summarise the law in relation to the facts of that case in the following terms:

“47.

[T]he law of the Convention is settled on this point as to the scope of ‘possessions’ for the purposes of [Article 1P1]. The policy of the cases is, I think, that while states are in general free to grant, amend or discontinue social security benefits and to change the conditions of entitlement to them as they please without any Convention restraint, yet where contributions are exacted as a price of entitlement the contributor should be afforded a measure of protection: it has, so to speak, cost him something to acquire the benefit.

48.

This approach throws much needed light on the scope of Art. 14 read with [Article 1P1] …. We can now see that the Strasbourg court has treated the payment of contributions as giving rise to a species of pecuniary right, such as to constitute a ‘possession’ for the purposes of [Article 1P1]. A reduction or qualification of the right to be paid for benefit thus engages [Article 1P1] although it may not amount to a violation of the article simpliciter because the Convention confers no right to receive any particular amount. However, the reduction or qualification is subject to the constraints of Art. 14: if it is done on discriminatory grounds, the discrimination must be justified.”

If the existence or absence of a right to a social security benefit, provided that it is subject to a requirement for contributions, is sufficiently within the ambit of Article 1P1 for the purposes of Article 14, I find it hard to see why M should not be able to invoke Article 1P1 in the present case for the purpose of giving rise to an allegation of discrimination under Article 14. Like the claimant in Carson (and in the ECtHR cases considered by Laws LJ), M does not seek to allege an actual infringement of her rights under Article 1P1. What she does allege is that a “possession” which would otherwise be her own unfettered asset, namely money, is being taken away from her by legislation, as a result of which she is worse off than a person in a position identical in all respects to hers save for sexual orientation. It seems to me that the present case can therefore be said to be a fortiori that in Carson, because at least one of the difficulties identified by Laws LJ in that case (namely the absence of any “possession” of which the claimant there was being deprived: see for instance paragraphs 43 and 44) does not arise.

It can be said in the present case that the effect of the child support legislation is merely to allocate assets as between individuals. That does not impress me as a distinction which justifies a different conclusion from that which I would otherwise have reached. Article 1P1 comes into play just as much where legislation involves a transfer of assets from one individual to another as it does where the transfer is from the individual to the state: see for instance James -v- United Kingdom (1986) 8 EHRR 123. As I have sought to emphasise, this is not a case where M is contending that the terms of the child support scheme in any way contravene her rights under Article 1P1: she is merely invoking Article 1P1 as the relevant Convention right upon which her allegation of discrimination under Article 14 is founded.

In reaching this conclusion, I have not disregarded the view expressed by the European Commission on pps 6 and 7 as to the admissibility of the claim in Burrows -v- United Kingdom (Application No 27558/95) where the applicant was seeking to maintain an allegation of discrimination under Article 14, based on Article 1P1, in relation to his liability for child support. In particular, the Commission said that Article 1P1 was:

“primarily concerned with the formal expropriation of assets for a public purpose, and not with the regulation of rights between persons under private law unless the State lays hands - or authorises a third party to lay hands - on a particular piece of property for a purpose which is to serve the public interest.”

In the first place, I note that the words in parentheses acknowledge that Article 1P1 is not excluded simply because the assets are transferred to another individual rather than to the state. Secondly, particularly in light of the reasoning of, and the ECtHR’s cases cited by, Laws LJ in Carson, I find it difficult to accept the doubts expressed in the passage I have quoted if money is not included in the expression “a particular piece of property”. Thirdly, the Commission cannot have been saying that Article 1P1 cannot be engaged unless the transfer of property effected by the legislation complained of was intended “to serve the public interest”: the logical corollary would be that, if the state deprived an individual of his property for a reason which could not be said to involve the public interest, the individual concerned could not invoke Article 1P1, whereas I would have thought that that would be an almost paradigm case for invoking the Article.

I turn to Ms Monaghan’s final route, namely the impact of the legislation on the relationship between M and her present partner. On behalf of the Secretary of State, Mr Sales contended that the reference “family life” in Article 8 cannot, on the jurisprudence of the ECtHR, apply to a same-sex relationship. He made this contention good by reference to the decision in Estevez -v- Spain (Application 56501/00: 10^th May 2001) where, in paragraph 14 of its decision, the ECtHR said this:

“[T]he court reiterates that, according to the established case law of the Convention institutions, long-term homosexual relationships between two men do not fall within the scope of the right to respect for family life protected by Article 8 of the Convention …. The court considers that, despite the growing tendency in a number of European states toward the legal and judicial recognition of stable de facto partnerships between homosexuals, this is, given the existence of little common ground between the contracting states, an area in which they still enjoy a wide margin of appreciation …..”

In my judgment, there is no decision of the ECtHR subsequent to Estevez which calls these observations into question. In particular, I do not consider that the decision in Karner -v- Austria (2003) 14 BHRC 674 assists M. In Karner, the applicant made good his Article 14 compliant, on the basis that Article 8 was engaged, where the law refused him the right to succeed to the tenancy of a deceased tenant, of whom he had been long-term same-sex partner, in circumstances where he would have been entitled to succeed had the relationship been heterosexual. However, it appears to me that the crucial point was that his claim was within the ambit of Article 8, not because of any connection with respect for private life or for family life, but because of its connection with respect for the home. To my mind, that is clear from what the ECtHR said at paragraph 33:

“The court does not find it necessary to determine the notions of ‘private life’ or ‘family life’ because, in any event, the applicant’s complaint relates to the manner in which the alleged difference in treatment adversely affects the enjoyment of his right to respect for his home guaranteed under Art 8 of the Convention ….”

Similarly, I do not consider that the decision in Salgueiro -v- Portugal (2001) 31 EHRR 47 is inconsistent with what was said in Estevez. The ECtHR was there concerned with an alleged infringement of Article 14 based upon the applicant’s sexual orientation, and the claim was based on the contention that it was within the ambit of Article 8. The reason that the claim was within the ambit of that Article was because it concerned the decision of the Lisbon court to grant custody of the applicant’s daughter to his former wife, rather than to himself, because of his sexual orientation. Accordingly, it was not a decision which suggests that “family life” in Article 8 should be extended by the ECtHR to stable same-sex relationships. The family life in question arose out of the relationship between the applicant and his daughter.

The recent decision of the House of Lords in Ghaidan to which I have referred does not cause me to doubt this conclusion. In that case, the relevant statutory provisions in the Rent Act 1977 permitted a widow or widower to succeed to the deceased’s statutory tenancy. Owing to the impact of the Convention, this was construed as applying to the survivor of a same-sex relationship. It appears to me that the reasoning in that case as to why Article 14 was engaged was substantially the same as the reason given by the ECtHR for concluding that Article 14 was engaged in Karner, namely because the relevant benefit was within the ambit of Article 8, involving as it did, respect for a person’s home.

There is no doubt that, once a complaint can be brought within the ambit of Article 8, because it can be said to involve respect for the home, as in Karner or Ghaidan, the ECtHR will accept that Article 14 will be engaged, at least potentially, if the applicant can establish that, as a person involved in a long-term same-sex relationship, he or she may be treated less well than if involved in a heterosexual relationship: see paragraphs 37 and 40 in Karner and paragraphs 17 and 18 in Ghaidan. However, the essential point is that the observations in those paragraphs apply only once the applicant establishes that his claim is within the ambit of a Convention right.

Nonetheless, that is not the end of Ms Monaghan’s argument on her final route. In a sense, it is only the beginning. She contended alternatively that, even if the ECtHR has not extended the respect for family life in Article 8 to same-sex relationships, the English courts should do so. She pointed out that in Estevez itself the ECtHR recognised that there is a growing tendency in many member states to grant equal recognition to stable same-sex partnerships, and that the court went on to hold that, because there is not a consistent approach throughout all member states, it is an area in which individual states “still enjoy a wide margin of appreciation” (see the passage quoted above from paragraph 14 of the judgment in Estevez).

In my judgment, both principle and the authorities establish that, given that the ECtHR has concluded that the question of whether two persons involved in a loving permanent same-sex relationship are members of the same family for the purposes of Article 8 is within the margin of appreciation, it is open to the UK to decide whether such a relationship is, for the purpose of the UK, within the concept of family life. In other words, it is not open to this court to shelter behind the margin of appreciation. This point was made by Lord Hope of Craighead in R -v- DPP ex p Kebilene [2000] 2 AC 326 at 380G-381A:

“This doctrine [sc. of the margin of appreciation] is an integral part of the supervisory jurisdiction which is exercised over state conduct by the international court. By conceding a margin of appreciation to each national system, the court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states, but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.” (emphasis added).

Lord Hope went on to say this at 381A-B:

“In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the court to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention.”

Observations to much the same effect were made by Lord Bingham of Cornhill and Lord Steyn in Brown –v- Stott [2003] 1AC 681 at 703 and 842 respectively.

Nonetheless, where one is within the margin of appreciation, the courts should be careful not to put themselves in the place of the legislature or the executive; there is a requirement for an appropriate degree of judicial self restraint - see per Laws LJ in R (Mahmood) -v- Secretary of State [2001] 1 WLR 840 at paragraph 33, where the Court of Appeal was concerned with a challenge to a decision of the Secretary of State rather than to legislation. In that connection, Lord Phillips of Worth Matravers, MR, at paragraph 40, emphasised the requirement for the application of “an objective test” by the court.

Those observations were considered by Lord Steyn in R (Daly) -v- Secretary of State ex p Adan [2001] 2 AC at paragraphs 25-28, where he approved the “general tenor” of the observations of the Court of Appeal in Mahmood. In paragraph 27 he suggested that there was a difference, albeit also “an overlap”, between “the traditional grounds of judicial review and the approach of proportionality”, and he went on to say that “the intensity of review is somewhat greater under the proportionality approach”.

On behalf of the Secretary of State, Mr Philip Sales contended that, on a proper application of the margin of appreciation accorded to the English courts by the ECtHR in this connection, M cannot succeed in her claim based on Article 14, even though the basis on which her liability for child support is assessed results in her being less favourably treated than if she were in a heterosexual relationship. First, he argued that a same sex relationship should not be treated by this court as giving rise to a family relationship within Article 8. Secondly, he argued that, in light of the nature of M’s complaint, there is, in any event, no sufficient link between M’s claim and Article 8.

So far as Mr Sales’s first argument is concerned, I have reached the conclusion that, in light of the margin of appreciation accorded by the ECtHR, a stable, same-sex relationship between two persons living together should, at least in most contexts, in this country in 2004, be treated as a family relationship, and therefore in principle within the ambit of Article 8. I believe that considerable support for this view is to be found in the decision and reasoning of the majority of the House of Lords in Fitzpatrick -v- Sterling Housing Association [2001] 1 AC 27. In that case the House of Lords held (Lord Hutton and Lord Hobhouse of Woodborough dissenting) that, in the context of the provisions relating to succession to regulated tenancies in Schedule 1 to the Rent Act 1977, a person, who had been in a stable same-sex relationship, and had been living with the deceased tenant at his death, was entitled to succeed to the tenancy on the basis that he or she was a member of the tenant’s “family”, as a matter of the ordinary construction of the Act, without the need (or the right ) to have recourse to the Convention.

At 44A, Lord Nicholls said:

“The question calling for a decision in the present case is a question of statutory interpretation. It is whether a same sex partner is capable of being a member of the other partner’s family for the purposes of the Rent Act legislation. I am in no doubt that this question should be answered affirmatively. A man and a woman living together in a stable and permanent relationship are capable of being members of a family for this purpose. Once this is accepted, there can be no rational or other basis on which the like conclusion can be withheld from a similarly stable and permanent sexual relationship between two men or between two women.”

At 44C, Lord Nicholls referred to “the intimate mutual love and affection and long term commitment that typically characterise the relationship of husband and wife” and continued:

“This love and affection and commitment can exist in same sex relationships as in heterosexual relationships. In sexual terms a homosexual relationship is different from a heterosexual relationship, but I am unable to see that the difference is material for present purposes. As already emphasised, the concept underlying membership of family for present purposes is sharing lives together in a single family unit living in one house.”

Lord Slynn of Hadley took the same view, although he pointed out that the ECtHR “has not so far accepted claims by same-sex partners to family rights”, making reference to the fact that “attitudes may change as to what is acceptable throughout Europe”: see at 40A-B. Lord Clyde said at 48D-E that the meaning of “family” must inevitably depend to some extent upon its context. However, at 52C-D, he said this:

“[I]t is interesting to note the use of the word ‘family’ in the judgment of Singer J In re W (a minor) (Adoption: homosexual adopter) [1998] Fam 58, 59, where he said in relation to the placement of the child whose adoption was in dispute: “The family in question comprises two women living together in a lesbian relationship’. He there recognises the couple as constituting a family. That language seems to me to reflect what is now an ordinary usage.”

While the reasoning and conclusion of the majority in Fitzpatrick were obviously directed to the meaning of “family” in Schedule 1 to the Rent Act 1977, it does appear to me that the observations which I have quoted from the speeches of Lord Nicholls and Lord Clyde are of wide application, and represent the approach of the courts, and, indeed, of the majority of the population, of this country, more generally. That approach is that, if, in a particular statute or other document, the relationship between persons of different sexes would result in each of them being a member of the other’s family, then the same result would obtain in a case where the facts were identical save that the relationship was between persons of the same sex.

My view is reinforced by what was said by the House of Lords in the later case of Ghaidan. Thus Lord Nicholls said this:

“17.

… a homosexual couple, as much as a heterosexual couple, share each other’s life and make their home together. They have an equivalent relationship. There is no other rational or fair ground for distinguishing the one couple from the other in this context ….

18.

This being so, one looks in vain to find justification for the different treatment of homosexual or heterosexual couples.”

Baroness Hale of Richmond said this:

“142.

… Homosexual couples can have exactly the same sort of inter-dependent couple relationship as heterosexuals can. …

143.

It follows that a homosexual couple whose relationship is marriage-like in the same ways that an unmarried heterosexual couple’s relationship is marriage-like are indeed in an analogous situation. Any difference in treatment is based on their sexual orientation. …

144.

I have used the term ‘marriage-like’ to describe the sort of relationship which meets the statutory test of living together ‘as husband and wife’. Once upon a time it might have been difficult to apply those words to a same sex relationship because both in law and in reality the roles of the husband and wife were so different and those differences were defined by their genders. That is no longer the case.”

Lord Steyn and Lord Rodger of Eastferry also agreed with both Lord Nicholls and Baroness Hale (see paragraphs 37 and 103).

Furthermore, although, as I have mentioned, I do not accept that the ECtHR in Karner resiled from, or went further than, the court had gone in Estevez, it did make observations which can be invoked to support the proposition that, at any rate if in doubt, a national court should lean in favour of treating as a family relationship a same sex relationship which, if it were heterosexual, would be a family relationship - see paragraphs 37, 40 and 41.

I have expressed that conclusion in pretty broad terms, although the observations in Kebilene, Mahmood and Daly, and indeed general principle, might fairly be said to suggest that one should normally approach such a question on a case by case basis. However, I find it very difficult to see how it is possible to decide the present case without determining whether for Article 8 purposes, at least in general, two persons in a same sex relationship should be treated as members of each other’s family where, if they were of opposite sexes, they would be members of each other’s family. As I see it, respect for the family under Article 8 in this country should either extend to such relationships or it should not. While I suppose that there could be an exceptional case, it appears to me very hard to justify as a matter of logic treating same sex relationships within Article 8 for some purposes and not for others. Further, such an approach would be very unlikely to result in a coherent series of decisions. The fact that, in some cases, discrimination against same sex relationships could be justified in no way impinges on the argument, because, if the discrimination is justified, it would not infringe Article 14 in any event.

Accordingly, I would reject Mr Sales’s first argument. If M can otherwise bring herself within the ambit of Article 8, I do not consider that the fact that she is in a same sex relationship rather than a heterosexual relationship takes her outside Article 8. In my judgment, the margin of appreciation accorded to this court by the ECtHR coupled with the reasoning of the House of Lords in Fitzpatrick and Ghaidan should result, at least in general, in same-sex relationships being treated in precisely the same way as heterosexual relationships for the purpose of Article 8. Given that Mr Sales has, quite understandably, not advanced any justification (other than the need for time to change the law) for absent parents in a same sex relationship being treated differently from absent parents in a heterosexual relationship, his only remaining ground is that the difference in treatment between absent parents in a same sex relationship and absent parents in a heterosexual relationship so far as the assessment of child support is concerned does not fall within the ambit of Article 8 at all.

Where a claim for discrimination is based on a difference in treatment in connection with liability for payment of, or with entitlement to receive, money, I think it is important to bear in mind the observations of Laws LJ in Carson at paragraph 28:

“In the present case I am clear that the provision of the Job Seeker’s Allowance and Income Support has not been made by the United Kingdom legislature and executive out of compliance with any actual or perceived positive obligation arising under Art. 8. Such positive obligations may arise where there is ‘a direct and immediate link between the measures sought by an applicant and the latter’s private and/or family life’ …. Recognised instances include circumstances where the criminal law is required to offer protection for family life against particular dangers …. But they cannot, in my judgment, extend to include whole swathes of a state’s social security system without embracing that system with the general duty vouchsafed for Art. 8.”

In my judgment, however, in the present case these observations do not preclude M from succeeding on her Article 14 claim. The reason that the absent parent’s liability for child support is liable to be reduced by regulation 11 of the MASC Regulations was accurately summarised in this case by the Commissioner:

“Its purpose is, put crudely, to ensure that the [absent] parent’s family has enough to live on after child support maintenance has been paid. It operates as a kind of longstop to the formula. Its application is more favourable for a parent who is a member of a family.”

In those circumstances, it appears to me to follow that the reduction in liability effected by regulation 11 is accorded for the purpose of ensuring that that absent parent’s new family is not so deprived of money that it is significantly detrimentally affected by the liability of the absent parent to pay child support. To my mind, it follows from this that M has made good her case that the relevant provision, of which she does not have the benefit because she is in a same sex, rather than a heterosexual, relationship, was enacted out of respect for family life, the family life in question being that of the absent parent and his/her new partner

As to the remainder of the issues in M’s case, namely material difference in treatment, justification and remedies, I agree with the reasoning of Sedley LJ. However, I would like to add a little to what he has said on two points. First, there is the question of material difference in treatment. In that connection, Mr Sales relied on the reasoning in R (Purja and Others) -v- Ministry of Defence [2004] 1 WLR 289. In that case, the Court of Appeal held that a claim under Article 14 by former Gurkha soldiers failed, on the grounds that there was no true analogy between them and their chosen comparators, namely former British soldiers: see paragraph 60-65 per Simon Brown LJ and paragraphs 85 and 86 per Chadwick LJ.

The retired Gurkha soldiers were complaining of discrimination on the basis that their pay and pension rights were substantially less beneficial than those of retired British soldiers. The Court of Appeal held that the characteristics of the two classes of soldiers were different in a number of respects, perhaps particularly the long periods of leave accorded to Gurkha soldiers but not British soldiers (see paragraph 62 of Simon Brown LJ’s judgment) so that the two classes were not properly comparable. Mr Sales argued that the discrimination complained of by M in relation to two aspects of the child support scheme is merely reflective of the fact that an absent parent in a same-sex relationship is treated differently under the child support scheme from an absent parent in a heterosexual relationship, so that, as in Purja, the two types of absent parent are not in the same category. Mr Sales also draws support from the reasoning in Wandsworth LBC -v- Michalak [2003] 1 WLR 617, where, at paragraphs 26-39, Brooke LJ concluded that secure tenants under the Housing Act 1985 could not invoke regulated tenants under the Rent Act 1977 as being proper comparators, and therefore as justifying a claim for discrimination under Article 14 on the grounds that surviving family members of secure tenants enjoyed less favourable succession than those of regulated tenants.

In my judgment this argument effectively overlooks the nature of the complaint made by M in this case. Her argument, as advanced by Ms Monaghan, is not merely that an absent parent in a same-sex relationship should be treated the same as an absent parent in a heterosexual relationship in relation only to the two specific matters of which she complains under the child support scheme. Her contention is that the two classes of absent parent should be treated in exactly the same way, i.e. as having exactly the same rights and obligations, under all aspects of the child support scheme. Accordingly this is not a case where it is possible for the Secretary of State to invoke differences of treatment between the two classes under the child support scheme, other than the two differences of which specific complaint is made, because M contends that there should be no difference in treatment in any respect. In Purja and in Michalak the applicant did not argue that there should be no difference in treatment in any respect between, respectively, the employment terms of Gurkha soldiers and British soldiers, or between secure tenants and regulated tenants.

As Ms Monaghan argued, this is not a case, unlike Purja or Michalak where it can be said that there are two separate schemes each of which has its own somewhat different sets of benefits and burdens. Further, this case involves discrimination of grounds of sexual orientation which is a type of discrimination (like that on grounds of race or gender or sex) where “the court will scrutinise intensely any reasons said to constitute justification” - per Lord Nicholls in Ghaidan at paragraph 19.

The second point on which I would wish to add to what has been said by Sedley LJ is on the issue of the relief to be accorded to M. The effect of our conclusion is that, for the purpose of the secondary legislation relating to child support, an absent parent living in a same-sex relationship is to be treated, at least for purposes such as those in the present case, identically to an absent parent living in a heterosexual relationship. That appears to me to be a result which must logically follow from our reasoning, and, as was pointed out in argument, it will not redound to the benefit of every absent parent in a same-sex relationship.

While this result is logical, and appears to be fair (once one accepts the premise, namely that there would otherwise be discrimination which falls foul of Article 14), I am concerned about the fact that it could be said indirectly to involve the court effectively rewriting, albeit only with regard to one specific aspect, the MASC Regulations. It appears to me that that is a course which the court should be very cautious about taking, even if satisfied, as in this case, that it is the only logically respectable way of giving effect to the Convention, the only alternative being to leave it to the legislature to sort out the problem.

Nonetheless, with all the legal, technical and practical expertise and experience available to those instructing him, Mr Sales was not able to identify any problem which might arise as a result of this conclusion. Furthermore, having considered the MASC regulations, it does not strike me that it would be at all likely that the remedy which Sedley LJ has identified, and with which I agree, would be likely to wreak any unfairness or difficulty in practice, and that it is therefore justifiable to accord the remedy which he has identified.

I agree with Sedley LJ, for the short reasons he gives, that the basis upon which the Commissioner decided against Ms Langley, namely the absence of any material similarity between her case and that of a similarly placed tenant whose former partner was of the same sex, cannot stand.

However, I consider that Ms Langley nonetheless faces difficulties in establishing that she has a maintainable claim for infringement of Article 14. As already mentioned, a claim under Article 14 is not freestanding, and must be in some way linked to another freestanding Convention right. Her case in this connection is put on the basis of Article 1P1 or Article 8.

The reliance placed by Mr Drabble, who appeared on behalf of Ms Langley, on Article 8, that appears to be arguable. Particularly in light of the reasoning in the judgment of Scott Baker LJ in Douglas -v- North Tyneside MBC [2003] EWCA Civ 1847 (especially at paragraph 56) that is a point which I would prefer to keep open, unless it were necessary to decide it, which I do not believe that it is.

Assuming that Ms Langley is able to establish that Article 14 is infringed, because regulation 7(1)(c)(i) of the Housing Benefit (General) Regulations 1987 could not have been invoked against her if her former partner had been a woman, I am of the view that it would have been inappropriate to have granted her any relief. I reach that conclusion in light of the decision and reasoning of this court in R (Hooper) -v- Secretary of State for Work and Pensions [2003] 1 WLR 2623, especially at paragraphs 160-163 (which in fact relate to one of the other appeals heard at the same time, namely R (Naylor) -v- Secretary of State).

In that case, Mr Naylor’s complaint was that he was not entitled to a pension until he reached the age of 65, whereas, on otherwise precisely the same facts, had he been a woman, he would have been entitled to a pension from the age of 45. The Court of Appeal accepted that this represented discrimination of which he could properly complain pursuant to Article 14 (see paragraph 69) and that there was power to award him damages for any loss he suffered as a result of such discrimination (see paragraph 143).

However, he was refused compensation. The Court of Appeal said this:

“162.

… The fact that widows over 45 enjoyed a right to a pension until reaching the age of 65 was recognised an anomaly. Parliament decided to allow a transitional period until 9 April 2001 before bringing in the new regime …, but it does not follow from this that there was any justification for making equivalent payments to widowers. To have done so would merely have increased the size of those to whom anomalous payments were being made. This would not have achieved any legitimate aim.

163.

For these reasons we do not consider that the principle of just satisfaction entitles Mr Naylor to extra-statutory payments equivalent to a widow’s pension ….”

It seems to me that the facts of the present case equally demonstrate that, even if Ms Langley has a legitimate complaint of infringement of her Article 14 rights, she should receive no compensation. If Article 14 did apply, the court would have to decide whether the anomaly was that same-sex relationships fell outside the ambit of regulation 7(1)(c)(i), as the Secretary of State would contend, or whether, as Ms Langley would argue, the anomaly is that heterosexual relationships fall within it. In my judgment, that question could only be resolved one way. Quite apart from anything else, if Ms Langley’s contention were correct, it would in practice mean that regulation 7(1)(c)(i) was of no effect: it does not apply to same-sex relations, and in the case of every heterosexual relationship, anyone to whom it applied would be entitled to recover full compensation for having so applied. In other words, it would effectively be a dead letter.

Once one concludes that any infringement of Article 14 would have arisen because the regulation did not extend to same-sex relationships, the basis for any party to a heterosexual relationship claiming compensation falls away. The proper complaint is that the regulation does not apply to same-sex relationships, not that it does apply to heterosexual relationships.

In fact, although the point was only briefly touched on, it seems to me that a rather more elegant way of arriving at the conclusion that Ms Langley would not in any event be entitled to any remedy may well be that she could not in any event complain of an infringement of Article 14 for the reason given by Sedley LJ, namely that she cannot claim to be the “victim of [an] unlawful act” with s 7(1) of the 1998 Act.

In the event, therefore, I would dismiss both appeals.

In 2001 M was a mother living in a same sex relationship with another woman. Her two children lived with their father. Under the Child Support Scheme she was required to make payments for the maintenance of her children. The amount she had to pay was calculated according to a statutory formula set out in Regulations made under the empowering provisions of Schedule 1 of the Child Support Act 1991. Those regulations were the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 SI 1815, for present purposes the MASC Regulations.

The first step in the procedure required by the regulations was to determine assessable income, that is to say net income less exempt income. Certain housing costs were treated as exempt income. The Schedule to the 1991 Act enabled the regulations to make special provision for absent parents “living together in the same household with another adult of the opposite sex” and the regulations did so. By defining “unmarried couple” as “a man and a woman who are not married to each other but are living together as husband and wife” (a definition also used in section 137 of the Social Security Contributions and Benefits Act 1992) the regulations were made to operate to the disadvantage of an absent parent living with a partner of the same sex, as compared with an absent parent living with a partner of the opposite sex. That disadvantage operated both in the calculation of assessable income and in the calculation of exempt income. For present purposes the detail does not matter. It is not in dispute.

Before the Commissioner counsel for M submitted that although the disparity to which I have just referred did not amount to a breach of Article 8 of the European Convention on Human Rights it did come within the ambit of Article 8, and within the ambit of Article 1 of Protocol One to the extent necessary to enable M to rely upon Article 14. The Commissioner accepted that submission only in relation to Article 8, and on behalf of the Secretary of State it is now contended that he was wrong to do so. For M Ms Monaghan contends that the Commissioner should have also have accepted the submission in relation to Article 1 of Protocol One.

Article 8(1) states that -

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

The Commissioner held, at paragraph 41 of his decision, that a same-sex relationship is capable of falling within the meaning of “family” for the purposes of Article 8. Ms Monaghan, whilst seeking to uphold the Commissioner, submits that if he was mistaken as to family then he should have considered “family life” or the ambit of Article 1 Protocol One.

Mr Sales, for the Secretary of State, submits that the European Court has constantly declined to hold that same sex partners fall within the scope of family life, and that the Commissioner failed to give sufficient weight to this line of authority which has been recognised by the House of Lords, and which still exists.

Logan v UK [1996] 22 EHRR CD 178 was a father’s challenge to the level of maintenance payments determined by the Child Support Agency, which was held by the European Commission to be inadmissible. As Ms Monaghan points out, it was part of the government’s case that the CSA is intended to protect family life, and the Commission was considering the direct application of Article 8 rather than its ambit, but its conclusion at CD 181 was quite clear, namely -

“that the relevant legislation, in so far as it seeks to regulate the assessment of maintenance payments from absent parents, does not by its very nature affect family life.”

In Burrows v UK application No. 27558/95 a separated father complained of the sudden increase in the amount he was required to pay by way of maintenance, which, he said, impacted upon his second family and was discriminatory, contrary to Article 14. The Commission referred to its decision in Logan and continued -

“In the light of the factual information provided by the applicant regarding his income and his expenses, the Commission does not consider that the applicant has shown that the effect of the operation of the legislation in his case is of such a nature and degree as to disclose any lack of respect for his rights under Article 8.”

Petrovic v Austria [2001] 33 EHRR 307 is a decision of the European Court concerning a father’s right to parental leave allowance, and it is a decision on which Miss Monaghan places some reliance. The applicant sought to rely on Article 14 taken together with Article 8, and at paragraph 26 the court accepted that the refusal to pay the allowance could not amount to a failure to respect family life since that Article did not impose any positive obligation on States to provide the financial assistance in question. Nonetheless it was said, at paragraph 29, that by granting parental leave allowance “States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision. It follows that Article 14 - taken together with Article 8 - is applicable.” But of course the relationship in Petrovic was heterosexual, and the decision casts no direct light on the issue with which I am at this stage concerned.

In Fitzpatrick v Sterling Housing Association [2001] 1 AC 27 the House of Lords was concerned with the right of the homosexual partner of a protected tenant to succeed to the tenancy, and at 40A Lord Slynn noted that the European Court had not so far accepted claims by same sex partners to family rights. Lord Clyde and Lord Hobhouse made observations to the same effect, but it was held that for the purposes of the Rent Act where the word family was undefined, a same sex partner of a tenant could be regarded as a member of the tenant’s family. At 44C Lord Nicholls said -

“Where sexual partners are involved, whether heterosexual or homosexual, there is scope for the intimate mutual love and affection and long-term commitment that typically characterised the relationship of husband and wife. This love and affection and commitment can exist in same sex relationships as in heterosexual relationships. In sexual terms a homosexual relationship is different from a heterosexual relationship, but I am unable to see that the difference is material for present purposes. As already emphasised, the concept underlying membership of family for present purposes is sharing of lives together in a single family unit living in one house.”

But of course we are not concerned with the Rent Act legislation, and the statutory provisions with which we are concerned do contain definitions which are not in any way ambiguous.

Mata Estevez v Spain application 00056501/00 also concerned a homosexual relationship. One partner died in a road accident and the surviving partner claimed social security allowances as a surviving spouse. When refused he relied on Articles 8 and 14, so the court was directly concerned with the question of ambit, and at page 4 it said -

“According to the established case-law of the Convention institutions, long-term homosexual relationships between two men do not fall within the scope of the right to respect for family life protected by Article 8 of the Convention.”

That is absolutely clear, and the court went on to recognise that there is a growing tendency for States to grant legal recognition to stable partnerships between homosexuals. Because there is little common ground that is an area in which States “still enjoy a wide margin of appreciation”. Ms Monaghan submitted that even if there is little common ground in Europe Fitzpatrick shows what the position is or ought to be in English law.

Wandsworth LBC v Michalak [2003] 1 WLR 617 was also concerned with succession to a tenancy. There was no sexual relationship, but the claimant had lived in the premises, and said that he was entitled to respect for his home. That enabled him to say that he was within the ambit of Article 8, but it is worth noting that his attempt to invoke Fitzpatrick failed (see paragraph 31) and at paragraph 35 Lord Justice Brooke said -

“Even if it was open to us to hold that a person as distantly related as Mr Michalak was to Mr Lul would now be treated as a member of Mr Lul’s family in a Rent Act context - and therefore entitled to a successor tenancy - there are too many differences between the regimes for protected/statutory tenancies under the Rent Act 1977 and secure tenancies under the Housing Act 1985 for us to be satisfied that the chosen comparator was in a relatively similar situation.”

In other words, in the context of the present case, it is necessary to look carefully at the statutory scheme with which we are in fact concerned.

In R (Carson) v Secretary of State [2003] 3 All E R 577 the claimant complained that because she lived abroad her state retirement pension was not increased annually as it would have been if she had remained in the United Kingdom. Reynolds, whose appeal was heard at the same time, was a job-seeker whose allowance was less because she was under 25 years of age. Both sought to invoke Article 14. Reynolds claimed that she was subjected to financial hardship, and so fell within the ambit of Article 8 although she did not complain of any violation of the Article read on its own. At paragraph 26 Laws LJ said -

“It is in my judgment important to recognise that on the Strasbourg learning Article 8 does not require the state to provide a home … nor does it impose any positive obligation to provide financial assistance to support a person’s family life or to ensure that individuals may enjoy family life to the full or in any particular manner.”

At paragraph 29 Laws LJ said -

“I do not mean to belittle her undoubted difficulties, but it is clear that like difficulties are common to many people in receipt of benefit. Mr Gill’s submission, if correct, would in principle subject the general welfare provisions made by the state to the requirements of Article 8 and of Article 14 read with Article 8. That is not the law.”

Mr Sales submits that likewise schemes to ensure that children are properly maintained fall outside the reach of article 14 read with Article 8.

Karner v Austria [2003] 14 BHCC 674 was another claim to the succession of a tenancy by the long term same-sex partner of the deceased. The relevant Austrian Rent Act gave a right of succession to a “life companion” and the Supreme Court held that not applicable to a homosexual relationship. The applicant relied on Article 14, taken together with Article 8, and the European Court refused to strike out the application. At paragraph 33 it said -

“The court has to consider whether the subject matter of the present case falls within the ambit of Article 8. The court does not find it necessary to determine the notions of ‘private life’ or ‘family life’ because, in any event, the applicant’s complaint relates to the manner in which the alleged difference in treatment adversely affects the enjoyment of his right to respect for his home guaranteed under Article 8 of the Convention.”

Article 14 was held to apply, and to have been violated. But of course in the present case we are not concerned with M’s right to respect for her home.

That brings me to the relatively recent decision of this court in Douglas v North Tyneseide MBC [2003] EWCA Civ 1847 which concerned student loans for higher education. The claimant, aged 58, was too old to be eligible under the relevant regulations, and submitted that the age barrier contravened Article 14, read together with the right to education in Article 2 of the first Protocol. That submission failed. Scott Baker LJ at paragraph 55 set out the argument of the Secretary of State as to the purpose of the regulations, saying-

“They are not to do with the right to education. Their purpose, as is set out in the evidence, is to encourage greater access to higher education primarily for students wishing to improve their skills and qualifications. The purpose of encouraging access to higher education by offering student loans is primarily to improve the skills and qualifications of the work force. The right protected by Article 2 is the right to avail oneself of such education as the State provides, that is to participate in the facilities existing at a given time. The funding arrangements are not within that right.”

That argument was accepted, and Mr Sales submits that a similar cautious approach to funding arrangements should be adopted in this case.

Finally in relation to the question of the ambit of family life I turn to Ghaidan v Godin-Mendoza [2004] UKHL 30, where the House of Lords concluded that the homosexual surviving partner of a deceased protected tenant was entitled to succeed to the tenancy, not simply as an assured tenant because he was a member of the family, but as a surviving spouse. Lord Nicholls at paragraph 11, noted judicial differences of opinion as to how to approach the question of the ambit of any article relied upon as a gateway to Article 14, but he did not have to deal with those differences because it was common ground that paragraph 2 of schedule 1 to the Rent Act 1977 was a provision within the ambit of the right to respect for a person’s home guaranteed by Article 8, and therefore Article 14 was engaged. He went on to hold that in the context of succession to a tenancy there was no ground for maintaining any distinction between a homosexual and a heterosexual couple.

That review of the authorities seems to me to demonstrate that Mr Sales is right in his submission that M cannot rely on the words “family life” in Article 8 in order to say that the facts of her case fall within the ambit of that Article.

Of course that would not matter if she could rely on any other part of the Article. In this case it is not seriously contended that the levying of child maintenance payments demonstrates a lack of respect for her home, but it is said that the payments impact upon her private life. In that context Ms Monaghan invited our attention to Lustig-Prean and Beckett v UK [1999] 29 EHRR 548, where the applicants had been discharged from the Navy on the grounds of homosexuality, but the passages to which we were referred were really concerned whether intrusive questioning was justified. They do not seem to me to assist in relation to the ambit of the Article in a child support case. I accept, of course, that M’s relationship with her partner was an aspect of her private life, but it is worth recognising that under the regulation she was not penalised because of that relationship. Her position would have been the same if she and her partner had lived together without there being any sexual relationship between them. Her real complaint is that under the regulations she could not take advantage of a benefit available to a certain limited category of absent parents simply because she did not fall into that limited category.

I therefore conclude that she has failed to show that the facts of this case come within the ambit of Article 8 to the extent necessary to engage Article 14.

There remains for consideration the ambit of Article 1 of Protocol One, which reads -

“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 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.”

It seems to me that the child support scheme is an example of the state enforcing laws it deems necessary to control the use of property in accordance with a general interest, or to secure other contributions. In Burrows (supra) where the applicant complained of the size of the contributions required of him under the child support scheme, as opposed to its predecessor, the Commission said at pages 6 to 7 -

“the deprivation of property referred to in the second sentence of Article 1 of Protocol One is primarily concerned with the formal expropriation of assets for a public purpose, and not with the regulation of rights between persons under private law unless the State lays hands – or authorises a third party to lay hands – on a particular piece of property for a purpose which is to serve the public interests…. The Commission therefore doubts that there has been a deprivation of property within the meaning of the second sentence of Article 1 of Protocol One, no property having been taken from the applicant by the state to serve a public purpose.

However, in view of the active role played by the State in assessing and collecting child maintenance under the Child Support Act 1991 and taking into account the fact that A was effectively obliged to request a maintenance assessment in respect of the applicant, since had she refused or failed to do so her social welfare benefits would have been removed, the Commission will assume that for the purposes of this application that there was an interference in the applicant’s peaceful enjoyment of his possessions as provided by the first sentence of Article 1of Protocol No One.”

Clearly that was no more than an assumption contrary to the Commission’s own expressed doubts.

In Carson (supra) Laws LJ at paragraphs 32 to 50 examined the reach of Article 1 Protocol One, and at paragraph 47 to 48 he said -

“The law of the Convention is settled on this point as to the scope of ‘possessions’ for the purpose of Article 1 Protocol One. The policy of the cases is, I think, that while States are in general free to grant, amend or discontinue social security benefits and to change the conditions for entitlement to them as they please without any Convention restraint, yet where contributions are exacted as a price of entitlement the contributor should be afforded a measure of protection; it has, so to speak, cost him something to acquire the benefit.

This approach throws much needed light on the scope of Article 14 read with Article 1 Protocol One, which as I have explained has caused me considerable difficulty. We can now see that the Strasbourg court has treated the payment of contributions as giving rise to a species of pecuniary right, such as to constitute a ‘possession’ for the purpose of Article 1 Protocol One. A reduction or qualification of the right to be paid the benefit thus engages Article 1 Protocol One, although it may not amount to a violation of the Article simpliciter because the Convention confers no right to receive any particular amount. However, the reduction or qualification is subject to the constraints of Article 14: if it is done on discriminatory grounds the discrimination must be justified.”

The situation in the present case is not entirely analogous. We are not concerned with contributions giving rise to pecuniary rights, merely with the allocation of assets to discharge an existing obligation, and, as Mr Sales submits, the logical extension of Ms Monaghan’s submission is that any net adverse financial impact upon her client constitutes a prima facie deprivation of her possessions. If that were right there would appear to be almost no limit to the circumstances in which Article 1 Protocol One would be sufficiently engaged for the purposes of Article 14, and that I cannot accept.

I therefore conclude that in the case of M no reliance can be placed on Article 14 because neither Article 8 nor Article 1 Protocol One are sufficiently engaged. It may be that there should be an independent right to relief against discrimination, as has been proposed, but in this context it does not yet exist, and so long as threshold requirements do exist they must be overcome. That conclusion makes it unnecessary for me to consider the other matters raised in this case, such as whether heterosexual couples are analogous within the wider benefit system, or whether the discrimination relied upon is justified. In the case of M, for the reasons I have given, I would allow the appeal of the Secretary of State.

Ms Langley is a woman who had been in a heterosexual relationship. When it ended she remained in the former home. Her partner left and she paid rent to him. She was held by the local authority not to be entitled to Housing Benefit because Regulation 7(1)(c)(i) of the Housing Benefit (General) Regulations 1987, so far as material, provides -

“A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where -

(c)

his liability under the agreement is -

(i)

to his former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners.”

“Partner” is defined in Regulation 2(1) unless the context otherwise requires as meaning -

“Where a claimant is a member of a married or unmarried couple, the other member of that couple.”

“Married couple” and “unmarried couple” are defined by reference to section 20(11) of the Social Security Act 1986, now re-enacted as section 137(1) of the Social Security Contributions and Benefits Act 1992, which, so far as material, provides -

“’Unmarried couple’ means a man and a woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances.”

Regulation 7(1)(c)(i) is a Regulation made under section 137(2)(i) of the 1992 Act (originally to be found in section 20(12)(h) of the 1986 Act) which provides for regulations to be made -

“For treating any person who is liable to make payments in respect of a dwelling as if he were not so liable.”

Ms Langley complains of discrimination. She would not have been treated in the same way if her former partner had been a woman, and that, she submits, violates her Convention rights under Article 14 read with Article 8(1). She failed before the Commissioner on the basis that as regulation 7 is an anti-abuse provision it should not be read as being necessarily discriminatory, and the Commissioner cited Fredin v Sweden [1991] 13 EHRR 784.

For the purposes of this appeal it is logical to look first at the issue raised by the Respondent’s Notice, namely the ambit of Article 8. As to that the Commissioner said -

“The Housing benefit scheme is a means by which the State shows respect for a claimant’s home and family life. It provides financial support from public funds to allow the claimant to retain or obtain a dwelling in which to establish or maintain a home and, in the home, a family. That is sufficient for the circumstances of this case to come within, at least, the ambit of the Convention right in Article 8(1)”

He went on to refer to Petrovic v Austria (supra). Mr Sales submits that the conclusion of the Commissioner as to the ambit of Article 8 was mistaken, whereas Mr Drabble QC for L submits that the Commissioner was correct.

Mr Drabble submitted that the provisions with which we are concerned clearly fall within the ambit of Article 8. The underlying aim is to enable a person of limited means to remain in the family home, and, adopting the approach used by the European Court in Petrovic, the payment of benefits to enable the former partner to remain is the way that the state shows respect for the home.

Mr Sales submits that when considering Article 8 it is important to distinguish between on the one hand action which deprives someone of their home and, on the other hand, making state funding available to enable a person to get a home or to stay in a home. When funding is made available it is, he submits, outside the ambit of Article 8. In Petrovic the European Court was considering a specific scheme which was closely allied to its object, namely to promote family life. In the present context it is important to recognise at the outset that there is no obligation on the state to provide any person with a home or with funding for that purpose, as was pointed out by Laws LJ in paragraph 26 of his judgment in Carson cited above. It is not, Mr Sales submits, enough for Ms Langley to show that if benefit is withheld that may or even will affect her ability to remain in her home. In any given case that may or may not be the result of the payment or withholding of benefit, and the approach we should adopt to this particular benefit should be broadly the same as that adopted by this court to student loans in Douglas (supra). In that case Scott Baker LJ said at paragraph 56 -

“The Student Support Regulations do not prevent or hamper any individual from undertaking any of the higher education courses that are available; nor are they aimed at doing so. Indeed they are aimed at making it easier for some individuals to obtain a further skill. In some cases the opportunity to obtain a student loan will make all the difference, but in other cases it will make no difference at all. The way it is put by (counsel) is that the Secretary of State’s funding arrangements do not ‘necessarily affect’ the ability of the claimant or others to attend the existing institutions that are available within the state. ”

Mr Sales submits that the same can be said of the relationship between housing benefit and the acquisition or retention of a home.

In my judgment Mr Sales is right. The particular housing benefit with which we are concerned falls outside the ambit of Article 8 because there is no obligation to provide the benefit and its provision is not the state demonstrating its respect for a claimant’s home in the way that parental leave allowance was held to demonstrate respect for family life. I reach this conclusion without regret because it seems to me to be important that the adjustment of the details of anti-abuse provisions in relation to a state benefit should so far as possible remain for scrutiny and re-consideration by Parliament and not by the courts. My conclusion in relation to the ambit of Article 8 makes it unnecessary to for me to consider Mr Drabble’s other grounds of appeal, because if I am right in my conclusion his appeal cannot succeed.

For the reasons I have given I would allow the appeal of the Secretary of State in the case of M and dismiss the appeal of Ms Langley.