Francis v Secretary of State for Work and Pensions

This appeal from a decision of a Social Security Commissioner raises the question whether a claimant who does not qualify for a social security benefit on the literal wording of the regulations governing entitlement to that benefit is nevertheless entitled to it with the aid of Article 14 of the European Convention on Human Rights (“the Convention”).

The benefit is Sure Start Maternity Grant (“Maternity Grant”). This is a grant, currently of £500, introduced in April 2000 to provide help to mothers on low income and with new babies. Entitlement to Maternity Grant is set out in Reg. 5 of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 (“the Regulations”). This provides (so far as material):

“(1)

…a payment to meet maternity expenses (referred to in these Regulations as a “Sure Start Maternity Grant”) shall be made only where –

(a)

the claimant or the claimant’s partner has, in respect of the date of the claim for a Sure Start Maternity Grant, been awarded either income support….. or child tax credit payable at a rate higher than the family element; and

(b)

either-

(i)

the claimant or, if the claimant is a member of a family, one of the family is pregnant or has given birth to a child or still-born child; or

(ii)

the claimant or the claimant’s partner or both of them have adopted a child not exceeding the age of twelve months at the date of the claim; or

(iii)

the claimant and the claimant’s spouse have been granted an order in respect of a child pursuant to section 30 of the Human Fertilisation and Embryology Act 1990 (parental orders: and

(ab)

…

(i)

the claimant or partner has received advice on health and welfare matters relating to the child from a health professional:

….. and

(c)

the claim is made within the prescribed time for claiming a Sure Start Maternity Grant.”

The claim must be made in a period beginning 11 weeks before the first day of the expected week of confinement and ending 3 months after the actual date of the confinement or the date of the adoption order, in the case of an adopted child, or the date of the parental order, in the case of a child by a surrogate mother (see para. 8 of Sch. 4 to the Social Security (Claims and Payments) Regulations 1987 as amended).

The appellant is Sara Francis. She describes herself in her witness statement as a full-time mother. She is unmarried but has 3 children of her own aged between 4 and 10 and they live with her. She has an older sister who has serious health and other problems. On 6 October 2001 the sister gave birth to a boy, Q. He spent only 3 days with his mother before being taken into care and placed with a foster carer. Ms Francis started to visit Q regularly when he was 6 weeks old and she obtained a residence order under s.8 of the Children Act 1989 (“the 1989 Act”) in respect of him on 15 May 2002. Before doing so she had thought about adoption but ruled it out because she wanted Q to have the opportunity to know his roots. Q has lived with her ever since the residence order. She treats Q in the same way as her own children. She has obtained Child Benefit for Q and is in receipt of Income Support.

On 19 June 2002 Ms Francis applied for a Maternity Grant. In her witness statement she says that she needed the Maternity Grant badly. She had to get a cot, furniture and baby equipment for Q.

It has never been in dispute that Ms Francis satisfied the conditions of Reg. 5(1)(a) (the means test) and (bb) (the requirement for professional advice to be taken). However, her claim was refused by the Decision Maker and on appeal by the Social Security Appeal Tribunal. She appealed to the Social Security Commissioner, and Mr Commissioner Williams, after issuing one adverse decision which he set aside, issued a second decision on 1 September 2004. Thereby he dismissed Ms Francis’ appeal. It had been argued for her that the reference in Reg. 5 to adoption should be given a broad meaning to include a person who has a residence order for the baby in question. That was rejected by the Commissioner. It had further been argued that her claim to Maternity Grant fell within the ambit of Article 8 of, or Article 1 of Protocol 1 to, the Convention and that to exclude her from the scope of Reg. 5(1)(b)(ii) would amount to discrimination under Article 14 of the Convention. That was because there was no objective justification for her being treated differently from an adopter under the Adoption Act 1976 (“the 1976 Act”), and she was in an analogous position to an adopter. That further argument was also rejected. The Commissioner compared the statutory provisions relating to an adoption order and a residence order respectively and said that it was clear from a comparison of those provisions that the nature of a residence order was significantly more limited that that of an adoption order. He did not consider that the common ground between the position of Ms Francis, looking after Q because by the residence order the child was living with her, and the position of a natural or adoptive parent was sufficient to establish the analogous status for which she contended. He said that Ms Francis had not assumed the full parental role and he therefore did not find that she had a status or position with regard to Q such that she could claim to be the subject of discrimination from the terms of Reg. 5(1)(b).

The Commissioner granted leave to appeal to this court on the ground that an issue of general importance was raised, namely whether social security claimants with residence orders in respect of children should be treated in the same way as birth parents or adoptive parents of those children for the purposes of claiming Maternity Grant or any similar payments in respect of those children.

Miss Nathalie Lieven for Ms Francis contends that the Commissioner erred in law in rejecting the argument that the refusal of Maternity Grant was discriminatory in breach of Article 14. She submits that (1) Maternity Grant falls within the ambit of both or either of Article 8 of the Convention (respect for family life) and Article 1 of Protocol 1 to the Convention (peaceful enjoyment of possessions), (2) for the purposes of the award of Maternity Grant Ms Francis as a person with parental responsibility for a child pursuant to a residence order was in a situation analogous to a person with parental responsibility for a child pursuant to an adoption order, and (3) no objective justification has been put forward by the Secretary of State such as would make such discrimination lawful.

On Miss Lieven’s first submission Mr Daniel Kolinsky for the Secretary of State accepts for the purpose of this appeal that the facts of the present case are sufficiently close to those of Petrovic v Austria (1998) 33 EHHR 307 to come with the ambit of Article 8, but he does not accept that the facts come within the ambit of Article 1 of Protocol 1. On Miss Lieven’s second submission Mr Kolinsky submits that no claim has been formulated which comes within any of the grounds for discrimination covered by Article 14, a person with a residence order having a different status from, and not being in an analogous position to, a person who has adopted a child. On Miss Lieven’s third submission Mr Kolinsky submits that it is perfectly proper when dealing with social security benefits for bright line rules to be drawn up in the interests of certainty or ease of administration and that it is rational and justified for the Secretary of State to formulate rules of entitlement for a welfare benefit such as Maternity Grant which confer the benefit on persons who have one status but do not confer it on persons who have a different status.

It is common ground that for Article 14 to apply the facts must come within the ambit of at least one of the substantive provisions of the Convention. In view of the concession by the Secretary of State that the facts do come within Article 8 it is unnecessary to resolve the dispute over Article 1 of Protocol 1.

The substantial dispute in this case is whether there has been discrimination within Article 14. The terms of the Article are:

“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.”

Before I turn to the meaning of that Article I shall consider whether there was a relevant difference in treatment between Ms Francis and any comparator put forward by her. Of the three categories of person listed in Reg. 5(1)(b), that in sub-para (ii), a person who has adopted a child not exceeding twelve months at the date of the claim, is the chosen comparator.

By s.12(1) of the 1976 Act

“An adoption order is an order giving parental responsibility for a child to the adopters, made on their application by an authorised court.”

A residence order is made under s.8 of the 1989 Act. The order is defined in s.8(1) as meaning “an order settling the arrangements to be made as to the person with whom a child is to live”. A residence order may be made in favour of two or more persons who do not live together, in which case the order may specify the periods during which the child is to live in the different households (s.8(4)). By s.12, so far as material:

“(1)

Where the court makes a residence order in favour of the father of a child it shall, if the father would not otherwise have parental responsibility for the child, also make an order under section 4 giving him that responsibility.

(2)

Where the court make a residence order in favour of any person who is not the parent or guardian of the child concerned that person shall have parental responsibility for the child while the residence order remains in force.”

By s.3(1) of the 1989 Act “parental responsibility” is defined to mean “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. S.3(4)(a) provides that the fact that a person has, or does not have, parental responsibility for a child is not to affect any obligation which he may have in relation to the child, such as a statutory duty to maintain the child.

A residence order is subject to further orders which may terminate it. It may be expressed as an order for a specified period, but usually it is not so limited.

It is not in doubt that there are significant legal differences between an adoption order and a residence order nor that an adoption order has a wider effect than a residence order, but the question is whether for the purpose of Maternity Grant the differences between the orders are material. For the Secretary of State Julie Munt provided a written statement in para. 12 of which she set out the consequences of an adoption order, as opposed to a residence order, being made:

• “in marriage an adoptive person is deemed to be within the prohibited degrees and is prevented from marrying his adoptive parent whereas a person would not be prohibited from marrying a person who had had a residence order in respect of them;

• in the case of nationality, British nationality may be acquired by a child under an adoption order made in a UK court (see section 1(5A) British Nationality Act 1981) whereas the making of a residence order cannot of itself result in a child gaining British nationality;

• any pension payable to a person’s child will be payable to an adoptive child but not to a child in respect of whom the person had a resident order;

• in relation to the right of succession the child and the adoptive parent may have a claim on each other’s estate whereas neither the child nor the non-parent with a parental responsibility will have any claim on the other’s estate by way of being parent and child;

• an adoptive parent has the right to consent or refuse to consent to the child’s adoption and the right to appoint a guardian for the child (see section 12(3) Children Act 1989) whereas a non-parent with a residence order would not have these rights;

• a person with a residence order may be restricted in their right to change the child’s name and the right to remove the child from the jurisdiction whereas an adoptive parent will be unrestricted in exercising these rights.”

Not one of those consequences has any relevance to Maternity Grant, the purpose of which is apparent from Reg. 5(1) itself (“a payment to meet maternity expenses”) and is helpfully expanded on by Ms Munt in para. 4 of her witness statement:

“The purpose of [Maternity Grant] is to ensure that children have a positive start in life by providing help to low income mothers with the costs associated with a new baby. In March 2000 the Secretary of State for Social Security said ‘We are tackling the causes of poverty, not only through education and housing policies, but through extra help such as the….. Maternity Grant for mothers with new babies…..’ (Hansard Volume 347 column 44).”

In The National Provincial Building Society v United Kingdom (1997) 25 EHRR 127 at para. 88 the European Court of Human Rights said that not every difference in treatment will amount to a violation of Article 14 and that it must be established that “other persons in an analogous or relevantly similar situation enjoy preferential treatment”. In deciding whether a comparator enjoying preferential treatment is in an analogous or relevantly similar situation it is pertinent to have regard to the purpose of Maternity Grant. The situation of the adoptive mother in receipt of Maternity Grant is, as Miss Munt’s statement of its purpose explains, that she has a new baby and is faced with the additional costs associated with such a baby but has a low income such that extra help is need to give the baby a positive start in life. Ms Francis is not the mother of Q, natural or adoptive, nor is she his mother through surrogacy, but she has parental responsibility for him and it has not been suggested that she did not face the additional costs associated with a new baby. As her witness statement shows, she had to obtain things like a cot for Q. This she did with the aid of a one-off payment from the social services office. It is accepted that she has a low income and that she would have qualified for Maternity Grant had she obtained an adoption order rather than a residence order. Mr Kolinsky suggested that because the natural mother was not excluded from responsibility for maintaining Q, Ms Francis, as a person in whose favour only a residence order had been made, was not in an analogous or relevantly similar situation. He did not and could not suggest that the natural mother was in fact maintaining Q. Ms Francis is receiving Child Benefit for Q as well as a child premium in her Income Support, so that the Secretary of State appears to accept as a matter of fact that Ms Francis is looking after Q and bearing the costs for him. Ever since Q has come to live with her, she has in reality been acting as his mother and has maintained him in the same way as she has maintained every other member of her family. In my judgment for the purpose of Maternity Grant Ms Francis is in an analogous or relevantly similar situation to an adoptive mother who enjoys preferential treatment under Reg. 5.

I turn to the meaning of Article 14. It is to be noted that the Article provides, as illustrative (“such as”) of what grounds are prohibited, 10 specific examples (“sex, race….. etc”) before the final ground, “or other status”. In the French text of the Convention “situation” is given for “status” and arguably has a wider connotation than is suggested by the word “status”. However, we have heard no argument on this point and I shall proceed on the footing of the English text alone. Miss Lieven does not seek to argue that Ms Francis can rely on any of the specific examples in Article 14. Her case depends on “other status”.

In the absence of authority it might have been possible to contend that Article 14 prohibits discrimination “on any ground” and that the breadth of that language was not limited by the specific examples illustrative of the discrimination to which the Article was directed. However, that is not how the Article has been interpreted. In R (S) v Chief Constable of S. Yorkshire Police [2004] 1 WLR 2196 at paras. 46ff. Lord Steyn considered the question whether the difference in treatment between a complainant and a comparator was on one of the proscribed grounds under Article 14. He said that the question was important because, if the different treatment was not on a relevant ground for the purpose of Article 14, then the Article was not applicable. He continued:

“48 The list of grounds in article 14 is not exhaustive, and necessarily includes each of the specifically proscribed grounds as well as ‘other status’. The European Court of Human Rights has interpreted ‘other status’ as meaning a personal characteristic: Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, 732-733, para 56….. On the other hand, the proscribed grounds in article 14 cannot be unlimited, otherwise the wording of article 14 referring to ‘other status’ beyond the well-established proscribed grounds, including things such as sex, race or colour, would be unnecessary. It would then preclude discrimination on any ground. That is plainly not the meaning of article 14.

49.

It is, therefore, necessary to examine whether the ground for different treatment in this case amounts to a status in the sense of a personal characteristic within the meaning of article 14.”

The different treatment in that case was on the ground that the complainants had provided DNA samples and fingerprints to the police whereas the comparators had never been required to do so. Lord Steyn described that as an historical fact unrelated to any personal characteristic. Accordingly there was no breach of Article 14.

Kjeldsen contains in para. 56 a statement by the European Court of Human Rights that “Article 14 prohibits, within the ambit of the rights and freedoms guaranteed, discriminatory treatment having as its basis or reason a personal characteristic (‘status’) by which persons or groups of persons are distinguishable from each other.”

Lord Steyn’s approach has been applied in two other cases in the House of Lords, R (Hooper) v Work and Pensions Secretary [2005] 1 WLR 1681 at para. 65 per Lord Hoffmann and R (Carson) v Work and Pensions Secretary [2005] 2 WLR 1369 (see, for example, para.13 per Lord Hoffmann and paras. 52-54 per Lord Walker), even though commentators on human rights law have drawn attention to the width of the grounds found by the European Court of Human Rights to come within Article 14. Thus in Clayton and Tomlinson, The Law of Human Rights at para. 17.98, it is said:

“In principle, discrimination on any ground might be prohibited by the Article since the list of prohibited grounds are not exhaustive and the Strasbourg authorities have accepted a number of ‘other statuses’ as coming within the residual category including:

•

sexual orientation;

•

marital status;

•

legitimacy;

•

trade union status;

•

military status;

•

conscientious objection;

•

professional status;

•

imprisonment.”

Again in Lester and Pannick, Human Rights Law and Practice (2^nd ed.) para. 4.14.21, it is said:

“The ECt HR has tended to apply a liberal approach to the ‘grounds’ upon which discrimination is prohibited, preferring not to limit them or define them restrictively. The general reference to ‘other status’ allows for many types of discrimination to be considered. In some cases, the ECt HR has not even thought it necessary to define the grounds upon which a specific example of discrimination is upheld.”

In my judgment, we are bound to apply the test suggested by the House of Lords and to examine whether the ground for different treatment in this case amounts to a status in the sense of a personal characteristic. Miss Lieven submits that it does. She says that a person in the position of Ms Francis with parental responsibility for a child by reason of the residence order is being discriminated against on the ground of her status as such. She submits that the discrimination is against persons with parental responsibility by reason of a residence order and in favour of persons who have the status of being adoptive parents. The ground of discrimination, she argues, is a personal characteristic.

Mr Kolinsky challenges this. He says that the residence order like the adoption order is no more than an historical fact, as in R(S) v Chief Constable of S. Yorkshire. Further, he argues that a personal characteristic is not something that can be voluntarily assumed but must be something is inherent and immutable. He points to the speech of Lord Walker in Carson which, he says, supported his submission. Lord Walker discussed the various grounds of discrimination within Article 14, noting that some were more sensitive than others, and said in para. 57 that where there is an allegation that Article 14 has been infringed on one of the most sensitive grounds, severe scrutiny is called for. In para. 58 he referred to such grounds as being race, gender, illegitimacy, religion, nationality and sexual orientation. He continued:

“Where an individual lives is in principle a matter of choice. So although it can be regarded as a personal characteristic it is not immutable.”

In my judgment it is plain that Lord Walker’s speech provides no support for Mr Kolinsky’s submission. On the contrary, it is inimical to it. A personal characteristic, as Lord Walker says, need not be immutable and can be a matter of choice. What Lord Walker was concerned with was the severity of scrutiny of the various grounds in Article 14 and the necessity for weighty reasons to justify discrimination on particularly sensitive grounds. The relevant status in the Carson case, non-residence, did not call for severe scrutiny and the discrimination was rationally justified. I do not accept that the status relied on in the present case was merely one of historical fact. The residence order like the adoption order, while an historical fact, relevantly gave rise to a continuing relationship between the person who thereby had parental responsibility for a child and the child. I have no difficulty in describing the possession of that relationship with its obligations as a personal characteristic, satisfying the Kjeldsen test.

As the passage cited in para. 24 above from Clayton and Tomlinson indicates, the Strasbourg jurisprudence shows the acceptance of a number of statuses which depend on choice and are not immutable. Thus in Engel v Netherlands (No. 1) (1976) 1 EHRR 647 the European Court of Human Rights held that a distinction based on the rank of soldiers was a distinction based on status within Article 14. Although the decision predates Kjeldsen, as Mr Kolinsky pointed out, it seems to me consistent with the test of a personal characteristic.

Miss Lieven accepted that the ground of Article 14 relied on in this case by Ms Francis did not call for severe scrutiny but only rational justification. Has the Secretary of State established that the discrimination against those with parental responsibility for a child by reason of a residence order is objectively justified? For the Secretary of State some emphasis was placed on administrative convenience and the need for bright lines in the rules governing benefits like Maternity Grant. I accept that that is a relevant consideration, but the evidence does not clearly disclose that there would be seriously adverse consequences if those with residence orders were entitled to Maternity Grant. In para. 16 of her witness statement Miss Munt says that, according to the Family Justice System Statistical Bulletin, in 2002 32,459 residence orders and 4,120 adoption orders were made. But this tells one nothing as to the number of residence orders and adoption orders respectively made in respect of children under 12 months in favour of persons satisfying the means test in Reg. 5(1)(a). The concerns expressed appear to relate to the possibility of officials having to examine the personal circumstances of those with residence orders, but it is not apparent why the fact of the residence order, like the adoption order, should not suffice. Another concern appears to be that more than one person might have a residence order in his or her favour, but the question who should be entitled to the Maternity Grant in that circumstance could be dealt with by the Regulations, such as by entitlement being linked to Child Benefit.

In any event, administrative convenience cannot in itself be a sufficient justification for discrimination without some other justification as to why those in an analogous or relevantly similar situation are being excluded. Mr Kolinsky, when pressed by this court to explain the policy for the different treatment, said that it was because the natural parent was not excluded from responsibility for his or her child. The Secretary of State produced no evidence to show that the natural parent generally or frequently bore the extra costs associated with a new baby made the subject of a residence order in favour of a non-parent. In circumstances such as are present here, where the person with parental responsibility by reason of the residence order is given no right to a grant to meet the extra costs associated with a new baby but needs the equipment for that baby and the natural parent contributes nothing and cannot be compelled to make a contribution, the justification put forward by the Secretary of State is more theoretical than real. I am not persuaded that the Secretary of State has provided a rational justification for the discrimination. It follows that Ms Francis’ claim based on Article 14 is made good.

That leaves the question of the appropriate remedy. Miss Lieven submitted that this court should perform its interpretive duty under s.3(1) Human Rights Act 1998 to read and give effect to the Regulations in a way which is compatible with the Conventions rights so far as possible, and she reminded us of the remarks of Lord Steyn in R v A (No. 2) [2002] 1 AC 45 at paras. 44 and 45 which make clear how strong is that duty. However, I do not think that it is possible to construe Reg. 5(1)(b) in a way which includes a person given parental responsibility by a residence order for a child not exceeding the age of twelve months at the date of the claim. That would not be the interpretation but the rewriting of Reg.5(1)(b) to include a new category. Miss Lieven submitted in the alternative that the court should grant a declaration that Ms Francis was entitled to Maternity Grant. Mr Kolinsky accepted that that was the appropriate remedy. I agree. That would allow the Secretary of State to decide how best to reformulate the Regulations so as to exclude the discrimination identified in the present case. I would ask counsel to attempt to agree the appropriate declaration.

For these reasons I would allow the appeal and grant the declaration which I have indicated.