Tue 24-Jul-07 11:46 AM by Martin_Williams

Anybody got any views on whether the concession accepted by the Court of Appeal in R (on the application of RJM) v Secretary of State for Work & Pensions <2007> EWCA Civ 614 to the effect that it could depart from the Court of Appeal decision in Carson/Reynolds on whether means tested benefits are possessions now means that in effect Commissioners and Tribunals can follow Stec on this issue?

Are conceded points accepted by the Court of Appeal binding?

Hi Martin

Just some initial views.

I don’t think that there need be too much of a problem. The decision you highlight also quotes Lord Bingham in Kay v Lambeth BC who says that there are cases (wholly exceptional though they may be) where the principle of following English decisions must be adhered to.

Furthermore, the principle of stare decisis is not absolute (Gibson v Government of the USA 2007 – a Privy Council decision – to cite a recent case).

However, the factor that persuades the court to depart from the principle of precedent (the concession of the SoS that a non-contributory benefit can come within the ambit of A1P1) seems fairly unproblematic to me. What I think he is saying is that if the appellant and the respondent are in agreement on a particular point then why should the court interfere.

The question would be is the SoS allowed to disregard the reasoning (on a point of principle – i.e. can a non-con benefit come within the ambit of A1P1) of a court in an earlier case in a later case where the facts are different?

I don’t see any reason why not. The Executive is free to develop arguments and legal interpretation whether raised in previous judgements or not (subject to the usual legal constraints and judicial scrutiny) to underpin its actions. After all, when the HRA was enacted it was widely announced that it was to be a “living instrument” which would develop and expand over time.

In my view the court (in Campbell) was essentially upholding the Government’s interpretation of the law. If the Government subsequently wishes to retreat from that interpretation in a later case then a subsequent court is equally free to uphold its new position. Who is going to appeal the point after all.

Regards
Paul

Just to explain further, the court in RJM) v Secretary of State for Work & Pensions was asking itself whether it felt bound by the decision in Campbell but Martin is right the same question arises in respect of Carson/Reynolds.

Incidentally the HL overturned that part of the CA’s decision in Carson (that a retirement pension could come within the ambit of A1P1. In Reynolds the House decided not to rule on the point (of whether a non-con benefit could come within the ambit) until the decision in Hepple was handed down but assumed that it could for the purpose of argument.

"I don’t think that there need be too much of a problem. The decision you highlight also quotes Lord Bingham in Kay v Lambeth BC who says that there are cases (wholly exceptional though they may be) where the principle of following English decisions must be adhered to".

Sorry but that paragraph should have said

".........may not be adhered to"

Thought I would give this one a little bump.... by adding an extra question.

Is anyone currently aware of whether the Sec of State is still (post CA in RJM) arguing that means tested benefits are not possessions in specific cases?

It seems to me that the CA decision may not be regarded as binding in all other cases yet (or at least I could see them arguing that).

The problem with RJM is that in that case the SoS conceded (for the purposes of this case only) that income support was a possession. When a party concedes something in a case, it does not need to be argued before the court and the decision is thus only a decision on the particular facts of the case. In another case the SoS might well say that in this case he did not agree with the argument that it was a possession and RJM is not good authority for the proposition that it is. Indeed in this case the Court made it clear that if the SoS had not made the concession it would have followed Campbell and found that IS was not a possession.

Unfortunately all too many legal cases are subsequently distinguished by a court saying that the case is an authority only for its own facts (which means that the other court thinks it's wrong). You may have noticed a tendency for better Baumbast submissions to cite cases which argue that Baumbast is only an authority on its own facts.

What RJM is definitely authority for is that if income support is a possession, then refusal to pay the severe disability premium to a homeless man is not discrimination because homelessness is not the sort of status which is capable of giving rise to actionable discrimination.

Mon 20-Aug-07 05:58 PM by Martin_Williams

Hmmmm.....

I agree there are problems (which is why I posted) but what I had hoped (and will argue) is that Commissioners and Tribunals are now free to follow RJM and depart from Campbell and from the Court of Appeal decision in Reynolds.

The relevant bit from the judgment in RJM is this:

"But for one factor I would hold that this case is not an example of the kind of exceptional case which Lord Bingham had in mind in that paragraph. I would hold that we are bound by the decision in Kay to follow Campbell and hold that RJM's right to IS (including his right to DP as part of IS) is not a possession within A1P1 because it is a non-contributory benefit. The factor which has persuaded me not to take that course is the stance of the Secretary of State as explained in a supplementary note dated 21 May 2007 prepared by Ms Lieven and as further explained by her in oral argument.

As appears from paragraph 20 of the supplementary note, the Secretary of State now concedes that RJM's claim falls within the ambit of A1P1. In that note Ms Lieven criticises the reasoning of the European Court in paragraph 55 of its judgment in Stec, submitting that its reasoning is inconsistent with previous Strasbourg authority. She relies in particular upon the judgment of Carnwath LJ in Esfandiari v Secretary of State for Work and Pensions <2006> EWCA Civ 282 ("Esfandiari") and upon the decisions of the Grand Chamber in Kopecky v Slovakia (application no 44912/98) and Von Maltzan v Germany (2006) 42 EHRR SE 11.

However, the Secretary of State expressly recognises the force of the following part of paragraph 54 of the judgment in Stec:

"54… does not create a right to acquire property. It places no restriction on the Contracting State's freedom to decide whether or not to have in place any form of social security scheme or to choose the type or amount of benefits to provide under any such scheme, … If, however a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of for persons satisfying its requirements …"

The Secretary of State makes this limited concession in paragraph 20 of the supplementary note:

"20. In these circumstances, for the purposes of RJM's claim, which does involve a non-contributory welfare benefit, and where it is accepted that the Appellant falls within the general social purpose and intendment of the Income Support scheme, it is accepted that pursuant to Stec his case falls within the ambit of A1P1. The Secretary of State therefore accepts that RJM's case falls within the ambit of A1P1, if the Court of Appeal does not feel itself bound by Campbell."

Ms Lieven made it clear that that was the limit of the Secretary of State's concession. However, she also made it clear that, if the matter proceeded to the House of Lords, the Secretary of State would concede that that was the position. She conceded, in my judgment correctly, that RJM had a relevant possession within the meaning of A1P1 on the facts of this case. That was the very concession which the Secretary of State in effect made before the judge because he did not argue to the contrary. In any event it appears to me that it must be open to the Secretary of State to make the concession that RJM has a relevant possession both before the judge and before us, whether or not, but for such a concession, we would be bound to decide otherwise. That is particularly so in circumstances where the Secretary of State would make the same concession in the House of Lords. "

I'm going to re-vitalise this, although I've not read the whole for a while.

Sec' State's sub in a case of mine...

"The secretary of state does not accept that there was any such concession in RJM. Counsel... said only that if the CA did not feel itself bound by precedent then for the purposes of RJM it was accepted that... within the ambit of A1P1

in RJM the SoS did not intend to make any concession on precedent, rather his submission was {as above}. This is conceptally different from conceding ab initio that the benefit concerned fell within {A1P1}"

My answer rather as Martin's above is that where there is arguably the pecuniary right created in RJM then the Kay Price exceeption comes into play and it's irrational (i.e. are they bound otherwise than...) to take a different stance.

Having read Ariadne's point I can see where they're coming from but where there's an anlagous situation I would hope the irrationality argument has got some legs.

In plain terms, if it's an initial refusal then no pecuinary interest arises and A1P1 isn't in scope, however SoS has conceded in the opposite once and that should stand in other cases.

SoS is using Couronne and Esfandiari to undermine Stec, so having read them I may add to this.

Looking at all the other cases, i.e. Campbell etc that don't accept issues with A1P1 in scope they're all initial refusals.

I feel like SoS is trying to drown me in decisions to shut me up...

That is very amusing as the Sec of State's solicitor said in oral hearing in case we were representing before the Commissioner last week that the concession was made.....

If the Secretary of State did not concede the issue in RJM does this not mean that RJM is of binding force? Either it was conceded (in which case RJM not binding on this point and may still have to follow Campbell), or it wasn't (in which case RJM presumably binding).

Our argument at Commissioner was that RJM although not binding (as based on a concession) did add a further layer of complexity to the whole A1P1 saga (eg Reynolds in CA, H of L not considering the point when Reynolds came before it and referring to Stec in its decision as a case about to be decided, Stec coming out, Esfandiari commenting on it and then RJM - Sec of State conceding) that is now sufficient to bring it within Lord Bingham's exception in Kay/Price. ie although the CA in RJM said they would not feel it was a Kay exception case but for the concession the fact that they have now said that makes it NOW a Kay exception case..... if you see what I mean.

I can't be certain whether the point will actually be decided in our case as we could easily lose on other grounds.

A further argument (which I was not able to develop) is whether it is permissible for the Sec of State in a case which raises an issue of public law to make a concession in one case and not in another- surely the Sec of State has some sort of duty to tell the Court what his position is and stick to it as far as issues of law are concerned.

Martin.

I suppose that the DWP solicitors or Treasury counsel or whoever it was may have though that the Art 14 discrimination point was the important one, and wanted to get that decided. If there wasn't a Convention right for Art 14 to bite on, then you wouldn't get as far as the discrimination point, and the only one in view was the Protocol 1 Art 1 right. So you might concede for the purposes of one case but not of another.

update on RJM from CPAG .... leave to appeal to the House of Lords has been granted. Practical consequence is that anyone with appeals relying on the Article 1 point may need to get their cases stayed pending the outcome.

ps - re Couronne (mentioned by Dan above) ... appeal dismissed on Friday ... summary in rightsnet news shortly

summary of couronne now in rightsnet news

nb - amongst other findings the Court holds that the High Court had been bound by the Court of Appeal's judgment in Campbell v South Northamptonshire District Council rather than the European Court's judgment in Stec ...

RJM does not appear to have been cited to the Court. Also it appears that the hearing of Couronne at the Court of Appeal (9th and 10th of July) took place before the decision in RJM was given (28th of July).

Further it is clear that Counsel for Couronne et al were limited as to what they could say about the whole Stec debate by time constraints (this is clear from the main speech at para 102):

102. Partly, I accept, due to the limited time available for oral argument, Mr. Singh and Mr. Cox did not develop grounds 3 and 4 of their grounds of appeal, which they summarised as the sixth issue arising on the appeals, namely the proposition that the judge was wrong to hold that the appellants' case fell outside the ambit of ECHR Article 1-1 and / or Articles 8 and 14.

112. If it is necessary for me to do so for the purposes of these appeals, I respectfully agree with the judge's analysis. It seems to me, with great respect to Mr. Singh and Mr. Cox that the alleged mischief in the present case, the habitual residence rule, is not caught by ECHR Article 8, and even if discriminatory within ECHR Article 14 (which I do not think it is) is plainly justified for the reasons I have already given.

113. Insofar as it is appropriate, on the facts of the instant case, for this court to enter what I may call the "Stec" debate, my view is that the judge was right to hold that he was bound by this court's decision in Campbell, and I agree with Mr. Howell's submission that this court is in the same position.

Sorry..... of course given that RJM now has leave for the House of Lords it may be appropriate as Shawn says to ask for all cases involving discrimination and Art 1, Prot 1 to be stayed pending the decision..... sorry should have read the previous post first.

Martin.

What a time to take a break eh?

I hate to take the easy route, but it looks like that application for staying is in order....