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Neutral Citation Number:	2011 UKUT 227 AAC
Reported Number:
File Number:	CIS 2274 2009
Appellant:	VL
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge H. Levenson
Date Of Decision:	14/06/2011
Date Added:	29/06/2011
Main Category:	Human rights law
Main Subcategory:	article 14 (non-discrimination)
Secondary Category:	Income support and state pension credit
Secondary Subcategory:	other: income support
Notes:	Reported as [2012] AACR 10. Income support – prescribed categories of persons entitled – removal of entitlement for lone parents with children aged 12 or over – parent educating children at home – whether legislation ultra vires as in contravention of Education Act 1996 Human rights law – non-discrimination – removal of income support for lone parents with children aged 12 or over The claimant was a lone parent educating her 14-year old twins at home and was in receipt of income support. Paragraph 1 of Schedule 1B to the Income Support (General) Regulations 1987 was amended with effect from 25 October 2008 to remove entitlement from lone parents whose children had reached the age of 12, in accordance with the government policy of encouraging lone parents to work. The Secretary of State decided that the claimant was no longer entitled to income support and she appealed to the First-tier Tribunal on the grounds that the decision infringed her rights under section 7 of the Education Act 1996 to educate her children at home, as she would not be able to continue to do so if she claimed jobseeker’s allowance. The tribunal upheld the decision of the Secretary of State. It found that there was no conflict between the income support rules and the 1996 Act because jobseeker’s allowance advisers were required to accommodate the circumstances of a home educating claimant when considering the contents of the jobseeker’s agreement. The claimant appealed to the Upper Tribunal, arguing that the changes were invalid because they contravened the provisions of the 1996 Act and also that there was a breach of Article 14 of the European Convention on Human Rights by virtue of discrimination on grounds of sex. Held, dismissing the appeal, that: 1. the Upper Tribunal has jurisdiction to determine whether subordinate legislation is invalid not only as being beyond the scope of the enabling power but also if it conflicts with statutory rights already enacted by other primary legislation, provided there is no other reasonable way to exercise such rights. However, section 7 of the Education Act 1996 did not create a specific right to home educate and its provisions did not render the relevant changes to the income support regulations ultra vires or invalid: R v Secretary of State ex parte JCWI and R v Secretary of State ex parte B [1997] 1 WLR 275 cited (paragraph 21 to 28); 2. subject to giving all parties a fair opportunity to make submissions on the relevant points, Convention rights must be considered by the First-tier Tribunal and the Upper Tribunal no matter the stage at which they are raised by the parties (or, in a relevant case, even if they are not raised by the parties) and the Upper Tribunal is free (and is often obliged) to consider points of law on matters other than human rights law even if they have not been raised before the First-tier Tribunal (paragraphs 41 to 47); 3. if the situation of the claimant in R (RJM) v Secretary of State [2008] UKHL 63; [2009] 2 All ER 556 engaged Article 1 of Protocol 1 (peaceful enjoyment of possessions) where his circumstances had changed, then even more so was that true of the present case where the claimant’s circumstances had not changed but there was a change in the law that meant that the claimant lost the entitlement that she had previously had (paragraphs 52 to 55); 4. on the basis of the statistics a disproportionate number of female claimant had their lives made more difficult by the change in the regulations compared with the number of male claimants and that merited an examination of whether the changes pursued a legitimate aim in a proportionate way, although such a difference of treatment required a high threshold of irrationality or disproportionality before the courts would interfere (paragraphs 60 to 61); 5. the Secretary of State had provided a rational explanation for the policy of the law in this case and the methods of achieving the objectives of that policy were proportionate. The legal position in the present case was well within the State’s wide margin of appreciation that the State had in the implementation of social policy and in economic matters (paragraphs 62 to 64).
Decision(s) to Download:	[2012] AACR 10bv.doc [2012] AACR 10ws.doc