Stewart v Secretary of State for Work and Pensions: CA 29 Jul 2011

The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained that the refusal violated her right not to be discriminated against.
Held: The prisoner’s appeal failed. The system did not amount to direct discrimination: ‘The issue at the heart of this case is not whether prisoners are wrongfully denied access to income support for reasons referable to their status as prisoners, but whether they are wrongfully denied access to a funeral payment for such reasons. The short answer is that they are not. If the status in question was not ‘prisoner’ tout seul, but ‘a prisoner who is not entitled to income support’ then the answer would be different. But being a prisoner tout seul did not exclude Ms Stewart from entitlement to all qualifying benefits, and it did not therefore exclude her from entitlement to a funeral payment. Being a prisoner was not ‘the reason why’ she was refused a funeral payment.’
The refusal was accepted to be indirect discrimination. Nevertheless it was justified, because the discrimination was not against prisoners alone, and any adjustment would ‘in turn be subjected to complaint from all the other excluded groups who would complain that they were being unlawfully discriminated against, and in my judgment a decision to that effect in this case would justly expose the court to the charge that it is trespassing in territory in an area of social policy that is properly the preserve of the legislature.’

Rix LJ, Sir Henry Brooke, Dame Janet Smith
[2011] EWCA Civ 907, [2011] UKHRR 1048
Public Health (Control of Disease) Act 1984 46(1), Social Security (Contributions and Benefits) Act 1992 138, Social Fund Maternity and Funeral Expenses (General) Regulations 1987 7, Social Fund Maternity and Funeral Expenses (General) Regulations 2005 7, European Convention on Human Rights 14
England and Wales
CitedJames v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
CitedShamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
CitedRJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
CitedStec and Others v United Kingdom ECHR 6-Jul-2005
. .
CitedCarson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
CitedHumphreys v Revenue and Customs CA 11-Feb-2010
The court was asked as to entitlement to child tax credit where parents were separated but shared the care of the children.
Held: The discretion to be accorded to the legislature or executive is especially wide where the discrimination is . .
CitedShelley v The United Kingdom ECHR 4-Jan-2008
Discrimination on grounds of prisoner status was recognised as falling within ‘other’ status in Article 14: ‘[T]he Court would observe that being a convicted prisoner may be regarded as placing the individual in a distinct legal situation, which . .
CitedEsfandiari and others v Secretary of State for Work and Pensions CA 23-Mar-2006
The claimant argued that the funeral benefits regime unlawfully discriminated against migrants because the 1987 Regulations did not permit payments to be made for a burial abroad, except as provided for by EU law.
Held: The argument was . .
CitedFrancis v Secretary of State for Work and Pensions CA 10-Nov-2005
The applicant had sought payment of a ‘Sure Start’ maternity grant. She had obtained a residence order in respect of her sister’s baby daughter who had been taken into care. She said that a payment would have been made to the partner of a mother or . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Benefits, Human Rights

Updated: 10 November 2021; Ref: scu.442416