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 would want to argue on the following basis:
1. The Sec of State's concession in RJM was not of the normal sort. Rather the Sec of State said to the Court: we will concede "if the Court of Appeal does not feel itself bound by Campbell". Thus the Court had to decide whether it was bound in this particular case. Having said that the Court did decide that it was free to depart from the earlier decisions because of the concession.
2. The restrictions the Sec of State placed upon the concession only APPEAR to limit it to this particular case. The only things put to the Court about the specific facts in RJM's claim for benefit that the Sec of State say allow him to make the concession were
a) that is was a non-contributory benefit (that is what the argument will be about in every case).
b) That: "it is accepted that the Appellant falls within the general social purpose and intendment of the Income Support scheme". I have no real idea what this means. I find it hard to think of a case where the claimant will not fall within the general social purpose and intendment of the scheme. I would be grateful for anyone who has a deeper insight into the mysteries of this statement to let me know (note in Esfandiari the judge was similarly unimpressed with this form of words).
3. The Court deliberately say that the case comes within the extreme exception cited in Kay/Price. If that is so for its case then it must be so in other cases.
4. In other cases, even if SoS does not make the same concession we can say:
a) In RJM it was conceded. It is irrational of the Sec of State not to concede in the present case on the same basis. It may be possible to come up with some sort of public law argument on this point (ie that it is the SoS policy to concede in cases where 2(a) and 2(b) above are made out and that not to concede it in a particular case is a departure from that policy etc..... not sure if you can apply that sort of argument in case proceedings.....
b) If the issue comes within the Kay/Price exception in one case it must come within the same exception in other cases and the fact that no concession is made in the present case should not stop that.
5. This is all particularly the case given that:
a) In another case since the ruling in Stec the Court of Appeal has accepted that it is correct (although the point was not disputed before it and they accepted that the case was within the ambit of Article 8 in any event)- Esfandiari and others v Secretary of State for Work and Pensions <2006> EWCA Civ 282 (see Carnwarth LJ at para 27).
b)It is of note that when Ms Reynolds’ appeal came before the House of Lords none of the judges explicitly decided the question of whether or not means tested benefits were possessions. The House of Lords gave the judgment in Reynolds on 26/05/2005. Their Lordships were made aware that Stec (or as it was then known Hepple) would shortly be decided by the ECtHR (see Lord Hoffman at para 12, Lord Walker at para 84). It is arguable from what is said in para 84 that the H of L deliberately did not dip their toes in the Article 1 Protocol 1 point because they felt the matter should be left to the ECtHR and therefore themselves undermine the decision of the Court of Appeal in Reynolds to some extent (on which Campbell etc was based).
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I wish someone would get a case to the House of Lords so they can tell everyone to follow Stec.
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