Choice and Inequality - Narrowing the reach of Article 14 ECHR

In the recent case of R (RJM) v. Secretary of State for Works and Pensions, the English Court of Appeal has ruled against extending the protection of Article 14 ECHR to the intentionally homeless.  It is submitted that this was an unduly narrow view which, if more widely followed, would risk denying legitimate protection to many vulnerable groups.

Background

31st July 2007

In the recent case of R (RJM) v. Secretary of State for Works and Pensions, the English Court of Appeal has ruled against extending the protection of Article 14 ECHR to the intentionally homeless.  It is submitted that this was an unduly narrow view which, if more widely followed, would risk denying legitimate protection to many vulnerable groups.

Background

Article 14 ECHR provides a potentially powerful route to pursue claims under the Convention in cases where the claimant would not otherwise be able to demonstrate a self-standing breach of Convention rights.  According to settled case law, if a claimant's case falls within the ambit of one of the substantive articles of the Convention, such as Article 1 of Protocol 1 (the right to property), discrimination against the claimant in respect of that right is contrary to Article 14 (the prohibition on discrimination).  The Article 14 right is quite separate from other, domestic, discrimination legislation.
 
Article 14 provides that: “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”.  The reach of Article 14 is, in many respects (e.g. in relation to sex and race), obvious.  However, protection from discrimination under Article 14 also extends to persons of "other status", a somewhat less obvious class.

The concept of "other status" was discussed by Lord Steyn in the 2004 House of Lords decision in R (S) v. Chief Constable of Yorkshire Police in the following terms:

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 […]  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".

Lord Hope, in the 2007 House of Lords judgment in R (Clift) v. Home Secretary added the following important rider:

The function of article 14, read with article 1 of the Convention, is to secure to everyone within the jurisdiction of the High Contracting Parties the enjoyment of the rights and freedoms set out in section 1 of the Convention without discrimination on grounds which, having regard to the underlying values of the Convention, must be regarded as unacceptable. This suggests that a generous meaning should be given to the words ‘or other status’ while recognising, of course, that the proscribed grounds are not unlimited".

Thus the House of Lords in S and Clift has provided a steer to the lower courts that, whilst the reach of Article 14 is not unlimited, it should nonetheless extend to those groups whose personal characteristics, having regard to the underlying values of the Convention, mark them out for protection.

RJM – facts and context

RJM was a 'rough sleeper'.  As a person "without accommodation" within the meaning of the relevant social security rules, RJM was allocated a lower level of income support than that to which he would otherwise have been entitled.  This was because, in the case of those "with accommodation", income support included an element in recognition of the claimant's housing responsibilities.  Others, including RJM, without such responsibilities were thus allocated a lower level of income support.  Instead, the Department of Work and Pensions made additional resources available to homeless persons through other means.

RJM claimed that the allocation of a lower level of income support to him (a decision which engaged his property rights under Article 1 of Protocol 1) amounted to discrimination within the meaning of Article 14 ECHR, since it treated rough sleepers, such as him, less favourably than other claimants without adequate objective justification.  Essential to RJM's case was persuading the court that rough sleepers were a group with "other status" within the meaning of Article 14 ECHR.

The Government itself appeared to accept, in its evidence to the court, that there were significant barriers to the homeless finding work, including a history of drug or alcohol abuse, a criminal background, poor basic skills and lack of work experience.  In addition, the evidence recorded that 90% of the group were male, 40 - 50% had mental health problems, 90% had problems connected with substance misuse (e.g. drink and drugs) and 70% had had a custodial sentence.

The Court of Appeal's ruling

In its submissions to the Court of Appeal, the Government submitted that there were a number of factors which, taken together, pointed away from recognising "other status" in this case, in particular, the fact that homelessness was a status of choice and not a personal characteristic.  These two points certainly appear to have persuaded Sir Anthony Clarke MR who delivered the leading opinion.  In his view:

"As I see it, a chosen status is less likely to satisfy that [i.e. the "other status"] test. This case appears to me to be an example of such a situation. It is not necessary to be without accommodation or homeless. A person who chooses such a lifestyle does not seem to me to be a person who naturally falls within the protection afforded by Article 14. The solution lies in the person’s own hands, namely by seeking and obtaining accommodation.

In the light of the authorities the key point is […]  Is the status of RJM a personal characteristic? In my opinion the natural answer to that question is no. The fact of being without accommodation, especially by choice, does not seem to me to be fairly described as a personal characteristic, any more than say, being a hotelier or a train traveller or living in a bus shelter".

Thus the decision of the Court was that RJM's Article 14 challenge lacked an essential ingredient and so had to fail.

Comment

It is submitted that the ruling in this case is a remarkably harsh one, given the general approach to "other status" developed by the House of Lords as well as the evidence before the court.

It appears to have been accepted by all sides that RJM and other rough sleepers were a particularly vulnerable group, who shared a number of common attributes (e.g. sex and mental health history) and who, collectively, faced significant barriers to finding work.  And yet, the Court of Appeal essentially took the view that the solution to RJM's vulnerability and exclusion lay in his own hands; that is, that RJM could alter his status in the same way as a commuter who chooses to change his travel habits.

In making this assessment, the Court has, it is suggested, significantly overplayed the role of genuine choice in RJM's membership of the homeless or rough sleeping group.  To that extent, it has traded the generous interpretation of "other status" urged by Lord Hope in Clift for a somewhat miserly one.  Those such as RJM will be left to count the cost.