Esfandiari & Ors v Secretary of State for Work & Pensions

These appeals concern the refusal by the Secretary of State of the Appellants’ claims for funeral payments under Regulation 7(1)(b)(ii) of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 SI No. 481 (the “Regulations”). Under that provision, a payment for funeral expenses is to be made only where a funeral is held in the United Kingdom (or in certain cases the EEA States). In his evidence, the Secretary of State describes the purpose of the funeral payment scheme as follows:

“The purpose of the [funeral payment] Scheme is to provide for a simple, but respectful, low-cost funeral where the responsible person is in receipt of a means tested benefit or certain tax credits and there are insufficiently readily available funds which would otherwise meet its costs.”

The facts in the four cases are substantially the same. Taking Mr Esfandiari’s case as typical, he was an Iranian who came to this country in 1976, and was granted indefinite leave to remain. His wife joined him in 1988. He became entitled to income support in 2002. His wife died in that year, and the funeral was arranged in Iran. He claimed a funeral payment, for which he met all the conditions, save the condition that the funeral must be held in the United Kingdom (“the UK condition”). The claim was refused on that ground.

The other cases were similar. The Commissioner (P L Howell QC) summarised their common features:

“All the claimants and their late partners had relatively recent family origins in overseas Muslim countries and continuing personal ties with those countries (Iran, Bangladesh and Pakistan). In each case the choice was made for social, family or religious reasons (or a combination of all three) that the deceased should be returned to the country of family origin to be buried there in accordance with Muslim practice. This was a matter of choice, to comply with the deceased’s wishes or the claimant’s feeling or moral and social obligation: it was not however a matter of necessity, as proper facilities for Muslim burials exist in the United Kingdom.”

The short question is whether the UK condition is consistent with the European Convention of Human Rights, as applied by the Human Rights Act 1998. The appellants claim that the condition was discriminatory against them, contrary to Article 14 of the Convention. Article 14 provides that the enjoyment of the substantive Convention rights is to 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.”

The Commissioner held that the refusal involved indirect discrimination against the claimants as members of -

“… the group of what one may loosely refer to as ‘migrants’ or members of migrant families, namely those who or whose families have arrived to live and settle here from other countries within the last generation or so...” (para [21])

He found guidance in the decision of the European Court of Justice in O’Flynn v Chief Adjudication Officer [1998] ICR 608. However, he had already held that the treatment was not within the “ambit” of any of the substantive articles of the European Convention. Accordingly, he held that it was not prohibited by Article 14. The Appellants contend that he erred in law in so holding and that the discrimination was within the ambit of Article 8 (right to respect for private and family life), or Article 1 of Protocol 1 (protection of property). (I shall follow Lord Walker in referring to the latter as “Article 1 FP”).

Although the Commissioner did not arrive at the stage of assessing the amounts of the claims, we were shown the expenses claimed in two cases, those of Mr Esfandiari and Mrs Nessa. In the former (for a funeral in Iran) the total claim was £3550; in the latter (in Bangladesh) only £927. These figures can be compared with the average amount of funeral payments in 2001/2 of £912. The latter example shows that the cost of a foreign funeral is not necessarily out of line with that of a typical funeral in the UK.

It should be noted that, even within the UK, the funeral payment may not meet the full costs of the funeral, and in such a case it may need to be “topped up” by payments from other sources. There are detailed rules governing the allowable costs, and most are restricted by reference to what is “necessary” (see regulation 7A(2)(a)(i), (b)(ii), (d), (e)(ii) and (f)). “Other funeral expenses” (for example, for a coffin and flowers) are restricted to £600 (reg 7A(2)(g)). As was said by another Commissioner:

“The word ‘necessary’ is, in my judgment, an important limitation on costs, and it must never be forgotten that the costs in question are being defrayed out of public funds. Parliament has had to balance the wishes of the relatives of the deceased against any increased costs involved, and has decided that, as such costs are being borne out of the public purse, they must be limited to that which cannot be avoided.”

In any event, as Mr Drabble submits (supported in this respect by O’Flynn para [29]), if relative cost were the only issue, it could be met by an appropriate cap, rather than outright refusal.

Notwithstanding the wealth of learning put before us (including 60 pages of skeleton argument, and some 40 authorities), I prefer a “simple and non-technical” approach (see R (Carson and Reynolds) v Secretary of State for Work and Pensions [2005] 2 WLR 1369, [3] per Lord Nicholls). With respect to the contrary view of the Commissioner, I find it impossible to see this as a case of “discrimination” in any relevant sense. The state made provision for a suitable burial in the UK for all those of inadequate means, regardless of personal characteristics or status. There was no obligation on the state to do so, and certainly no obligation to do more. It was open to each appellant to take advantage of this provision, but each chose not to do so for understandable, but entirely personal, reasons.

The only way in which this can be represented as “discriminatory” is by characterising them as members of a “group”, that of recent migrants to this country; and then finding “indirect” discrimination, in that as a group (so it is assumed) they are more likely than other comparable groups to have retained family links with their countries of origin, and therefore more likely to want their loved ones to be buried there. Such reasoning seems to me, with respect, wholly artificial. Without demeaning the strength and sincerity of the wishes of these appellants as individuals, it is not obvious that recent migrants, as a group, are particularly likely to prefer a burial in their country of origin, rather than in the country they have made their home. In any event there may be many other categories of people resident in this country, who, given the choice, might elect for a burial abroad for themselves or their loved ones, whether for religious, family, social or purely sentimental reasons. They may have spouses from another country, who have retained their native family links; they may have spent large parts of their lives in another country; they may have children who have moved to another country. Such wishes are understandable and to be respected; but it is not the job of the state to satisfy them. Nor does the sharing of such desires render those who have them a “group” requiring special protection under Article 14.

It is true that the protection of Article 14 is not confined to the traditional categories, defined by sex, race and so on, but extends to discrimination on the ground of “other status”. It is true also that the precise scope of this expression remains unsettled in Strasbourg case-law, save that it is taken as referring to “personal characteristics” (Kjeldsen v. Denmark (1976) 1 EHRR 711, [56]). However, that imprecision cannot be taken as a licence to define groups by reference to criteria which are “not analogous to any of the expressly prescribed grounds” (R (S and Marper) v. Chief Constable of South Yorkshire Police [2004] 1 WLR 2196, [51] per Lord Steyn), and which appear to have no special significance in the scheme of the Convention.

One may arrive at the same answer by a different route, following Lord Hoffmann in Carson and Reynolds (above). Ms Carson complained that the social security scheme denied her an annual cost of living increase solely because she was resident in South Africa, with which (unlike some other countries) the government had no bilateral arrangement providing for such increases. It was accepted for the purposes of argument that her foreign residence was a “status” within Article 14.

However, as Lord Hoffmann explained (at [15]-[18]), certain types of status attract higher levels of protection than others. He drew a distinction between grounds of discrimination which “prima facie appear to offend our notions of the respect due to the individual” and those which “merely require some rational justification”:

“16.

There are two important consequences of making this distinction. First, discrimination in the first category cannot be justified merely on utilitarian grounds, eg that it is rational to prefer to employ men rather than women because more women than men give up employment to look after children. That offends the notion that everyone is entitled to be treated as an individual and not a statistical unit. On the other hand, differences in treatment in the second category (eg on grounds of ability, education, wealth, occupation) usually depend upon considerations of the general public interest. Secondly, while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government.”

Applying that approach to Ms Carson’s case, he said:

“18.

The denial of a social security benefit to Ms Carson on the ground that she lives abroad cannot possibly be equated with discrimination on grounds of race or sex. It is not a denial of respect for her as an individual. She was under no obligation to move to South Africa. She did so voluntarily and no doubt for good reasons. But in doing so she put herself outside the primary scope and purpose of the UK social security system….”

Similarly, in the present case, even if one were to accept that recent migrants have an identifiable “status” for the purpose of Article 14, it would be within the second category, where there is the greatest room for policy to play its part. Decisions on the allocation of public funds for such purposes are questions of social policy not law. If justification is required, the considerations set out in the evidence of the Secretary of State, in summary that an amended scheme would be more complex and more costly to administer, are not irrational, and are well within the “margin of appreciation” allowed by Strasbourg jurisprudence.

The high point of Mr Drabble’s argument is to be found in the parallel with the judgment of the European Court of Justice in O’Flynn, where it was held that, as regards migrant workers falling within the protection of Community law, it was contrary to Art. 7(2) of Regulation No. 1612/68 (on freedom of movement of workers within the Community) to restrict funeral payments to funerals within the UK. The Court held that an Irish national working in the UK should not have been refused a funeral payment required for the burial of his son at a family grave in his home country. Following this decision, regulations 7(1)(b)(i) and 7(1A) introduced a limited exception to the UK condition.

As Mr Drabble fairly points out, the Court was undeterred by the fact that the desire for an Irish burial was a matter of choice rather than necessity. It also rejected the government’s arguments by way of justification, which were in some respects similar to those put forward in the present case.

However, I agree with Mr Sales that, even assuming that the Strasbourg court would apply the same test for indirect discrimination, the crucial difference lies in the special status afforded by the EU treaty to migrant workers from other member states. This has been accepted in Strasbourg jurisprudence, which recognises that, for the purposes of Art. 14, nationals of Member States of the Communities may be entitled to preferential treatment on the basis of belonging to a “special legal order”: see Moustaquim v. Belgium (1991) 13 EHRR 802, at [49]. Recent migrants from other countries (as a group) enjoy no equivalent status under the Convention. There is no reason to infer that they are subject to the same protections, nor that the state’s margin of appreciation in respect of them is subject to the same limitations.

Finally, although detailed discussion is not required in this case, I agree with Mr Sales that caution is necessary in applying the concept of indirectdiscrimination to the somewhat loosely-defined categories used by Article 14 of the Convention. The case-law is as yet relatively limited: see Thlimmenos v. Greece (2001) 31 EHRR 15, at [44]; Jordan v. UK (2001) 37 EHRR 52, at [154]; Pretty v. UK (2002) 35 EHRR 23, at [88]-[90]; and Hoogendijk v. Netherlands(2005) 40 EHRR SE22, at 206-207.

In so far as one can distil a test from the cases, the question seems to be whether the effects on the particular group are “disproportionately prejudicial” (see e.g. Jordan para [154]). If that is the test, then even assuming that “recent migrants” are to be treated as a “particular group”, it has not in my view been shown that the effects of the condition are “disproportionately prejudicial” to the group as a whole, whatever the effects in these individual cases.

In view of the detailed submissions made to us, I will comment briefly on the other main issue, although it is unnecessary for a decision on the appeal.

The general principle is not in doubt. Article 14 has no independent life:

“...Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.” (Petrovic v. Austria (2001) 33 EHRR 14, at [22]; emphasis added).

The question therefore is whether the facts can be brought “within the ambit” of one of the other articles. As I have said, those relied on are Article 8 and Article 1P. (Article 9 was relied on before the Commissioner, but was not pressed before us.)

Mr Petrovic’s case also provides the starting-point for the consideration of Article 8. He had complained of the Austrian authorities’ refusal to award him a parental leave allowance. The relevant Austrian legislation only permitted this allowance to be paid to mothers. The Court held that the allowance fell within the ambit of Article 8, but that the discrimination was justified. As to “ambit” it said:

“26.

...the Court...considers that the refusal to grant Mr Petrovic a parental leave allowance cannot amount to a failure to respect family life, since Article 8 does not impose any positive obligation on States to provide the financial assistance in question.

27.

Nonetheless, this allowance paid by the State is intended to promote family lifeand necessarily affectsthe way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children.

28.

The Court has said on many occasions that Article 14 comes into play whenever “the subject-matter of the disadvantage ... constitutes one of the modalities of the exercise of a right guaranteed” (see the National Union of Belgian Police v Belgium judgment of 27 October 1975, Series A no. 19, p. 20, § 45), or the measures complained of are “linked to the exercise of a right guaranteed” (see the Schmidt and Dahlström v Sweden judgment of 6 February 1976, Series A no. 21, p. 17, § 39).

29.

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...”

Since the hearing of this appeal, the House of Lords has handed down its decision in Secretary of State v Work and Pensions v M [2006] UKHL 11, which supports a narrow approach to this question. It is sufficient to quote the leading speech of Lord Walker, who after a detailed review of the Strasbourg case-law on this issue, concluded:

“82.

Ms Monaghan submitted that since the concept of respect for private and family life is so wide and multifaceted, your Lordships should be ready to conclude, in considering a complaint under article 14, that any alleged act of discrimination is within the ambit of article 8. But if that were right virtually every act of discrimination on grounds of personal status (gender, sexual orientation, race, religion, and so on) would amount to a breach of article 14, since these are all important elements in an individual's private life. There would be little or no need for the wider prohibition in article 1 of the Twelfth Protocol on discrimination in the enjoyment of any legal right.

83.

My Lords, in my opinion that is not the effect of the Strasbourg case law which I have attempted to summarise. The ECHR has taken a more nuanced approach, reflecting the unique feature of article 8 to which I have already drawn attention: that it is concerned with the failure to accord respect. To criminalise any manifestation of an individual's sexual orientation plainly fails to respect his or her private life, even if in practice the criminal law is not enforced (Dudgeon; Norris); so does intrusive interrogation and humiliating discharge from the armed forces (Smith and Grady; Lustig-Prean andBeckett). Banning a former KGB officer from all public sector posts, and from a wide range of responsible private-sector posts, is so draconian as to threaten his leading a normal personal life (Sidabras andDziautas). Less serious interference would not merely have been a breach of article 8; it would not have fallen within the ambit of the article at all.

84.

Similarly the cases in which article 14 has been considered in conjunction with the family life limb of article 8 were all (whichever way they were ultimately decided) concerned with measures very closely connected with family life: Petrovic (parental leave); Estevez (social security benefit for surviving spouse); Frette (adoption). By contrast Logan (the CSA case) is an example of unsuccessful reliance on a much more remote link (financial resources to visit absent children).”

Although we have received further submissions from the parties following this decision, they do not affect my view of the present case. The cases reviewed by Lord Walker were concerned with very different subject matter. The need for a decent funeral is a basic requirement of human dignity, whether from the point of view of the individual or from that of the family. In Strasbourg language the funeral payment is the “modality” by which the state ensures that that this need can be met, even by those families who have no adequate means of their own. By offering it, the state demonstrates its respect for this important aspect of family life. I agree respectfully with another Commissioner (Andrew Bano) who said:

“ … (the regulations) in Part III of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987, which allow financially disadvantaged members of society to discharge their family obligations to arrange for the funeral of a family member in accordance with the family’s customs, traditions and religious or other observances, constitute a demonstration by the State of respect for one of the most solemn and fundamental manifestations of family life.” (CIS/3280/2001, para 8)

The present Commissioner disagreed with that reasoning. He thought that it fell into -

“… the trap of confusing two things that have to be kept distinct for the purposes of Article 14, namely the securing of the enjoyment of the right protected by the primary Article, and the factual context in which it arises. Just because funerals are undeniably very important occasions for individuals and their families, it does not follow that every action taken by the State in relation to a funeral, and in particular not every provision of means-tested cash assistance for people to meet the costs of a private funeral, is a means of the State securing the freedom from interference with private and family life that is the essential nature of the right guaranteed under Article 8” (para 34)

For the reasons I have given, I respectfully disagree. I think it shows too limited a view of the nature of the right guaranteed by Article 8. I also gain support from the ECHR case-law (not apparently cited to the Commissioner). Article 8 has been accepted as encompassing a refusal to allow a prisoner to attend his parents’ funerals (Ploski v. Poland, no. 26761/95, paragraph 32), and delay by the authorities in releasing a child’s body to the parents for a funeral (Pannullo and Forte v. France, no. 37794/97, ECHR 2001-X). On the other hand, it did not encompass the choice of the form of a burial monument, or “the right as such to obtain any particular mode of funeral or attendant burial features” (Jones v. UK, ECtHR, decision of 13 September 2005). Ploski seems to me a particularly helpful pointer as to the ambit of the article: the right to attend a family funeral is of no value unless the family has the means to arrange it.

Finally, under this heading, I should mention another recent decision of this court relied on by Mr Sales: R (Douglas) v. North Tyneside Metropolitan Borough Council [2004] 1 WLR 2363. It was held that the factual connection between provision of educational loans and access to higher education was insufficient to bring it within the ambit of Article 2 of Protocol 1. Mr Sales relies on the Court’s reference to the word “necessarily” in paragraph 27 of Petrovic (see above). Having referred to that paragraph, Scott-Baker LJ said:

“The right of access is not necessarily affected by the absence of a loan....The funding arrangements are one stage removed from the education itself…

However, as he made clear, his comment was made in the context of the wording of Article 2 FP, which (unlike Article 8) is expressed in purely negative terms. I do not understand him to have been saying, nor would I regard it as correct to say, that a “necessary effect” is an essential part of the Petrovic test. As I read it, paragraph 27 represents, not the enunciation of a legal test as such, but the Court’s identification of facts of the particular case, to which the established tests (summarised in paragraph 28) are then applied.

There is much Strasbourg jurisprudence on the meaning of “possessions” in Article 1 FP. It has long been accepted that state benefits under a contributory scheme are within the article. Recently, in Stec v UK (decision of 6 July 2005), the Grand Chamber took the opportunity to resolve previous doubts, by holding that non-contributory benefits were to be treated in the same way. The position was explained thus:

“54.

… [Art. 1 FP] does not create a right to acquire property. It places no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme … If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of [Art. 1 FP] for persons satisfying its requirements …

55.

In cases … concerning a complaint under Article 14 in conjunction with [Art. 1 FP] that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test iswhether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question …. Although Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14. ..” ([54]-[55] emphasis added)

If that is the relevant test, then Article 1 FP would present no difficulty to the appellants in this case. But for the condition requiring the funeral to be in the UK, they would have had an enforceable right to the payment. However, Mr Sales says that the test cannot be read literally, since to do so would involve direct conflict with other recent Strasbourg jurisprudence. For example, in Von Maltzan v Germany (2006) 42 EHRR SE11, decided by the Grand Chamber only a few months before Stec, the Court reaffirmed the principles derived from the case-law under Article 1 FP. Those principles establish that the article “does not guarantee a right to acquire property”, and that the term “possessions” encompasses existing assets or “legitimate expectations”, but not “the hope of recognition of a property right which it has been impossible to exercise effectively” or “a conditional claim”. Mr Sales submits, and I agree, that the test enunciated in Stec,read literally, is in conflict with those principles. He suggests that some further qualification has to be read in to the Stec test, to the effect that the claim must be within “the spirit and intendment” of the scheme.

Mr Drabble submits that Stec must be taken as settling the matter as regards social security payments. How, if at all, it is to be reconciled with other cases in different factual contexts, may have to be tackled by the Strasbourg court in the future, but is no reason for departing from it in the present case. Fortunately it is unnecessary to resolve this conflict. I would only comment that Mr Sales’ suggested qualification has no apparent foundation in the language used by the Court in Stec. Nor is it clear to me why it is said that the present appellants are outside the “spirit and intendment”, however defined.

For these reasons, I would dismiss these appeals.