Menu My portfolio: 0

Court: Administrative Court

Court upholds lawfulness of Loans for Mortgage Interest scheme

JD and Vincent v Secretary of State for Work and Pensions [2020] EWHC 1976 (Admin)

As part of the coalition government’s welfare reforms, Support for Mortgage Interest, a benefit paid to assist those on other income-related benefits with the interest they were required to pay on their mortgage, was replaced with Loans for Mortgage Interest, which provides the same level of support, but which has to be repaid on sale of the relevant property or death. Two groups of disabled claimants brought challenges to the new scheme on the grounds that it was discriminatory contrary to Article 14 ECHR and under the Equality Act 2010, and for failure to comply with the public sector equality duty.

The first set of claimants were severely disabled women suffering from multiple sclerosis whose partners were in receipt of Carer’s Allowance, as well as one of their children. They contended that the scheme as a whole, alternatively the requirement to repay on sale failed, without objective and reasonable justification failed to treat differently disabled people with partners in receipt of CA and/or those with dependent children, contrary to the Thlimmenos principle under Article 14 ECHR, read together with Article 3 of the UN Convention on the Rights of the Child. In respect of this claim, the Court (Mrs Justice Andrews) held that the move from a benefit to a loan did not fall within the ambit of any Convention rights and so Article 14 was not engaged in that respect. Further, the Court did not consider that the Claimants were in a significantly different position to the comparator class, which includes many other people who would only be able to repay the loan on sale and for whom that could also cause hardship. The Court also considered that the best interests of children had been appropriately considered in accordance with the UNCRC.

The second claim was brought on behalf of a man with multiple physical and learning disabilities who lacks capacity. On his behalf it was contended that the automatic nature of the repayment on sale requirement discriminates against disabled people, or those at an enhanced risk of needing to move because of their disability-related needs. In respect of this claim, the Court considered that the automatic nature of the repayment on sale requirement was justified as not manifestly without reasonable foundation. It also held that disabled persons at enhanced risk of having to move was too nebulous a group to constitute a “status” for the purposes of Article 14 ECHR. The PSED challenge in both cases was rejected on the basis that the government had had the requisite due regard when formulating the new scheme.

High Court rules that procedural protections under Article 6 apply to a challenge to conditions imposed on suspected Al- Qaeda affiliate

QX v Secretary of State for the Home Department [2020] EWHC 1221 (Admin)

The claimant, QX, is a British national. In 2018, the Secretary of State applied to the court for a Temporary Exclusion Order under the Counter-Terrorism and Security Act 2015 on QX for two years on grounds of national security. The Secretary of State had determined that QX had travelled to Syria and was aligned with a group that is aligned to Al-Qaeda thereby demonstrating “a high level of commitment to the ideology and aims” of the organisation. His return was considered to pose various risks to the public. QX applied for a review of two of the obligations imposed on him after his return to the UK: having to report daily to a named police station and attending weekly mentoring sessions under the Home Office Desistance and Disengagement Programme.
QX brought proceedings on the basis that these reporting and mentoring requirements interfered with his Article 8 rights and engaged Article 6. The High Court held that Article 6 was engaged and that the obligations were sufficiently onerous to interfere with the right to private life under Article 8. However, the judge ruled that it would be premature to definitively rule on whether Article 6 (1) had been breached in this case as this was a question which would be better left to or at the substantive hearing.

High Court rules that student finance regulations discriminate against domestic violence survivors

OA v Secretary of State for Education [2020] EWHC 276 (Admin)

The High Court has today ruled that a survivor of domestic violence was unlawfully refused a student loan and that the current student finance regulations discriminate against victims of domestic violence. The court ruled there was a breach of her ECHR, article 14 and article 2 of the first protocol.

The claimant’s ex-partner had withheld her immigration documents. This led to her spousal visa not being renewed in time and led to the client remaining unlawfully in the UK for nearly a year through no fault of her own.

She was later granted indefinite leave to remain as a victim of domestic violence. But the gap in ‘lawful residency’ caused by her ex-partner’s abuse led to her being precluded by the current education regulations from obtaining a student loan.

Without student funding, she incurred significant debt with her university and was forced to withdraw from her studies.

Not for court to rule on whether Parliament should include Sikh ethnic group’ tick box on Census

R (Gill on behalf of the Sikh Federation) v The Cabinet Office [2019] EWHC 3407 (Admin)

The Sikh Federation has campaigned for the inclusion of a Sikh ethnic group tick box response in the census, in the hope that funding and public services will then be more effectively focused on meeting the needs of the Sikh community.  In this case, they applied for judicial review of “the contemplated exercise of Her Majesty’s discretion to direct a census based on an Order in Council, which does not include a Sikh ethnic tick box”.

Held: The claim is dismissed on the ground that it is premature, and in breach of parliamentary privilege and the constitutional convention of the separation of powers. If the Court were to rule that it would be unlawful for Her Majesty to not include a Sikh ethnic tick box, it would be a clear interference with the Queen in Council’s law-making function, contrary to the constitutional convention of the separation of powers. 

There is a fundamental constitutional distinction between the Court reviewing the lawfulness of an Order in Council once it has been made, and the Court making a declaration which curtails the Queen in Council’s exercise of discretion when making law. This is not an exceptional case which justifies any departure from the general rule that this Court will respect the separation of powers and so not interfere with Parliamentary proceedings.

Home Office’s approach to victims of trafficking found to be unlawful

JP and BS v Secretary of State for the Home Department [2019] EWHC 3346 (Admin)

In this case the High Court decided that the Home Office’s approach to protecting victims of trafficking is unlawful.

The test case was brought by two victims of trafficking, who challenged the lawfulness of the Secretary of State’s policy that, in the case of a victim of trafficking who is also making an application for asylum, the Secretary of State will not determine the victim’s application for a residence permit under Article 14(1) of ECAT before making a decision on the asylum application.

The court held that the Defendant breached the rights the claimants under Article 14 (read with Articles 4, 8 and A1P1) of the ECHR, contrary Human Rights Act 1998, s6.