Esfandiari & Ors v Secretary of State for Works and Pensions

LORD JUSTICE BUXTON: This is an application by the respondent Secretary of State in a number of appeals from decisions of a social security commissioner, Mr Howell, QC. I do not need, in this judgment, to go in any great detail into the nature of the case; suffice it to say that the three applicants complain about a rule in the scheme for funeral payments, if I can describe it in those general terms, which prohibits the making of such payments in respect of a funeral which takes place outside the United Kingdom.

The applicants' case is that such a rule is indirectly discriminatory against them under Article 14 of the European Convention, read with any one or other of Article 8, Article 9 and Article 1 of the First Protocol.

Before the commissioner, a series of matters were debated. The Secretary of State submitted to him that the applications should fail, in whatever the English is for in limine, because Article 14 as a matter of law did not extend to cases of indirect discrimination: the discrimination in this case alleged to be that the rule excluding payments for foreign funerals operates differentially and discriminatorily against families who have comparatively recently come to this country, because it is likely that such people will be much more anxious to bury a relative abroad than would be someone who had been established in this country for a significant period of time.

The commissioner dismissed that claim in somewhat short order and, having now taken extensive advice, as we were told in the Secretary of State's evidence, the Secretary of State does not now persist in that submission.

The applicants failed nonetheless because the commissioner was not satisfied that the case fell within the ambit of any one of the Articles of the Convention that I have just set out. That is a matter that will have to be debated before this court.

We are principally concerned this morning, however, with the fact that, whether or not because he was at that stage expecting the point on direct discrimination to succeed, the Secretary of State did not seek to justify the rule, should it in fact be found to be discriminatory. That is to say that he did not adduce any evidence or argument in respect of the fifth element in Michalak. He now wishes to adduce such evidence and argument before this court, and has put in a substantial witness statement by an official in the Department for Work and Pensions, explaining why, in the Secretary of State's view, even if in terms of the Convention these rules are discriminatory, the element in them that produces that discrimination is nonetheless justified.

This application has been made very late, and indeed indication of it was given only some two or three weeks before the date for the hearing of the appeal, which indeed was supposed to be heard today. Mr Sales, for the Secretary of State, accepts that that is really wholly unsatisfactory. It is, to put it at its lowest, unfortunate that no serious consideration appears to have been given to the advisability of adducing justification arguments before the commissioner, whatever the Secretary of State's then view was, of the indirect discrimination point, and it is particularly unsatisfactory, I have to say, in the context of the management of the business of this court, that a day having been set aside today for the actual appeal to be heard, we are not able to do that, but have to consider this application. Objection to the lateness of the application and to its content, has been properly taken by Mr Drabble QC and Mr Cox, who represent the appellants.

All that said, the court has to consider what is the most proper and efficacious way of determining the issues that this application raises. The issues are undoubtedly ones of some difficulty. They extend to not merely the question of justification, but also the nature of the discrimination that is involved in this case, and to the difficult question, still to my knowledge completely unresolved, of how the court adjudicates upon the "ambit" of various Articles of the Convention, that having been a matter that engaged the commissioner.

The general view that I am minded to take is that, in a case of this sort, where we are dealing with issues that are really at the threshold of the development of Convention jurisprudence, it would be wholly unsatisfactory for the case to be determined as what would in effect be a theoretical, or moot-like, investigation with the issue of justification not being addressed.

I am, to some extent, fortified in that approach by what happened before their Lordships' House in the case of R (Williamson) v Secretary of State for Employment [2005] 2 AC 246. That was a case where there were difficult issues as to the ambit of various Articles of the Convention, and in which the Secretary of State for Education had taken a specific decision not to pursue before this court the arguments as to justification that he had pursued before the first instance judge. He then sought to reintroduce those arguments in the Court of Appeal.

Lord Nicholls of Birkenhead drew attention to that considerable procedural difficulty, but said that he would see it as unsatisfactory that the House should determine the matter without considering the justification issue. As he put it in paragraph 46:

There is another reason why, in the circumstances at least of this case, I see difficulty in its proceeding without reference to the matter of justification.

Without going into the matter in any great detail, it is of some relevance that, in his important judgment in the case of Carson in this court, Laws LJ drew attention, in paragraph 61, to the test that he at least thought would be appropriate in determining whether a provision was discriminatory, and drew further attention to the fact that the elements that might have to be considered in answering that question overlapped in considerable terms with elements that might be adduced to address the question of justification.

In this case in particular, I think it is going to be difficult and artificial to investigate properly the issue of discrimination, which is not just a formal question, as the commissioner thought, without at the same time straying into the sort of area that is adduced in the witness statement of Miss Munt. Despite, therefore, the history, I would be minded to grant the Secretary of State permission to adduce this evidence and to amend his case in the terms set out in the respondent's notice.

The only aspect of this that has given me concern is the argument put very clearly, if I may say so, by Mr Drabble, that the court will of course be embarking upon that enquiry without the benefit of the view upon it of the commissioner. The court is reluctant, ever, to embark upon a point when it does not have the benefit of the view of the court below, and more particularly so when it is dealing with a specialist Tribunal.

I have therefore anxiously considered whether there are elements in the case that the Secretary of State now wishes to put with which this court really could not properly deal without the expert view of the commissioner. With some hesitation, I am persuaded that the sort of issues that Ms Munt adduces and which the Secretary of State wishes to rely upon would not involve this court in making judgments that it was unqualified to make because it did not have the benefit of the commissioner's view. The arguments seem to me to be ones of practicality and policy in respect of which I would have much welcomed having had Mr Howell's view on them, but which are not ones that I think the view of Mr Howell, or anybody else below, are necessarily dispositive to the extent that this court should not consider them.

I would therefore be minded to grant the major part of the application, that is to say the extension of the case on the part of the Secretary of State, and the adduction of the evidence of Miss Munt.

The Secretary of State also wants to rely on various further arguments set out in his respondent's notice, which Mr Drabble very fairly accepted, or at least I think he accepted, were of a much more orthodox nature of the sort that properly can be adduced before this court, being simply arguments of law. They also involve a change, or apparent change, in the underlying jurisprudence of the European Court of Human Rights with regard to Article 1 of Protocol 1, or at least with regard to the interaction of Article 1, Protocol 1, with Article 14, which this court would in any event have to consider, whether there was a respondent's notice or not.

I would therefore be minded to order that the Secretary of State has leave to rely upon the evidence set out in the witness statement of Miss Munt, and may have an extension of time for filing his respondent's notice. Mr Sales accepted that in view of the history, the Secretary of State was at mercy as to costs, with regard to that part of the respondent's notice that refers to justification and to the evidence of Miss Munt.

I would therefore order that the costs of, and occasioned by, the induction of the argument as to justification should be the appellants' in any event, and I would include in that the costs of today's application, even though the Secretary of State has succeeded, because I think it necessary to mark the inconvenience to the court caused by the late adduction of these matters.

I hope it will be not out of place to say, in respect of that costs order, that there has been some reserve, I think, expressed in the past with regard to the enforcement of costs orders as between the Legal Services Commission on the one hand and other public bodies on the other. I do not think that this is a case in which that reserve ought to prevail and I will expect the chief executive of the Legal Services Commission to be so informed.

I will come in a moment to what further orders need to be made in order to protect the position of the appellants. I would just like to put this on record: I have not been influenced, in making this order, by the submissions on the part of the Secretary of State that the adduction of argument in respect of indirect discrimination raises, or may raise, very difficult and theoretical points of law. That may turn out to be the case in front of whatever constitution of this court has the privilege of hearing this matter. For my own part, I would gratuitously observe that I suspect that indirect discrimination will turn out, as a matter of law, to be no different from direct discrimination, but the factual circumstances in which it arises may cause the various Articles to be applied in a way differently from that which they have been applied so far.

Now, as far as the position of the appellant is concerned, clearly the appellant must have proper time in which to consider the new case that is put in their way, and to consider whether they should adduce evidence to meet it. Now, Mr Drabble, you are in a difficult position here, I accept that, I mean how long do you want?

MR DRABBLE: Well, my Lord, Mr Cox and I have been discussing six weeks in total for both the evidence and the skeleton: in other words starting from scratch to go and talk to our team, to see whether we want any evidence in at the end of the day, and preparing the skeleton in regards to the new case.

LORD JUSTICE BUXTON: Yes, well, I think it is very important that when this case does actually get to court that everyone is as happy as they can be that it is mutually fair for both sides.

MR SALES: My Lord, I mean we won below, it is for my learned friend's to present their appeal. I am not going to object to six weeks.

LORD JUSTICE BUXTON: No, all right, I will therefore order that the appellant has leave to adduce a further skeleton argument and evidence, if so advised, and both should be filed not later than six weeks from today. Is that all right?

MR DRABBLE: My Lord, yes.

LORD JUSTICE BUXTON: There is nothing else we have to deal with is there?

MR SALES: No.

LORD JUSTICE BUXTON: While we are all here, can I just suggest that, in relation to the interesting question of whether you can demonstrate discrimination without the use of statistics, there is a most valuable judgment of Lord Slynn of Hadley in a case called Bobezes [2005] EWCA Civ 1011 which you might find helpful.

MR SALES: Thank you very much.

LORD JUSTICE BUXTON: Could I also say that Lord Slynn's judgment was agreed in full by Pill LJ, and therefore is the judgment of this court, and therefore you need not trouble yourselves with anything else that was said by any other appellate court, in that case.

I think it would be helpful, and I will ask the Secretary of State to do this, you had better discuss with the office when this case is going to be heard, if you could, in the light of this timetable. Of course it really should not be allowed to hang around too long once Mr Drabble has his evidence in.

Right, now, there are all sorts of things I am not allowed to let you have back at the moment, but I will leave the usher to sort that out. Thank you both very much.