[2025] UKUT 259 (AAC)

The original ground of appeal has shifted from the claim to Thlimennos discrimination to a challenge to regulation 11(1)(b), relying on Article 14 read with A1P1, arguing that the discrimination is “indirect discrimination on the basis that the one month standard rule is more likely to affect disabled people” on the basis that disabled people are “at greater risk of losing entitlement of benefit for reasons connected with their status”.

The Secretary of State accepts that the application of regulation 11(1)(b), as a rule governing entitlement to UC, in principle falls within the ambit of A1P1.

It seems to me, however, that ground 2 fails at the outset in that there was no evidence before the Tribunal, however, to establish prima facie indirect discrimination on grounds of disability. There is passing reference to health problems on the part of the Appellant, but little if any to any disability of the Appellant. There was no evidence that the medical condition for which he was treated whilst abroad was linked to any disability. Insofar as there is any, it appears to be to the contrary: the Appellant stated in his reasons for seeking mandatory reconsideration that “the reason for my extended absence was due to unforeseen health issues. While I was abroad, I fell seriously ill and was admitted to a hospital for medical treatment”. There was no evidence establishing that disabled persons generally, as compared to other persons in receipt of UC, are more likely to be unable, if they experience a health emergency abroad, to travel home within the 1 month standard disregard period. Those factual matters were simply not explored before the Tribunal because the ground of appeal was not advanced. Nor has the deficiency been made good before me. The furthest that could be said was that the Appellant’s hospital admission included treatment for bronchial asthma and that he was treated with oxygen and nebulisers, but there was also reference to depression, stool incontinence and typhoid.

I agree with Ms Ivimy KC that these evidential deficiencies mean that there is no proper basis on which I can proceed to make a finding that the legislation on its ordinary meaning indirectly discriminates against disabled people generally or the Appellant in particular, nor any basis on which I can seek to interpret regulation 11(1)(b)(i) under s. 3 of the HRA) in a Convention compliant way.

In this respect it is sufficient to cite the Privy Council in Imperium v Jersey Competent Authority [2025] UKPC 28 at [77-79]:

“77.

This lack of relevant evidence is likely to have contributed to the failure on the part of the Court of Appeal to focus on the essential issue which was whether the operation of the costs rule in its application to Imperium’s participation in these legal proceedings infringed any right of Imperium under article 6(1). Instead, it focussed on the more abstract question of whether the legislation was compatible with article 6(1), as if it were an ab ante challenge to the legislation.

78.

While it is possible in certain circumstances to bring a general challenge to legislation on ECHR grounds, this is exceptional and a violation of the ECHR is usually required to be established by reference to the manner in which the law has been applied to the claimant in the specific circumstances of the case. In Verein KlimaSeniorinnen Schweiz v Switzerland, a Grand Chamber of the European Court of Human Rights observed:

“460.

The Convention does not provide for the institution of an actio popularis. The Court’s task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, for instance, Roman Zakharov v Russia [GC], (Application No 47143/06), para 164, ECtHR 2015, with further references). Accordingly, a person, non-governmental organisation or group of individuals must be able to claim to be a victim of a violation of the rights set forth in the Convention. The Convention does not permit individuals or groups of individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Aksu v. Turkey [GC], (Application Nos 4149/04 and 41029/04), paras 50-51, ECtHR 2012).”

79.

It was Imperium’s case that the 2018 Law should be read down so as to be given effect in a way which is compatible with Convention rights (under article 4 HRL) or alternatively that it should be declared incompatible with Imperium’s Convention rights (under article 5 HRL). In either case, it is necessary to focus on the effect of the 2018 Law as applied to Imperium’s case. In R (Z) v Hackney London Borough Council [2020] UKSC 40; [2020] 1 WLR 4327 Lord Sales explained (at para 114) with regard to section 3 of the United Kingdom Human Rights Act 1998 (the equivalent provision to article 4 HRL):

“The proper approach to construction is that legislation should be read and given effect in a particular case according to its ordinary meaning, unless the person who is affected by it can show that this would be incompatible with their Convention rights under the [Human Rights Act 1998] … as applied to their case. Only then do the special interpretive obligations under section 3(1) of the [Human Rights Act] … come into play to authorise the court to search for a conforming interpretation at variance with the

ordinary meaning of the legislation.”

The position with regard to section 4 of the United Kingdom Human Rights Act 1998 (the equivalent provision to article 5 HRL) is very similar. In R (Chester) v Secretary of State for Justice [2013] UKSC 63; [2014] AC 271, although Baroness Hale accepted that there may be occasions when it might be appropriate to make a declaration of incompatibility in the abstract, irrespective of whether the provision in question is incompatible with the rights of the individual litigant, she continued (at para 102):

“But in my view the court should be extremely slow to make a declaration of incompatibility at the instance of an individual litigant with whose own rights the provision in question is not incompatible. Any other approach is to invite a multitude of unmeritorious claims.”

In my judgment, and on the present state of the evidence, it would be wholly impermissible to seek to apply s. 3 of the HRA or making findings that legislation is not compatible with Convention rights on an abstract or hypothetical basis, without close regard to the specific facts of the claimant’s case (which were never determined because the point was not in issue). I do not therefore need to have further regard to Ground 2, which fails at the outset.