In the case of B. v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
LechGarlicki, President,
NicolasBratza,
PäiviHirvelä,
LediBianku,
ZdravkaKalaydjieva,
NebojšaVučinić,
Vincent A. De Gaetano, judges
andLawrenceEarly, Section Registrar,
Having deliberated in private on 24 January 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 36571/06)
against the United Kingdom of Great Britain and Northern Ireland lodged with
the Court under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by aBritish national, MsB. (“the
applicant”), on 31 August 2006. The Vice-President of the Section acceded to
the applicant’s request not to have her name disclosed (Rule 47 § 3 of the
Rules of Court).
The applicant, who had been granted legal aid,
was represented by Ms S. Clarke of Child Poverty Action Group, a lawyer
practising in London. The United Kingdom Government (“the Government”) were
represented by their Agent, MsH. Upton of the Foreign and Commonwealth Office.
On 18 March 2009the Vice-President of the Fourth
Section decided to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1964 and lives in Middlesex.
The facts of the case, as submitted by the
applicant, may be summarised as follows.
The applicant, who has a severe learning
disability, has three children. From May 1990 she was in receipt of two
non-contributory state benefits administered by the Secretary of State for Work
and Pensions: child benefit and means-tested income support. Her income support
personal allowance was assessed on the basis that she was a lone parent. She
received an additional amount of personal allowance for each child who was a
member of her family and a family premium. The benefits were paid by order
book.
Pursuant to regulation 32(1) of the Income
Support (General) Regulations 1987 (“the 1987 Regulations”),the applicant was
under a duty to report any change of circumstance which might affect her
entitlement to benefit to the Department of Work and Pensions (“DWP”). A note
on the back of her order book advised her that she might break the law if she
did not notify the DWP if a dependent or someone living with her moved to a
different address. She had also received a Form INF4, which advised her that
she should immediately inform the DWP if, inter alia, children that she
had claimed for were taken into care.
In October 2000 the applicant’s three children
were taken into care.She did not report this fact to the DWP. At the time,
however, the applicant did not have the services of a social worker and she did
not receive any practical help from the local authority disability team. It was
accepted that she did not realise that this was a fact which she was required
to report.
In November 2001 the applicant began to receive
support from the Owl Housing Link Project, a charity which provides a range of
support services to people with learning difficulties.
In December 2001 Owl Housing notified the DWP
that the applicant’s children had been taken into care. There followed four
separate decisions. First, the Secretary of State decided, pursuant to section
71(5A) ofthe Social Security Administration Act 1992 (“the 1992 Act”), to
supersede her award of income support to reflect the fact that she had been
receiving benefit to which she was not entitled. Secondly, a decision was made
that the requirements of section 71(1) were satisfied so that the Secretary of
State was entitled to recover the overpayment. Thirdly, the Secretary of State
decided to exercise his discretion so as to recover the overpayment. Fourthly,
the Secretary of State decided to recover the overpayment by reducing the
applicant’s future payments of income support by the amount permitted by
regulation 16 of the Recovery Regulations.
The amount of income support that the applicant
had received in respect of her children after they had been taken into care was
GBP 6,561.76. However, this amount was reduced by approximately 30 percent
to GBP 4,626.74 because during the relevant period the applicant could have
claimed, but did not claim, an income support disability premium.
The applicant appealed to the Social Security
Appeal Tribunal (“the Tribunal”) against the Secretary of State’s decision that
she had to repay GBP4,626.74. She relied on previous decisions of the Social
Security Commissioners, in whichthey held that there would be no failure to
disclose unless disclosure was reasonably to be expected. If there was no
failure to disclose, the question of recovery of an overpayment would not arise
at all. The Tribunal allowed the applicant’s appeal, finding that the relevant
test was not what a reasonable man would have thought it appropriate to disclose,
but rather what a reasonable man knowing the particular circumstances of the
claimant would have expected her to disclose. The Tribunal accepted that the
applicant did not understand that the placing of her children in care was a
material fact which she needed to disclose to the DWP, and that it was not
reasonable to expect her, in the particular circumstances of her case, to have
disclosed that fact.
The Secretary of State appealed to the Social
Security Commissioners (“the Commissioners”). The Commissioners allowed the
appeal, holding that if a claimant was aware of a matter which he or she had
been required to disclose, there would be a breach of that duty even if,
because of mental incapacity, the claimant was unaware of the materiality or
relevance of the matter or did not understand an unambiguous request for
information. Notwithstanding the settled case-law of the Commissioners, the
“reasonableness test” was not a requirement under section 71 of the 1992 Act
and did not represent a possible construction of section 71. Capacity was not
relevant to the issue of failure to disclose and the applicant was in breach of
the obligations imposed on her under the first limb of regulation 32(1) of the
1987 Regulations.
The
applicant appealed to the Court of Appeal. She submitted that there had been a
violation of Article 14 of the Convention read in conjunction with Article 1 of
Protocol No. I in that the State’s interference with her possessions discriminated
unjustifiably between people who were unable to report facts because they were
not aware of them and people who, like the applicant, were unable to report
them for some other reason. It was argued in the alternative that the law
treated identically people who were capable and people who were incapable of
understanding that there was a fact which they were required to report.
The Court of Appeal held that the argument fell
at the first fence because there were no possessions of the applicant at stake:
what the Secretary of State was claiming was an entitlement to recover money
which should not have been paid to the applicant in the first place. Although
the decision of the Court of Appeal in the case of R. (Carson and Reynolds)
v. the Secretary of State for Work and Pensions to the effect that a
non‑contributory benefit such as income support was not a possession
within the meaning of Article 1 was taken as correct by the House of Lords, the
underlying issue of principle awaited the decision of the Grand Chamber of the
Court in the case of Stec. The recovery of overpaid benefits, however,
stood outside this question and by parity of reasoning outside Article 1 of
Protocol No. 1.
The Court of Appeal went on to reject in any
event the applicant’s first alleged ground of discrimination as it did not
consider people who were unable to report facts because they were not aware of
them to be in an analogous, or relevantly similar, situation to people whowere
unable to report them for some other reason. The proposition that you could not
report something that you did not know was a simple proposition of logic,
whereas the proposition that you could not report something you did not
appreciate you had to report depended on difficult questions of cognitive
capacity and moral sensitivity which varied from person to person.
As to the latter ground relied upon by the
applicant, namely that the law treated identically people who were capable and
people who were incapable of understanding that there was a fact which they
were required to report,the Court of Appeal found it unnecessary to determine
what was considered to be a difficult question, since the recovery of overpaid
benefits could not in any event amount to a deprivation of possessions.
On 6 March 2006 the applicant was refused
permission to appeal to the House of Lords.
II. RELEVANT DOMESTIC LAW AND PRACTICE
At the relevant time, regulation 32(1) of the
1987 Regulations provided that:
“Except in the case of a jobseeker’s allowance, every
beneficiary and every person by whom or on whose behalf sums payable by way of
benefit are receivable shall furnish in such a manner and at such times as the
Secretary of State ... may determine such certificates or other documents and
such information and facts affecting the right to benefit or its receipt as the
Secretary of State ... may require (either as a condition on which any sum or
sums shall be receivable or otherwise) and in particular shall notify the
Secretary of State ... of any change of circumstances which he might reasonably
be expected to know might affect the right to benefit, or to its receipt, as
soon as reasonably practicable after its occurrence, by giving notice in
writing (unless the Secretary of State ... determines in any particular case to
accept notice otherwise than in writing) of any such change to the appropriate
office.”
Pursuant to section 10 of the Social Security
Act 1998, the Secretary of State for Work and Pensions had power to supersede
an award of income support, where there had been a relevant change in
circumstances, with retrospective effect from the date when the change
occurred.
Where there was a failure to disclose a relevant
change in circumstances, section 71 of the 1992 Act provided that:
“(1) Where
it is determined that, whether fraudulently or otherwise, any person has
misrepresented, or failed to disclose, any material fact and in consequence of
the misrepresentation or failure—
(a) a payment has been made in respect
of a benefit to which this section applies; or
...
the Secretary of State shall be entitled to
recover the amount of any payment which he would not have made or any sum which
he would have received but for the misrepresentation or failure to disclose.
(2) Where any such determination as is
referred to in subsection (1) above is made on an appeal or review, there shall
also be determined in the course of the appeal or review the question whether
any, and if so what, amount is recoverable under that subsection by the
Secretary of State.
(3) An amount recoverable under
subsection (1) above is in all cases recoverable from the person who
misrepresented the fact or failed to disclose it.
(5) Except where regulations otherwise
provide, an amount shall not be recoverable under subsection (1) above unless the
determination in pursuance of which it was paid has been reversed or varied on
an appeal or revised on a review or has been revised under section 9 or
suspended under section 10 of the Social Security Act 1998.
(8) Where any amount paid is
recoverable under—
(a) subsection (1) above;
it may, without prejudice to any other method of
recovery, be recovered by deduction from prescribed benefits.
(10) Any amount recoverable under the
provisions mentioned in subsection (8) above—
(a) if the person from whom it is
recoverable resides in England and Wales and the county court so orders, shall
be recoverable by execution issued from the county court or otherwise as if it
were payable under an order of that court; and
...
(11) This section applies to the
following benefits—
(b) income support; ”
Regulations 13, 15 and 16 of the
Social Security (Payments on account, Overpayments and Recovery) Regulations
1988 (“the 1988 Regulations) provide as follows:
“Sums to be deducted in calculating
recoverable amounts
13. In calculating the amounts recoverable... where
there has been an overpayment of benefit, the adjudicating authority shall
deduct—
(a) any amount
which has been offset under Part III;
(b) any additional
amount of income support which was not payable under the original, or any
other, determination, but which should have been determined to be payable—
(i) on the basis
of the claim as presented to the adjudicating authority, or
(ii) on the basis
of the claim as it would have appeared had the misrepresentation or
non-disclosure been remedied before the determination;
but no other deduction shall
be made in respect of any other entitlement to benefit which may be, or might
have been, determined to exist.
...
Recovery by deduction from prescribed
benefits
15.—(1) Subject to regulation 16, where any amount
is recoverable ...that amount shall be recoverable by the Secretary of State
from any of the benefits prescribed by the next paragraph to which the person
from whom it is determined the amount to be recoverable is entitled.
(2) The following benefits are prescribed for the
purposes of this regulation—
...
(d) subject to regulation 16, any income support.
Limitations on deductions from prescribed
benefits
16.—
...
(4) Regulation 15 shall apply to the
amount of income support to which a person is presently entitled only to the
extent that there may, subject to paragraphs 8 and 9 of Schedule 9 to the
Claims and Payments Regulations, be recovered in respect of any one benefit
week—
(a) in a case to which paragraph (5)
applies, not more than the amount there specified; and
(b) in any other case, 3 times 5 per
cent. of the personal allowance for a single claimant aged not less than 25,
that 5 per cent. being, where it is not a multiple of 5 pence, rounded to
the next higher such multiple.
(5) Where the person responsible for
the misrepresentation of or failure to disclose a material fact has, by reason
thereof, been found guilty of an offence under section 55 of the Act or
under any other enactment, or has made a written statement after caution in
admission of deception or fraud for the purpose of obtaining benefit, the
amount mentioned in paragraph (4)(a) shall be 4 times 5 per cent. of the
personal allowance for a single claimant aged not less than 25, that 5 per
cent. being, where it is not a multiple of 10 pence, rounded to the nearest
such multiple or, if it is a multiple of 5pence but not of 10 pence, the next
higher multiple of 10 pence.
(6) Where, in the calculation of the
income of a person to whom the income support is payable, the amount of
earnings or other income falling to be taken into account is reduced by
paragraphs 4 to 9 of Schedule 8 to the Income Support Regulations (sums to be disregarded
in the calculation of earnings) or paragraphs 15 and 16 of Schedule 9 to
those Regulations (sums to be disregarded in the calculation of income other
than earnings) the weekly amount applicable under paragraph (4) may be
increased by not more than half the amount of the reduction, and any increase
under this paragraph has priority over any increase which would, but for this
paragraph, be made under paragraph 6(5) of Schedule 9 to the Claims and
Payments Regulations.
(7) Regulation 15 shall not be applied
to a specified benefit so as to reduce the benefit in any one benefit week to
less than 10 pence.
...”
The Secretary of State’s policy on the recovery
of overpaid benefit is set out in the Overpayment Recovery Guide, which
contains guidance for decision-makers to adjudicate in overpayment cases.
Section 12 of the Guide addresses “abatement by notional entitlement”, which is
the exercise of discretion to recover a lower amount on account of the fact
that a claimant could have claimed, but did not claim, some other social
security benefit during the same period. In those circumstances, recovery is
made of the net loss to public funds. Section 12 also addresses the exercise of
discretion to waive recovery of overpayments, which is normally considered
where there is reasonable evidence available that the recovery of an
overpayment would be detrimental to the health and/or welfare of the debtor or
their family or that recovery would not be in the public interest.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION READ IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1
The applicant complained that contrary to Article
14 of the Convention read together with Article 1 of Protocol No.1 persons
unable to report facts because they were unaware of them were treated
differently under section 71 of the 1992 Act from those who were unable to
report facts for some other reason. In the alternative, she complained that the
law treated identically persons who were capable and persons who were incapable
of understanding that there was something which they were required to report.
Article 1 of Protocol No. 1 provides as follows:
“Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”
Article 14 of the Convention provides as
follows:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
The Government contested that argument.
A. Admissibility
1. The Government’s preliminary objection on
incompatibility ratione materiae
(a) The Government’s submissions
The Government submitted that the application
should be dismissed on account of its incompatibilityratione materiae
with the Convention because there was no interference with any “possessions” of
the applicant. The Government submitted that there was no interference with the
applicant’s possessions first and foremost because she never satisfied the
conditions of entitlement to the amounts of income support which were overpaid
to her (see, for example,Rasmussen v. Poland, no. 38886/05, 28 April 2009). She had never had any
enforceable right to receive the disputed sums and could not have complained
under Article 14 read together with Article 1 of Protocol No. 1 if the
Secretary of State had refused to pay those sums in the first place. Indeed, the
applicant had accepted that she was not entitled to child additions to her
income support once she was no longer responsible for looking after her
children and had not sought to challenge the Secretary of State’s decision to
supersede her award of income support once he became aware of her changed
circumstances.
The Government further submitted that as the
overpaid sums were recovered by reducing the applicant’s future benefits, the
case could be distinguished from Tsironis v. Greece, no. 44584/98, 6
December 2001, which concerned the seizure of existing possessions to enforce a
debt.
(b) The applicant’s submissions
The applicantsubmitted that a determination
under section 71 of the 1992 Act created a chose in action enforceable by the
Secretary of State against the possessions of those subject to it. The
possessions from which the Secretary of State could recover overpaid benefits
included prescribed benefits to which the recipient was entitled and any other
possessions that the recipient might have. Consequently, the applicant
submitted that the creation of such a chose in action interfered with her
peaceful enjoyment of possessions for the purposes of Article 1 of Protocol No.
1.
The applicant disputed the Court of Appeal’s
finding that no “possession” was involved as the amount in question should not
have been paid to the applicant in the first place. Instead, she submitted that
laws regulating the recovery of debt or damages from the possessions of a
person and the resulting recovery of such sums from those possessions fell
within the ambit of Article 1 of Protocol No. 1 since they authorised an
interference with that person’s possessions. Thus, the Court held in Tsironis
v. Greece, no. 44584/98, § 38, 6 December 2001 that the sale of a persons
possessions to satisfy debts owed to a bank constituted an interference with
his possessions.
In any event the applicant submitted that a
person who was overpaid benefit owed no debt until the benefit was set aside
with retrospective effect. Until then, she was entitled to payment of it.
Setting aside her rights with retrospective effect had itself engaged Article 1
of Protocol No. 1 (see,for example, Kopecký v. Slovakia[GC], no.
44912/98, ECHR 2004‑IX). Replacing the right to payment an
individual might have had retrospectively with a liability to repay an amount
involved an interference with the peaceful enjoyment of her possessions (Brumărescu
v.Romania [GC], no. 28342/95, § 74, ECHR 1999‑VII).
(c) The
Court’s assessment
The Court recalls that Article 14 complements
the other substantive provisions of the Convention and the Protocols. It has no
independent existence since it has effect solely in relation to “the enjoyment
of the rights and freedoms” safeguarded by those provisions (see, amongst many
authorities, Şahin v. Germany [GC], no. 30943/96, § 85, ECHR
2003-VIII). The application of Article 14 does not necessarily presuppose the
violation of one of the substantive rights guaranteed by the Convention. It is
necessary but it is also sufficient for the facts of the case to fall “within
the ambit” of one or more of the Convention Articles (see, among many other
authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom,
judgment of 28 May 1985, Series A no. 94, § 71; Karlheinz Schmidt v. Germany,
judgment of 18 July 1994, Series A no. 291-B, § 22; and Petrovic v. Austria,
judgment of 27 March 1998, Reports 1998-II, § 22).
34. The prohibition of discrimination in
Article 14 thus extends beyond the enjoyment of the rights and freedoms which
the Convention and its Protocols require each State to guarantee. It applies
also to those additional rights, falling within the general scope of any
Convention article, for which the State has voluntarily decided to provide.
This principle is well entrenched in the Court’s case-law. It was expressed for
the first time in the Case “relating to certain aspects of the laws on the
use of languages in education in Belgium” v. Belgium (Merits) (judgment of
23 July 1968, Series A no. 6, § 9), when the Court noted that the right to
obtain from the public authorities the creation of a particular kind of
educational establishment could not be inferred from Article 2 of Protocol No.
1, and continued as follows:
“... nevertheless, a State which had set up such an
establishment could not, in laying down entrance requirements, take
discriminatory measures within the meaning of Article 14.”
The Court must decide, therefore, whether the
interests of the applicant which were adversely affected by the impugned
legislative scheme fell within the “ambit” or “scope” of Article 1 of Protocol
No. 1.In this regard, the Court accepts that if the present case concerns a
“possession” belonging to the applicant, then it would fall within the “ambit”
or “scope” of Article 14 of the Convention.
The Court has consistently held that
“possessions” within the meaning of Article 1 of Protocol No. 1 can be either
“existing possessions” (see Van der Mussele v. Belgium, 23 November 1983,
§ 48, Series A no. 70, and Gratzinger and Gratzingerova v. the Czech
Republic(dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII) or assets,
including claims, in respect of which an applicant can argue that he has at
least a “legitimate expectation” that they will be realised (see, for example, Pressos
Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 31, Series
A no. 332, and Ouzounis and Others v. Greece, no. 49144/99, § 24,
18 April 2002). In particular, the Court has held that where an individual has
an assertable right under domestic law to a welfare benefit, the importance of
that interest should be reflected by holding Article 1 of Protocol No. 1 to be
applicable (Stec and Others v. the United Kingdom (dec.) [GC],
nos. 65731/01 and 65900/01, § 51, ECHR 2005‑X).Moreover, the Court
has held that the reduction or discontinuation of a benefit may constitute an
interference with possessions which requires to be justified in the general
interest (Kjartan Ásmundsson v.Iceland, judgment of 12October 2004, ECHR
2004-IX, and Moskal v. Poland, no. 10373/05, 15 September 2009).
37. The
applicant primarily complainedthat a determination under section 71 of the 1992
Act created a chose in action enforceable by the Secretary of State against any
possessions which she might have. However, it is clear to the Court that the
Secretary of State decided, apparently pursuant to an invariable policy, to
recover the overpaid benefit by deducting it from future prescribed benefits.
There does not appear to have been any question of his interfering with the
applicant’s existing possessions. Consequently, the Court considers that the
present case can be distinguished from that of Tsironis v. Greece (cited
above), which concerned the sale of an applicant’s actual possessions to
satisfy a debt.
In the alternative, the applicant complained
that the overpaid benefit was itself a “possession” for the purposes of Article
1 of Protocol No. 1 because she had remained entitled to the increased award
until the Secretary of State formally decided to supersede it.Consequently, the
decision to recover the overpaid benefit amounted to an interference with her
possessions, regardless of how it was to be achieved. The applicant relied on
the Court’s approach in Moskal v. Poland, cited above, in which it held
that the discontinuation of a benefit wrongly awarded to the applicant
interfered with her possessions for the purposes of Article 1 of Protocol No.
1.
However, the Court considers that the decision
in Moskal v. Poland can be distinguished in one important respect. Unlike the situation in Moskal, where the
relevant mistake was that of the Polish Social Security Board, in the present
case the payment of benefit to which the applicant was not entitled was the
result of her own failure to report the fact that her children had been taken
into care. Where a benefit system relies on recipients to report any change in
their circumstances, the Court considers that it would be perverse if they
could acquire an assertable right to overpaid benefit where they have failed to
report such a change. To hold otherwise would enable recipients of benefits to
profit from their own omissions and, in some cases, fraud.
Consequently,
the Court concludes that the applicant did not have an assertable right to the
overpaid benefit. It does not, therefore, accept that it amounted to a
possession for the purposes of Article 1 of Protocol No. 1.
That being said, the Court observes that in
order to recover the overpaid benefit the Secretary of State reduced the
applicant’s future award of income support. Even after the increased award was
superseded,the applicantcontinued to meet the criteria for the basic award
(without the child allowance and family premium). She therefore had an
assertable right to the receipt of income support at this reduced rate. The
Court has previously accepted that the reduction of a benefit to which an
applicant is entitled may amount to an interference with a possession (see, for
example, Moskal v. Poland and Ásmundsson v. Iceland, both
cited above). Consequently, the Court considers that the reduction of the award
to which the applicant was entitled, albeit to recover overpaid benefits, could
be said to have interfered with a “possession” for the purposes of Article 1 of
Protocol No. 1 of the Convention.
It therefore follows that the applicant’s
interests fall within the scope of Article 1 of Protocol No. 1, and of the
right to property which it guarantees. This is sufficient to render Article 14
applicable.
43. The
Court therefore rejects the Government’s submission that the application is
incompatibleratione materiae.It further notes
that the application is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The applicant’s submissions
The applicant submitted that the basis upon
which the Secretary of State could recover overpaid benefit from her
possessions involved discrimination contrary to Article 14 because it treated
persons in analogous situations differently and it treated in the same manner
those whose situations were significantly different.
First, she submitted that those who could not
reasonably be expected to report a material fact because they were not aware of
it were treated differently from those who could not reasonably be expected to
report it because they were unaware of the requirement to report it. These two
groups were in an analogous situation because neither could reasonably be
expected to report the fact and they were equally not to blame for not
reporting it. Secondly, she complained that those who were incapable of
understanding that they were required to report a fact were treated the same as
those who were capable of understanding the requirement to report. The capacity
or incapacity to report a fact was a personal characteristic for the purposes
of Article 14 of the Convention.
The applicant complained that in neither case
was there any objective and reasonable justification for such treatment,
especially as the basis for liability to repay overpaid benefit was personal
fault. Moreover, she complained that the discriminatory treatment demonstrated
a failure to recognise the particular difficulties experienced by persons with
learning disabilities.
2. The Government’s submissions
With regard to the alleged difference in
treatment between those who could not reasonably be expected to report a
material fact because they were not aware of it and those who could not
reasonably be expected to report it because they were unaware of the requirement
to report it, the Government relied on the findings of the Court of Appeal,
which held that there was no proper analogy between the two situations because
the former involved a straightforward proposition of logic while the latter
involved very different questions of cognitive capacity and moral sensitivity.
Whereas it was reasonable to expect decision-makers to assess whether a
claimant was aware of a fact, it was a much more difficult and complicated
matter for them to decide whether a claimant’s cognitive capacity and moral
sensitivity rendered them able or unable to understand the materiality of that
fact, and whether any such claimant could reasonably be expected to report it.
Further, the Government submitted that such a
distinction was not based upon any “personal characteristic or status”, which
was an essential requirement of Article 14 of the Convention (Kjeldsen, Busk
Madsen and Pedersen v. Denmark, 7 December 1976, Series A no. 23). In
particular, they submitted that this was not a distinction on grounds of
disability, as a claimant could be aware of a fact but unable to report it for
a reason entirely unrelated to disability, such as a failure to understand
instructions.
With regard to the applicant’s alternative
formulation, the Government contended that section 71 did not seek to attribute
blame. The underlying policy was to permit recovery, regardless of whether the
failure to disclose was excusable or not. In any case, the Government argued
that the distinction suggested by the applicant was again not one which was
based on a personal characteristic.
Alternatively, the Government contended that if
the applicant succeeded in establishing that there had been discrimination,
then justification had clearly been made out. It was well-established that
Contracting States had a broad margin of appreciation in determining features
of their social security systems and that decisions taken in this context would
be respected by the Court unless they were “manifestly without reasonable
foundation” (see, for example, Carson and Others v. the United Kingdom, no. 42184/05, § 73, 4 November 2008).
Against the backdrop of the wide margin of
appreciation, the Government submitted that section 71 manifestly pursued the
legitimate aim of ensuring that claimants for certain social security benefits
were not permitted to retain sums of money to which they were not entitled
because they did not fulfil the conditions of entitlement at the material time.
The recovery of overpaid benefits served to maximise the resources available
within the social security system for the payment of benefits to claimants who
did meet the conditions of entitlement. The sums involved were significant
across the social security system as a whole. Overpayments of Income Support
identified in 2008/9 totalled almost GBP 280 million, of which approximately
GBP 173 million was considered to be recoverable by the Secretary of State.
Moreover, the Government pointed out that the
relatively broad test of liability under section 71 was counter-balanced by a
number of other features of the social security system which served to reduce
its adverse impact on benefit claimants. For example, a claimant would only be
liable to repay overpaid benefit if she had acted in breach of a legal
obligation to disclose; domestic law provided for the appointment of a third
party to act on behalf of a claimant who might otherwise have difficulty
complying with their obligations; section 71 did not permit the Secretary of
State to charge interest on overpaid sums; and finally, there was a limit on
the maximum amount which could be recovered each week and the Secretary of
State could, in certain circumstances, apply his policies on abatement or
waiver.
The Government therefore submitted that the
applicant was not required to bear an “excessive burden” (see, for example, Moskal
v. Poland, cited above, § 73).
3. The Court’s assessment
The Court has established in its case-law that only
differences in treatment based on an identifiable characteristic, or “status”,
are capable of amounting to discrimination within the meaning of Article 14 (Kjeldsen,
Busk Madsen and Pedersen,cited above, § 56). Moreover, in order for an
issue to arise under Article 14 there must be a difference in the
treatmentof persons in analogous, or relevantly similar, situations(D.H.and
Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007; Burden
v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008‑). Such
a difference of treatment is discriminatory if it has no objective and
reasonable justification; in other words, if it does not pursue a legitimate
aim or if there is not a reasonable relationship of proportionality between the
means employed and the aim sought to be realised.
Article 14 does not prohibit a Contracting State
from treating groups differently in order to correct “factual inequalities”
between them; indeed in certain circumstances a failure to attempt to correct
inequality through different treatment may in itself give rise to a breach of
the Article (see Case “relating to certain aspects of the laws
on the use of languages in education in Belgium” (merits), 23 July 1968,
pp. 34-35, § 10, Series A no. 6, and Thlimmenos v. Greece [GC], no.
34369/97, § 44, ECHR 2000‑IV).
The Contracting States enjoy a margin of
appreciation in assessing whether and to what extent differences in otherwise
similar situations justify a different treatment(Burden v. the United
Kingdom, cited above, § 60). The scope of this margin will vary according
to the circumstances, the subject-matter and the background.A wide margin is
usually allowed to the State under the Convention when it comes to general
measures of economic or social strategy. Because of their direct knowledge of
their society and its needs, the national authorities are in principle better
placed than the international judge to appreciate what is in the public
interest on social or economic grounds, and the Court will generally respect
the legislature’s policy choice unless it is “manifestly without reasonable
foundation” (Stecand Others v.the United Kingdom,[GC],nos. 65731/01 and
65900/01,§ 52, ECHR 2006).
In the present case the applicant has claimed
that the difference in treatment between persons who could not reasonably be
expected to report a material fact because they were not aware of the fact and
those who could not reasonably be expected to report a fact because they were
not aware of its materiality was discriminatory. However, the Court agrees with
the Court of Appeal that these two groups could not be said to be in analogous,
or relevantly similar, situations. On the contrary, although neither could be
said to be “to blame” for the failure to report, the Court considers the
situation of persons who are not aware of a fact to be qualitatively of a
different nature to that of persons who are aware of a fact but who are not
aware of its materiality. As the Court of Appeal found, the proposition that
you cannot report something that you do not know is a simple proposition of
logic, whereas the proposition that you cannot report something you do not
appreciate you have to report depends on difficult questions of cognitive
capacity and moral sensitivity which vary from person to person.
The Court considers the applicant’s alternative
formulation, namely that, as someone who did not have the capacity to
understand the obligation to report, she should have been treated differently
from someone who did, to be somewhat more persuasive. It appears to the Court
that the situation of these two groups is sufficiently different to require the
respondent State to objectively and reasonably justify its failure to treat
them differently.
That being said, the Court accepts that
requiring decision-makers to assess levels of understanding or mental capacity
before deciding whether or not overpaid benefits were recoverable would hinder
their recovery and thereby reduce the resources available within the social
security fund. It therefore considers that the decision not to treat the
applicant differently from someone who had the capacity to understand the
requirement to report pursued a legitimate aim, namely that of ensuring the
smooth operation of the welfare system and the facilitation of the recovery of
overpaid benefits.
With regard to the question of proportionality,
the Court recalls that in the context of Article 1 of Protocol No. 1 it has
held that public authorities should not be prevented from correcting mistakes
in the award of benefits, even those mistakes resulting from their own
negligence. Holding otherwise would be contrary to the doctrine of unjust
enrichment, would be unfair to other individuals contributing to the social
security fund, and would amount to sanctioning an inappropriate allocation of
scarce public resources.However, the Court has observed that the above general
principle cannot prevail in a situation where the individual concerned is
required to bear an excessive burden as a result of a measure divesting him or
her of a benefit (Moskal v. Poland, cited above, § 73).
In the present case the Secretary of State took
a number of steps to ensure that the applicant was not required to bear an
excessive burden. In particular, the Court observes that she was not required
to pay interest on the overpaid sums, there was a statutory limit on the amount
that could be deducted each month from her award of income support, and the
amount to be repaid was in fact reduced to reflect the fact that during the
material time she was entitled to, but had not been in receipt of, a disability
allowance. Indeed, the Court observes that it would have been open to the
applicant to request that the Secretary of State waive his right to recover the
overpaid benefit if there was evidence that recovery would be detrimental to
her health or welfare. As she did not make any such request, the Court cannot
accept that the recovery would have had such a detrimental impact.
The foregoing considerations are sufficient to
enable the Court to conclude that any failure to treat the applicant
differently from persons who understood the reporting requirement was
objectively and reasonably justified.
There has accordingly been no violation of
Article 14 of the Convention read together with Article 1 of Protocol No. 1.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holdsthat there has been no violation of
Article 14 of the Convention read together with Article 1 of Protocol No. 1.
Done in English, and notified in writing on 14 February
2012, pursuant to Rule77§§2 and3 of the Rules of Court.
LawrenceEarly Lech Garlicki Registrar President
