Carson & Another v Secretary of State for Work and Pensions [2003] EWCA Civ 797[1] was heard in the Court of Appeal (Civil Division) in the Supreme Court on 17 June 2003 before Lord Justice Brown, Lord Justice Laws, and Lord Justice Rix.
Two separate High Court cases were brought together for the purposes of this appeal: R (Carson) v Secretary of State for Work and Pensions & Another, from the Administration Court of the Queens Bench Division of the High Court of Justice in England and Wales before The Honourable Mr. Justice Burnton, and R (Reynolds) v Secretary of State for Work and Pensions,[2] from the Administration Court of the Queen's Bench Division of the High Court of Justice in England and Wales before Mr. Justice Wilson.
The two litigants in this case were Annette Carson and Joanne Reynolds.
This case was a UK labour law and Human Rights Act 1998 case on "right to property" under Article 1 of the First Protocol (Protection of Property)[3] and Article 14 of the convention (Prohibition of Discrimination).[4] In Reynolds's case, there was also Article 8 – the right to respect for "private and family life" to consider.
Background
Carson contended that the failure of the UK Government to pay the annual inflationary increase to the UK State Pension in some countries but not others contravened the European Convention on Human Rights (ECHR) and that she and many others were being discriminated against. She had found that the annual increase to the UK State Pension is payable in countries like the UK, the European Economic Area (EEA) and a number of disparate countries (the United States, for example), whilst not being payable in predominantly Commonwealth countries such as Australia, Canada, New Zealand and South Africa.[5] Carson claimed that under Article 1 her state pension, or alternatively its uprating, are "pecuniary rights", and therefore “possessions” within the meaning of Article 1 of the First Protocol and Article 14. In her original case, Justice Burnton had found in favour of the UK Government, citing that the judiciary should not override legislative UK government policy.
Reynolds was born on 9 November 1976. When she left school she began work and continued to work until she was made redundant on 12 October 2000. Whilst she was working she paid National Insurance Contributions. On 24 October 2000 she applied for Jobseeker's Allowance and it was paid with effect from that date. There are two different types of Jobseeker's Allowance - “JSA(C)” which is based on National Insurance Contributions paid over a prescribed minimum period and is not means-tested - the other “JSA(IB)” is income-based and a Means-tested benefit. Reynolds was paid the lesser of the two amounts and therefore was taking civil action against the UK Government saying that the UK Government's action was incompatible with Article 1 of the First Protocol to the convention; and under Article 14 of the convention she claimed she was being discriminated against because of her age; and under Article 8 of the ECHR (respect for her private life and her home); and finally her right not to be subjected to degrading treatment under Article 3 of ECHR (the prohibition of torture, and "inhuman or degrading treatment or punishment").
Reynolds could not return to work so instead of receiving the Job Seeker's Allowance she received Income Support which continued to be paid to her. She was under 25 at the time and lived in social housing. She received £41.35 a week and if she was over 25 she would have received £52.20 per week. The UK Government said that 18- to 24-year-olds earn less and mostly do not live independently. They should be discouraged from living independently and there is welfare support for this group in other ways.
Carson contended that Regulation 3 of the Social Security Benefits Uprating Regulation was "repugnant" to Article 14 of the Convention in conjunction with Article 1P because it discriminated against her based on the fact that she had relocated to South Africa for work purposes.[1]para 15 In addition, it was beyond the powers of this Regulation in violation of Article 14 read in conjunction with Article 1P because it discriminated against Carson on grounds of her "place of residence" without any "objective and reasonable justification". The Regulation also constituted a violation of Article 1P taken on its own.
The UK Government claimed that, in the original hearing, Justice Burnton should have dismissed the case from the beginning, since there was certain evidence that should not have been introduced in regard to Article 1: "a signatory State is only obliged to secure the Convention rights for the benefit of persons residing within its territorial jurisdiction". However, Justice Burnton had stated that Article 1 did not operate so as to bar Carson's claim.
The UK Government stated that it would cost at least a £100 million to uprate the state pension universally, that this would have to come out of general taxation, and would deprive pensioners living in the UK from future increases because there would be no funds available which the court accepted. However, Carson contended that "cost should not constitute a legitimate justification".[1]paras 70 & 71
Lord Justice Laws concluded that Article 1P on its own, had not been violated.[1]para 23, and in his opinion the most important aspect was whether Article 14 read with Article 1P was violated.[1]para 16 He concluded, based on the facts of the case, that he could not see how any exercise of Article 1P right was involved such as might engage Article 14.[1]para 33
Lord Justice Laws then considered Article 14 read with Article 1 of the First Protocol, with regard to Carson's "place of residence", and in that aspect, he was not convinced that there was any discrimination at all.
Looking at Article 14 on its own, Carson was asked if they could find a similar cohort of pensioners to her where they were given the annual uprating and thereby showing that she was being discriminated against. Carson identified two such groups:[1]para 51 - namely, pensioners, who like Carson lived abroad, but in countries where the annual uprating was being paid, and pensioners living in the UK, all of whom are paid the annual uprating to their UK state pension.
The UK Government's position had always been:
Successive Governments have taken the view that the level of increases in retirement pensions relates to conditions in the UK and that it would not be right to impose an additional burden on contributors and taxpayers in the UK in order to pay pension increases to people who have chosen to become resident elsewhere in the world....motions to pay the annual uprating to Carson (and others in her position) were submitted to both Houses of Parliament in June and July 1995 during the passage of the Pensions Bill, which called for uprating to be paid. All were defeated by large majorities.[1]para 52
The UK only uprates the state pension where there is a legal liability to do so - this includes all UK pensioners living in the UK, the EEA, and a number of other countries where there are bilateral social security agreements in place, Whilst there are bilateral agreements with Australia (1953), New Zealand (1956) and Canada (1959), they did not include the uprating of the UK state pension. Australia cancelled its agreement with the UK in 2001 because the UK Government would not uprate the State Pension for those UK pensioners who had emigrated to Australia. This was not an issue when the UK joined the EEC since bilateral agreements were in place for all of the EEC countries except Denmark. These bilateral agreements did facilitate the uprating of the UK State Pension.[1]para 53
Lord Justice Laws conceded that the current situation was "haphazard", quoting statements made by the UK Minister of StateJeff Rooker on 13 November 2000:
"I have already said I am not prepared to defend the logic of the present situation. It is illogical. There is no consistent pattern. It does not matter whether it is in the Commonwealth or outside it. We have arrangements with some Commonwealth countries and not with others. Indeed, there are differences among Caribbean countries. This is an historical issue and the situation has existed for years. It would cost some £300 million to change the policy for all concerned...".[1]para 54 Lord Justice Laws concluded that the UK Government would not need to create new bilateral agreements in order to uprate the State Pension universally.[1]para 66 However, giving the "annual uprating", or taking it away is entirely a rightful decision by the UK Government.[1]para 67 Based on literature produced by the DSS, Carson had no right to expect her State Pension to be uprated, given her decision to relocate to South Africa for work purposes.[1]para 68 Lord Justice Laws referred to R v DPP, ex p. Kebilene.[1]para 73
In some circumstances it will be appropriate for the courts to recognize 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.
Lord Justice Laws dismissed Carson's appeal, and he quoted from Corner v United Kingdom (Application No. 11271/84, decision of 17 May 1985, unpublished):[1]para 74
The Commission has held that the 'freezing' of a pension at a particular level when a person leaves the United Kingdom does not amount to a deprivation of possessions infringing Article 1 of the Protocol. (Dec. No. 9776/82, 10.83 to be published in D.R. 34). Moreover, the different treatment of persons entitled to pensions who remain in the country of payment compared with those who emigrate is justified on the grounds that the applicant will only lose the benefit of future increases in the pension, whose purpose broadly speaking is to compensate for rises in the cost of living in the United Kingdom and which the applicant will not have to endure (Dec. No. 9776/82, loc. cit.). The Commission also considers that the economic state of third countries is not a matter which domestic pension authorities should be obliged to consider.
Reynolds
Reynolds had been given leave to appeal on a limited basis. There were no grounds to support her case regarding Articles 3, 8 or Article 1P, but taking Article 14 with Article 1P, she may have a supportable case for arbitrary discrimination.[1]para 14. Justice Laws determined that "income support" did constitute a "possession" as far as Article 1P was concerned.[1]para 17
With regard to Article 14 read with Article 8, Lord Justice Laws believed that no argument could be made to support Reynolds' claim when taking these two Articles together.[1]para 29 The next question he considered was whether Income Support was a "possession" with regard to Article 1P for the purpose of Article 14.[1]para 30, and he concluded that Article 1P on its own, had not been violated.[1]para 23
Lord Justice Laws then considered Article 14 read with Article 1 of the First Protocol, with regard to Reynolds's claim of age discrimination[1]para 30
Lord Justice Laws then determined that there had been a violation of Article 14 taken with Article 1P but only as far as the Job Seekers Allowance" was concerned. With respect to "income support", there was no violation.[1]paras 38-49
Lord Justice Laws dismissed Reynold's appeal because "in my view, the Secretary of State has demonstrated a perfectly reasonable justification for the differential payments of Job Seeker's Allowance."
Carson and Reynolds
In Lord Justice Law's opinion with both of the appeals, the most important aspect was whether Article 14 read with Article 1P was violated.[1]para 16
The UK Government argued that Article 1P only applies to a person's existing possessions, and that it does not include the right to "acquire" possessions at a future date. In addition they also contended, that the amount of the benefit "cannot constitute an interference with the right given by Article1P, rather it merely defines the property right". This position has been consistently supported by the courts in the European Union.[1]paras 18 & 19
If Carson was not discriminated based on her "place of residence" and Reynolds was not discriminated against based on her age, was there an objective and reasonable justification for such discrimination?
Lord Justice Rix agreed with Lord Justice Laws, in dismissing both appeals, as did Lord Justice Brown, and leave was not given to appeal to the House of Lords refused.
On 17 July 2003, Carson was given leave to appeal to the House of Lords.[6]
Cited as: [2003] 3 All ER 577, [2003] HRLR 36, [2003]EWCA Civ 797
Citations
Marckx v Belgium [1979] 2 EHRR 330;[7]Muller (1975) 3 DR 25; X v Italy (Application No 7459/76); JW and EW v UK (Application No 9776/82); Corner (Application No 11271/84; Gaygusuz v Austria (1996) 23 EHRR 364; Szrabjer and Clarke v UK (October 1997: Applications 27004/95 and 27011/95); Willis v UK (June 2002: Application No 36042/97); Carlin v UK (December 1997: Application No 27537/95); Chapman v UK (2001) 33 EHRR 18;[8]Vaughan v UK (1987) Application No 12639/87; Anderson and Kullmann v Sweden 46 DR 251; Petrovic v Austria [2001] 33 EHRR 14,[9] paragraph 26; Abdulaziz & ors v UK (1985) 7 EHRR 471,[10] paragraph 67; Belgian Linguistics (No 2) (1968) 1 EHRR 252,[11] 283; Botta v Italy (1998) 26 EHRR 241,[12] paragraph 34; Walden v Liechtenstein (2000: Application No 33916/91); Matthews v UK (2000: Application No 40302/98); Shackell v UK (2000: Application No 4851/99); R. (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] 2 WLR 1389;[13]Jankovic v Croatia (2000) Application No 43440/98; Wessels-Bergervoet v Netherlands (Application No 34462/97)); Szrabjer & Clarke v UK (Applications Nos 27004/95 and 27011/95); Belgian Police v Belgium 1 EHRR 578, 590 – 591 (paragraph 38); Michalak v London Borough of Wandsworth [2003]1 WLR 617 (paragraph 20); Human Rights: The 1998 Act and the European Convention (2000); Aston Cantlow v Wallbank [2002][14] Ch 51; Stubbings v United Kingdom (1996) 23 EHRR 213,[15] 238; Nasser v United Bank of Kuwait [2001] EWCA Civ 556[16] at [56], [2002] 1 AER 401; Moustaquim 13 EHRR 801; Schaffter [1987] IRLR 53; Mendoza [2002] EWCA Civ 1533;[17]Prolife [2003] UKHL 23;[18]Sporrong & Lonnroth (1982) 5 EHRR 35; James v UK (1986) 8 EHRR 123;[19]R v DPP, ex p. Kebilene [2000] 2 AC 326;[20]
The European Convention on Human Rights is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the convention and new members are expected to ratify the convention at the earliest opportunity.
United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK have a minimum set of employment rights, from Acts of Parliament, Regulations, common law and equity. This includes the right to a minimum wage of £10.42 for over-23-year-olds from April 2023 under the National Minimum Wage Act 1998. The Working Time Regulations 1998 give the right to 28 days paid holidays, breaks from work, and attempt to limit long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act 1995. Workers must be able to vote for trustees of their occupational pensions under the Pensions Act 2004. In some enterprises, such as universities or NHS foundation trusts, staff can vote for the directors of the organisation. In enterprises with over 50 staff, workers must be negotiated with, with a view to agreement on any contract or workplace organisation changes, major economic developments or difficulties. The UK Corporate Governance Code recommends worker involvement in voting for a listed company's board of directors but does not yet follow international standards in protecting the right to vote in law. Collective bargaining, between democratically organised trade unions and the enterprise's management, has been seen as a "single channel" for individual workers to counteract the employer's abuse of power when it dismisses staff or fix the terms of work. Collective agreements are ultimately backed up by a trade union's right to strike: a fundamental requirement of democratic society in international law. Under the Trade Union and Labour Relations (Consolidation) Act 1992 strike action is protected when it is "in contemplation or furtherance of a trade dispute".
In English law, natural justice is technical terminology for the rule against bias and the right to a fair hearing. While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general "duty to act fairly".
Mary Howarth Arden, Baroness Mance,, PC, known professionally as Lady Arden of Heswall, is a former Justice of the Supreme Court of the United Kingdom. Before that, she was a judge of the Court of Appeal of England and Wales.
The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person. It is based on the principles of natural justice and fairness, and seeks to prevent authorities from abusing power.
Reynolds v Times Newspapers Ltd was a House of Lords case in English defamation law concerning qualified privilege for publication of defamatory statements in the public interest. The case provided the Reynolds defence, which could be raised where it was clear that the journalist had a duty to publish an allegation even if it turned out to be wrong.
Aerotel v Telco and Macrossan's Application is a judgment by the Court of Appeal of England and Wales. The judgment was passed down on 27 October 2006 and relates to two different appeals from decisions of the High Court. The first case involved GB 2171877 granted to Aerotel Ltd and their infringement action against Telco Holdings Ltd and others. The second case concerned GB application 2388937 filed by Neal Macrossan but refused by the UK Patent Office.
Campbell v Mirror Group Newspapers Ltd[2004] UKHL 22 was a House of Lords decision regarding human rights and privacy in English law.
Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society". The European Convention on Human Rights (ECHR) is an international treaty to protect human rights and fundamental freedoms in Europe.
R (Carson) v Secretary of State for Work and Pensions and R v Secretary of State for Work and Pensions were a series of civil action court cases seeking judicial review of the British government's policies under the Human Rights Act 1998. They related to the right to property under Article 1 of the First Protocol and prohibition of discrimination under Article 14 of the convention. In Reynolds's case, there was also Article 8 of the European Convention on Human Rights (ECHR), the right to respect for "private and family life" to be considered, as well as Article 3 of the ECHR, the prohibition of torture, and "inhuman or degrading treatment or punishment".
Shahram Taghavi is a barrister practising in the United Kingdom. He is a specialist in Judicial Review, Human Rights, Immigration and EU law. He was called to the England & Wales bar in 1994. He is a partner at Article 1, a law firm specialising in immigration, EU freedoms of movement and human rights law. He practised as an independent barrister at Doughty Street Chambers specialising in human rights, immigration and public law. He was joint head of the Human Rights and Public law departments and head of the Immigration department at Simons Muirhead & Burton solicitors. He was a Senior Barrister at Bates Wells & Braithwaite LLP as a member of their Public & Regulatory, Human Rights and Immigration departments, Deputy Head of Human Rights and Immigration at Lewis Silkin LLP, Head of Human Rights and Immigration at Charles Russell LLP and National Head of Immigration and Human Rights at Grant Thornton LLP.
The doctrine of legitimate expectation in Singapore protects both procedural and substantive rights. In administrative law, a legitimate expectation generally arises when there has been a representation of a certain outcome by the public authorities to an individual. To derogate from the representation may amount to an abuse of power or unfairness. The doctrine of legitimate expectation as a ground to quash decisions of public authorities has been firmly established by the English courts. Thus, where a public authority has made a representation to an individual who would be affected by a decision by the authority, the individual has a legitimate expectation to have his or her views heard before the decision is taken. Alternatively, an individual may also have a legitimate expectation to a substantive right. The recognition of substantive legitimate expectations is somewhat controversial as it requires a balancing of the requirements of fairness against the reasons for any change in the authority's policy. This suggests the adoption of a free-standing proportionality approach, which has been said not to apply in administrative law.
R v Horncastle & Others[2009] UKSC 14 was a decision of the Supreme Court of the United Kingdom regarding hearsay evidence and the compatibility of UK hearsay law with the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). The case represents another stage in the judicial dialogue between the European Court of Human Rights (ECtHR) and the higher courts of the United Kingdom about whether it is acceptable to base convictions "solely or to a decisive extent" on evidence made by a witness who is identified but does not appear in court.
Ladele v London Borough of Islington [2009] EWCA Civ 1357 is a UK labour law case concerning discrimination against same sex couples by a religious person in a public office.
Sir Nicholas Edward Underhill, styled The Rt Hon. Lord Justice Underhill, is a British judge of the Court of Appeal of England and Wales.
R (Carson) v Secretary of State for Work and Pensions & Another [2002] EWHC 978 (Admin) was heard in the Administration Court of the Queen's Bench Division in the High Court of Justice on 22 May 2002 before the Honourable Mr. Justice Burnton.
R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 was heard by the Lords of Appeal in the House of Lords on 26 May 2005 before Lord Nicholls, Lord Hoffmann, Lord Rodger, Lord Walker, and Lord Carswell.
Carson and Others v The United Kingdom [2008] ECHR 1194 was heard by the European Court of Human Rights (ECHR), Fourth Section in Strasbourg on 4 November 2008 appeal from the Appellate Committee of the House of Lords before Lech Garlicki (President); Nicolas Bratza; Giovanni Bonello; Ljiljana Mijović; David Thór Björgvinsson; Ledi Bianku; Mihai Poalelungi.
Carson and Others v The United Kingdom [2010] ECHR 338 was heard by the European Court of Human Rights (ECHR), in Strasbourg on 16 March 2010 on appeal from the European Court of Rights (ECHR), Fourth Section before Jean-Paul Costa (President), Christos Rozakis, Nicolas Bratza, Peer Lorenzen, Françoise Tulkens, Josep Casadevall, Karel Jungwiert, Nina Vajić, Dean Spielmann, Renate Jaeger, Danutė Jočienė, Ineta Ziemele, Isabelle Berro-Lefèvre, Päivi Hirvelä, Luis López Guerra, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva.
This page is based on this Wikipedia article Text is available under the CC BY-SA 4.0 license; additional terms may apply. Images, videos and audio are available under their respective licenses.
