Birmingham Law Centre Blog

By Trevor Allsopp and Michael Bates

Birmingham Law Centre granted permission to seek Judicial Review challenging compatibility of UK Census with Human Rights and European Union law

A client of Birmingham Law Centre has been granted permission for a Judicial Review in the High Court seeking a declaration that section 39 (4)(f) of the Statistics and Registration Service Act 2007 (SRSA 2007) is incompatible with the European Convention of Human Rights (ECHR) and European Union law. It is a test case which raises important points of law of significant wider public interest concerning the protection of fundamental rights.  Michael Bates from Birmingham Law Centre said:

‘This case has the potential to significantly impact on the future of public contracts between the UK government and US companies.’

The Law Centre’s client, a longstanding privacy campaigner, refused to take part in the 2011 Census. Our client describes himself as, “an anti-database campaigner and someone who does regard himself as an activist in ensuring the preservation of liberty and privacy.”  He has completed the census in the past but believes that the 2011 census was materially different because of the potential for his personal information to be disclosed to third parties without adequate safeguards being in place.

In August 2008 Lockheed Martin was awarded the contact to run the census. The company is an American organisation with global aerospace, defence and security concerns and is one of the world’s largest defence contractors. The company has statutory obligations under the USA Patriot Act 2001 and carries out a significant amount of work for the CIA and FBI.

Lockheed Martin is heavily involved in surveillance and ‘cyber security’. It provides surveillance/data processing for the CIA and FBI. A new ‘Security Intelligence Centre’ at Farnborough was opened at the beginning of December 2011. Lockheed Martin Corporation is the lead company behind the current US government Next Generation Identification (NGI) initiative in which $1.6 billion is being spent on biometric developments that will allow many aspects of an individual’s private characteristics to be gathered and stored.

The vice-president Lockheed Martin is quoted as having said, “We want to know what’s going on any time, any place on the planet.”

Our client is concerned that there are no safeguards in place to prevent his information being disclosed and used for purposes other than those intended. Of particular concern is the United States legislation which permits the administration to obtain personal information on the grounds that there is a risk to the US national security.

The SRSA 2007 prohibits the disclosure of personal information collected during the census exercise unless one of the exemptions in section 39(4) applies. Section 39 (4)(f) exempts disclosure which is made for the purposes of a criminal investigation or criminal proceedings (whether or not in the United Kingdom).

By refusing to complete and return his census form our client faces the real possibility of being prosecuted under section 8 of the Census Act 1920 (CA 1920). Since 2012 some 369 cases have been referred to the CPS for prosecution of which at least 120 are reported to have been convicted for failing to complete and return their census form. Section 8 of the CA 1920 contains no defence and is a strict liability offence. A declaration is also being sought that a prosecution, in our client’s circumstances, under the CA 1920 is an abuse of process.

Our client is primarily relying on Article 8 of the ECHR, the right to respect for private and family life. He believes that his Article 8 rights are not protected for reasons which include; (a) there is no provision for advance notification of a disclosure request; (b) there is no court scrutiny or other independent supervision which the requesting state must first satisfy in seeking disclosure; (c) there are no guidelines as to when and how such disclosure will be made; (d) there is no provision to allow a person to object to the disclosure and to challenge it before an independent and impartial tribunal; (e) the disclosure of personal information may be made in any circumstances, even on suspicion of committing a minor crime; (f) there is no safeguard as to what use may be made of the personal information by the authorities in the requesting state.

It is also argued that European Union law, in particular Council Directive 95/46/EC and Regulations 45/2001/EC support our client’s case.  His fundamental rights and freedoms, in particular the right to privacy with respect to the processing of personal data, require protection. However, section 39(4)(f) provides no basis for an independent enquiry of the legitimacy of disclosure of his personal data.

We will provide updates as the case progresses in future articles. Please contact Trevor Allsopp or Michael Bates at the Law Centre if you would like to know more about the case, or if you have relevant information to share.

By Jan Jesson

We are delighted with the Court of Appeal ruling on our Article 14 challenge in respect of our client , the late Miss Lucy Trengove.  See here for the full judgement.  As reported in our post of 18 ^th March, the statutory appeal for local housing allowance, joined with the cases for Ian Burnip and Richard Gorry, challenged the discriminatory impact on severely disabled persons needing an additional bedroom of Regulation 13 (D) of the Housing Benefit Regulations 2006.

Although the legislation had been amended from 11/4/11 to make provision for an additional bedroom when a severely disabled person needs to accommodate overnight carers, the appeals in the first 2 cases concerned the period prior to the legislative amendment, when no provision was made for them, and in the case for Richard Gorry, whose two disabled daughters need separate bedrooms of their own, the additional housing need remained unprovided for.

In a significant ruling, the Court of Appeal unanimously held that –

(1) the appellants have established a prima facie case of discrimination pursuant to Article 14 and (2) for the reasons set out in the judgment of Henderson J, the Secretary of State has failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria . (Kay LJ, paragraph 24)

It was common ground that ‘disability’ was a status falling with Article 14, and that housing benefit falls within the ambit of Article 1 of Protocol 1 as a ‘possession’.  Richard Drabble QC submitted for the Appellants that one way or another, the statutory criteria have a disparate adverse impact on the disabled, or failed to take account of the differences between disabled and able-bodied persons.  Citing DH v Czech Republic (2008) 47 EHRR 3 and Thlimmenos v Greece (2001) 31 EHRR, the different approaches were described as complimentary and overlapping, rather than mutually exclusive.

The Court had no difficulty in recognizing the discriminatory impact of the housing benefit regulations, without resort to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which Counsel for the Appellants, and Helen Mountfield QC for the Equality and Human Rights Commission, as Intervener, relied upon, holding (para 22)

If the correct legal analysis of the meaning of Article 14 discrimination in the circumstances of these appeals had been elusive or uncertain (and I have held that it is not), I would have resorted to the CRDP and it would have resolved the uncertainty in favour of the appellants.  It seems to me that it has the potential to illuminate our approach to both discrimination and justification.

The Court rejected arguments on behalf of the Secretary of State that the analysis for the Appellants was flawed because it did not use correct comparators (citing the Malcolm case); the criticism that the Appellant’s case was not founded on statistical evidence; and that the Thlimmenos principle is more limited than is suggested, holding –

· It would be quite wrong to resort to Malcolm so as to produce a restrictive approach to Article 14.  Indeed, one of the attractions of Article 14 is that its relatively non-technical drafting avoids some of the legalism that has affected domestic discrimination law. (para 13)

· On the same basis, I would reject the attempt on behalf of the Secretary of State to criticise the appellants’ case for not being founded on statistical evidence.  Whilst such evidence can be important in an Article 14 case (see, for example, Hoogendjik v Netherlands (2005) 40 EHRR SE 22, at page 207), it is not a prerequisite.  Where, as in the present case, a group recognised as being in need of protection against discrimination – the severely disabled – is significantly disadvantaged by the application of ostensibly neutral criteria, discrimination is established, subject to justification.(para 13)

· Whilst it is true that there has been a conspicuous lack of cases post- Thlimmenos in which a positive obligation to allocate resources has been established, I am not persuaded that it is because of a legal no-go area.

· I can see no warrant for imposing a prior limitation on the Thlimmenos principle.  To do so would be to depart from the emphasis in Article 14 cases which, as Baroness Hale demonstrated in AL (Serbia) (at paragraph 25), is “to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification”.(para 18)

On the question of justification, the Court gives very clear guidance as to the correct approach.

It is elementary that what has to be justified is not the scheme of HB as a whole, or the general policy of calculating HB in the private sector by reference to the number of bedrooms deemed to be needed by “occupiers”, but rather the difference in treatment resulting from the application of those criteria which has been held to infringe Article 14 (para 26)

The submission for the Appellants that ‘very weighty reasons’ would be needed to justify discrimination in the case of congenital disability, was rejected, holding –

Weighty reasons may well be needed in a case of positive discrimination, but there is no good reason to impose a similarly high standard in cases of indirect discrimination, or cases where the discrimination lies in the failure to make an exception from a policy or criterion of general application, especially where questions of social policy are in issue.  As in AM (Somalia), therefore, the proportionality review applicable in the present case must be made by reference to the usual standard, not an enhanced one.

After detailed analysis of the various benefits in payment Henderson J addresses the question whether the wider benefit context provides an objective and reasonable justification for the discrimination found to be established in relation to the amount of housing benefit.  Drawing a clear distinction between subsistence benefits and benefits in respect of housing needs, he concluded -

It would therefore be wrong in principle, in my judgment, to regard Mr Burnip’s subsistence benefits as being notionally available to him to go towards meeting the shortfall between his housing- related benefits and the rent he had to pay. (para 45)

It is not yet known whether the Secretary of State will appeal to the Supreme Court, but we are gratified that the after a three year fight for the rights of our client and disabled people like her, justice has prevailed, and social security law is not ‘human rights-proof’.

The Claimant was represented by Richard Drabble QC and Desmond Rutledge.

By Michael Bates

Perplexity in the High Court on how to apply Zambrano principles as interim relief JR – Sanneh v Secretary of State for Work and Pensions – is refused

Birmingham Law Centre’s groundbreaking Income Support case continues onwards to the Upper Tribunal now that permission to appeal has been granted to the DWP.  In the mean time, however, the High Court has refused permission for a Judicial Review of the decision to suspend our client’s payments of benefit pending the outcome of the Secretary of State’s appeal.

Back in August last year we applied for Interim Payments of Income Support prior to any decision on entitlement.  This was on the basis that our client  was experiencing hardship and that her daughter, an EU citizen, was being prevented from enjoying the substance of her rights as a citizen of the union and would (due to economic pressure) be forced to leave the territory of the EU.  Please see our previous blog posts here and here for details.

The First-tier Tribunal appeal was heard on 28 November last year and the Tribunal Judge agreed with the contention that our client came within the principles of the Zambrano judgement.  The effect of the statutory provisions excluding her from mainstream benefits created a situation where her stay in the UK would become untenable.  As her daughter would have to accompany her abroad, this amounted to denying her daughter the enjoyment of the substance of her rights as a union citizen and therefore breached EU law following the landmark ruling in Zambrano .  The DWP have now lodged an appeal with the Upper Tribunal which we hope will be expedited.

It was clear to us that the claim for Income Support would be resisted and that the proper route to a sustainable challenge was through the statutory appeal process (ie, the tribunal).  However, an early decision by the High Court on the lawfulness of refusing Interim Payments would perhaps give us an indication as to how Zambrano principles would be interpreted by the Courts.  Unfortunately, the High Court has decided not to help settle how Zambrano should be applied and, in an interesting judgement, HHJ Purle said that:

‘the precise impact of Zambrano has had a number of us judges scratching our heads and the right is not clearly defined.’

The Secretary of State’s arguments that, ‘ Zambrano is not a right to benefits’, and that any risk to an EU child leaving the territory of the EU must be immediate, seemed to be persuasive.  Our argument has always been that it is the effect of the national measure as opposed to the measure itself that is of fundamental importance and that the lack of means would sooner or later lead to a situation where our client would be forced to leave the UK.   Indeed, it was this more nuanced approach that was taken by the First-tier Tribunal.

The case before the High Court changed character as time had passed.  The claim for Interim Payments gave way to a claim against the Secretary of State’s decision to suspend benefit whilst he considered an appeal to the Upper Tribunal: a subtle but important difference. Our client has recently lost the Child Tax Credit that she had been receiving and is now being housed in emergency accommodation arranged for her by Birmingham Children’s Services.  She currently has an income of £56.53 per week that is not being topped up by Birmingham.  By anyone’s standards, this is hardship and has an undeniably detrimental effect on her and her daughter.  However, the Judge held that he would only take into account the circumstances pertaining at the time of the decision to suspend payment of benefit, when she was receiving Child Tax Credit.  The Judge also made reference to the Secretary of State’s offer to reconsider the suspension in light of these changed circumstances.

Of course, it was never for the High Court to decide the substance of the claim for Income Support but the Judge had to look at whether we had a strong enough case to challenge the decision to suspend payment of the the award of Income Support made by the tribunal and so to properly assess the balance of convenience in order to grant interim relief.  He decided that our case did not overcome the first hurdle and that it was not sufficiently arguable stating that:

‘Given that the Claimant was living sustainably though not lavishly at the time the decision to suspend benefit was made, it seems to me that the potential challenge to the letter of 15 December does not get off the ground.’

We believe that our argument that, on the basis of Factortame , our client’s daughter’s EU rights should be effectively safeguarded has not been given sufficient weight and we are actively considering an appeal to the Court of Appeal.

The Claimant was represented by Desmond Rutledge of Garden Court Chanbers.