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Neutral Citation Number:	2009 43
Reported Number:	R(IS)7/09
File Number:	CIS 1132 2006
Appellant:	CM
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge A. Lloyd-Davies
Date Of Decision:	10/02/2009
Date Added:	09/03/2009
Main Category:	Human rights law
Main Subcategory:	article 14 (non-discrimination)
Secondary Category:
Secondary Subcategory:
Notes:	Human rights – Article 14 – whether denial of income support to pregnant student indirect discrimination The claimant was a student nurse in receipt of an NHS bursary. She had to interrupt her course because of pregnancy and her bursary stopped. Her claim for income support was refused on the ground that she was a “full-time student” within the definition in regulation 61(1) of the Income Support (General) Regulations because she had not abandoned her course or been dismissed from it (regulation 61(2)(b)). She appealed to an appeal tribunal, arguing that regulation 61(2)(b) should be disapplied in her case as it was discriminatory contrary to Article 14 of the European Convention on Human Rights, taken with Article 1 or 2 of Protocol 1. The tribunal found that there was insufficient evidence placed before it to demonstrate that intercalating women students were disproportionately discriminated against by the income support regulations. The claimant appealed. Held, allowing the appeal, but substituting a decision to the same effect, that: 1. the tribunal had erred in failing to consider a submission on behalf of the claimant which argued that statistical evidence was not a prerequisite to establishing indirect discrimination in a human rights context, referring to O’Flynn v CAO [1998] ICR 608 and Secretary of State for Work and Pensions v Bobezes [2005] EWCA Civ 111 (reported as R(IS) 6/05) (paragraph 9); 2. the right to claim a non-contributory social security benefit such as income support was within the scope or ambit of Article 1 of Protocol 1 to the Convention so as to enable Article 14 to be engaged following R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 AC 311, where it was held that the decision in Stec v United Kingdom (2005) 41 EHRR SE18 was, notwithstanding certain Court of Appeal authority to the contrary, to be followed in the United Kingdom (paragraph 10); 3. the case did not fall within Article 2 of Protocol 1 (right to education) as there had been no denial of the right to education and the funding arrangements available for tertiary education did not fall within the ambit of Article 2 unless they had been specifically designed to discriminate against a particular category of person (R (Douglas) v North Tyneside Metropolitan Borough Council [2003] EWCA Civ 1847 followed) (paragraphs 11 to 14); 4. statistics were not a necessary pre-condition to determining whether there was indirect discrimination in this case (AL (Serbia) v Home Secretary [2008] UKHL 42 and DH and others v The Czech Republic (2008) 47 EHRR 3 followed) and, the Secretary of State having conceded that pregnancy was an “other status” for the purposes of Article 14, the question was whether there was an objective and reasonable justification for disentitling pregnant intercalating students from income support (thereby distinguishing them from students who intercalate for other reasons) (paragraphs 17 and 18); 5. the policy behind the regulatory structure was that students who intercalate for essentially transient reasons (even through no fault of their own) should not receive benefit, but should rely on such support as might be available from the education authorities concerned, and there was objective and reasonable justification for the inclusion of intercalating students during the later term of their pregnancy within that policy (paragraph 21); 6. (obiter) to bring the claimant within paragraph 14 (relating to pregnancy) of Schedule 1B would entail a positive legislative change, which no court or tribunal could make, and it was doubtful whether, if a breach of Article 14 were found, a statutory tribunal could give declaratory relief (such as that granted by the Court of Appeal in Francis v Secretary of State for Work and Pensions [2005] EWCA Civ 1303 (reported as R(IS) 6/06)) (paragraph 31).
Decision(s) to Download:	R(IS)_7-09bv.doc