Matrix Judgments & Commentary

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.

Begum granted leave to enter the UK to participate in her appeal

Begum v Secretary of State for the Home Department [2020] EWCA Civ 918

The Court of Appeal (King, Singh and Flaux LJJ, also sitting as a Divisional Court) today handed down judgment in the next stage of Shamima Begum’s challenge to the deprivation of her British citizenship. 

There were two issues in the case: first, what should be the consequence of the finding reached at an earlier hearing by the Special Immigration Appeals Commission (SIAC) and Administrative Court that Ms Begum could not have a fair and effective appeal in her current circumstances; and second, whether SIAC had been wrong in its approach to the question of whether the Secretary of State complied with her policy because the deprivation decision had the direct and foreseeable consequence of exposing Ms Begum to a real risk of mistreatment which would constitute a breach of Article 2 or 3 ECHR (the right to life and the right not to be subjected to inhuman and degrading treatment).

On the first issue, the Court accepted the Secretary of State’s argument that it would be wrong to allow the deprivation appeal without there having been substantive consideration of the Secretary of State’s national security case, but agreed with Ms Begum that her appeal should not be stayed (or proceed without her participation) as had been suggested by SIAC, since that would compound the unfairness she faces. The Court therefore found that Ms Begum must be granted leave to enter the UK to participate in her appeal.

On the second issue, the Court found that SIAC had been wrong to approach this issue as a judicial review rather than a full merits appeal. SIAC is required to decide for itself whether a deprivation decision exposes an appellant to a direct and foreseeable risk of treatment contrary to Article 2 or 3, and not merely to decide whether the Secretary of State was entitled to conclude that the decision created no such risk. The Court ordered that this issue be remitted to SIAC.

Widow has real prospect of success in claim for negligence against company based in Bangladesh

Begum v Maran [2020] EWHC 1846 (QB)

This case involves the death of an employee whilst working on the demolition of a defunct oil tanker (“the vessel”) in the Zuma Enterprise Shipyard (“the yard”) in Chittagong (now Chattogram), Bangladesh. The deceased’s widow issued proceedings claiming damages for negligence under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976; alternatively, under Bangladeshi law. The scope of the proceedings has subsequently been broadened inasmuch as draft Amended Particulars of Claim advance a cause of action in restitution: more precisely, unjust enrichment.

Held: The claimant has a real prospect of succeeding in relation to her claim in negligence, however her claim in unjust enrichment is unsustainable. The the claimant has a real prospect of establishing that her claim is governed by English law and that if Bangladeshi law were to apply to the claim in tort, it would be statute-barred.

High Court hands down judgment in defamation challenge to statements made by Jeremy Corbyn on the Andrew Marr Show

Millett v Corbyn [2020] EWHC 1848 (QB)

This was a claim for defamation arising out of a statement made by Jeremy Corbyn on the Andrew Marr Show at the time Jeremy Corbyn was the leader of the Labour Party. Mr Corbyn’s interview with Andrew Marr concerned, amongst other subjects, allegations that Mr Corbyn was an anti-Semite. Mr Corbyn made the Statement in response to questions from Mr Marr in relation to a speech which Mr Corbyn had made some years earlier. Mr Millett alleged that the words spoken by Mr Corbyn in the Programme were defamatory of him and their publication caused and is likely to cause serious harm to his reputation.

The Court found that Mr Millett was being accused of abusive behaviour in relation to a public speaker on a controversial topic. This is an accusation of a type of conduct which is contrary to the values of a modern democracy where freedom of speech is a cherished value. Further, the behaviour of which he was accused was of such a level of seriousness (at the first meeting to which Mr Corbyn made reference) as to involve the police in potentially ejecting Mr Millett and the other individual (suggesting criminal misconduct). Again, this suggests conduct falling below the standards expected of citizens in modern British society.

The Court also considered that there was both a personal defamation as to Mr Millett’s character and a professional form of defamation in relation to how he was said to behave in his profession as a person attending and reporting on meetings of the type in issue.

Adoption and fostering agency’s recruitment policy found to violate the Equality Act and the Human Rights Act for requiring carer applicants to be heterosexual

R (Cornerstone (North East) Adoption and Fostering Service Ltd v Ofsted [2020] EWHC 1679 (Admin)

This case concerned whether it is lawful for an adoption and fostering agency only to accept heterosexual evangelical Christians as the potential carers of fostered children. Cornerstone (North East) Adoption and Fostering Service Ltd sought to judicially review a report by Ofsted, which found its carer recruitment policy to be in violation of equality and human rights laws and required it to change the policy.

Cornerstone operates as an independent fostering agency and is founded on, and operates according to, its perception of evangelical Christian principles. In practice, the only potential carers Cornerstone accepts are evangelical married heterosexual couples of the opposite sex.

The Court held, inter alia, that Cornerstone’s recruitment policy was unlawfully discriminatory in breach of s 29(1) of the EA 2010, alternatively, s 29(6), in both cases read with s 13 and/or s 19, insofar as it requires applicants to refrain from ‘homosexual behaviour’. The policy unlawfully discriminates, directly or indirectly, against gay men and lesbians. The disapplication of the general exemption in [2(3)] of Sch 23 provided by [2(10)] applies because Cornerstone performs functions on behalf of public authorities pursuant to contract.

Cornerstone’s recruitment policy was held to violate Article 14 of the Convention read with Article 8 insofar as it required carer applicants to be heterosexual. Its policy unlawfully discriminated against gay men and lesbians.