Law Commons^™

Surrogacy, Equal Status And Social Welfare Benefits, Mel Cousins

Mel Cousins

Social Security, Discrimination And Justification Under The European Convention On Human Rights, Mel Cousins

Mel Cousins

This article considers the current state of the law concerning justification of potentially discriminatory treatment in the area of social security under the European Convention on Human Rights. Over time the UK courts have become familiar with the Convention and have improved their interpretation of human rights law and, in particular, non-discrimination under Article 14 of the Convention. The final step in this process is the consideration of proportionality in relation to the justification of potentially discriminatory provisions. There have been a number of recent important decisions on this issue from the Supreme Court including the Recovery of Medical Costs …

The European Convention On Human Rights, The Un Convention On The Rights Of The Child And The ‘Benefit Cap’ - R (Sg) V Secretary Of State For Work And Pensions [2015] Uksc 16, Mel Cousins

Mel Cousins

This note looks at the recent decision of the UK Supreme Court in the 'benefit cap' case. The Court narrowly rejected the appeal concerning whether the benefit cap was in breach of Article 14 of the European Convention on Human Rights but some judges would have held that the cap was in breach of the UN Convention on the Rights of the Child.

Disability Pensions, Property Rights And Legitimate Expectations: Béláné Nagy V. Hungary, Mel Cousins

Mel Cousins

Mobility Allowance And The Law, Mel Cousins

Mel Cousins

The Irish government has recently announced the abolition of the mobility allowance and motorised transport grant. It appears that this decision was heavily influenced by the Government’s view that ‘the schemes are illegal in the context of the Equal Status Acts’. Although the reform options considered and legal advice received have not been specified, the impression has been created that reform would be very complex and that it would be impossible to reform the existing scheme to make it legally compliant without a major increase in its budget. This note discuses the legal issues concerning the operation of the mobility …

Equal Treatment And Objective Justification In Social Security Cases Under The European Convention On Human Rights, Mel Cousins

Mel Cousins

This article discusses recent UK case law on equal treatment and social security with particular reference on objective justification in two important recent decisions: the Supreme Court decision in Humphreys and the Court of Appeal’s judgement in Burnip. There has been a marked and progressive improvement in the analysis of equal treatment issues under the ECHR by the UK courts. Decisions of European Court have helped to clarify that Article 14 is not narrowly confined to the grounds set out in Article 14 and that a broader range of statuses are also covered. The more flexible approach to comparators has …

A Case Of Premature Litigation: Surrogacy, Equal Protection And Social Welfare Benefits, Mel Cousins

Mel Cousins

The issue of surrogacy in Irish law has received considerable (if somewhat belated) attention following the decision of the High Court to recognise a surrogate mother as the child’s mother for the purposes of birth certification. The Equality Tribunal has also referred to the European Court of Justice a complaint in which it has been argued that the failure to provide leave to a surrogate mother was in breach of EU and international law. A claim has also been brought under the Equal Status Acts (ESA) arguing that the failure of the Department of Social Protection (DSP) to provide a …

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (January-March 2012), Mel Cousins

Mel Cousins

Unusually, there were only a small number of significant rulings by either the Court of Justice or the Court of Human Rights in the period January-March 2012. In Markin v Russia the Court of Human Rights showed its positive side, ruling that the exclusion of servicemen from entitlement to parental leave, while servicewomen are entitled to such leave, was in violation of Article 14 taken in conjunction with Article 8. However, the other important case considered by the Court – B. v United Kingdom – unfortunately makes no contribution whatsoever to the protection of human rights. The Court of Human …

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (September-December 2011), Mel Cousins

Mel Cousins

In the period, there was an interesting case before the European Court of Justice concerning the equal treatment Directive (79/7), while the European Court of Human Rights has given some important judgements in a number of cases on social security as a property right. Finally, the Court of Human Rights has again addressed the position as to when and why an oral hearing is required in social security cases but without greatly clarifying anything.

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (April-June 2011), Mel Cousins

Mel Cousins

In this article, we review developments in the case law of the European Court of Justice and Court of Human Rights in the period April to June 2011. In contrast to the last issue which focussed on a number of key judgments – mainly involving an interpretation of the Treaty provisions − that look likely to have an important impact on social security issues, this issue returns to the more mundane case law of the two courts on issues such as the co-ordination of social security for migrants and the application of the right to fair hearing and non-discrimination in …

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (July-September 2011), Mel Cousins

Mel Cousins

In this article, we consider two important decisions: one of the Court of Human Rights on the rights of prisoners which concerns access to pension insurance (Stummer); and one from the Court of Justice concerning the link between residence and social security (Stewart). On the legislative front, not much happened.

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (November 2010-March 2011), Mel Cousins

Mel Cousins

In this article, we review developments in the case law of the European Court of Justice and Court of Human Rights and EU legislative developments in the period November 2010 to March 2011. We focus on a number of key judgments – mainly involving an interpretation of the Treaty provisions − which look likely to have an important impact on social security issues: in particular, Test-Achats, concerning the incompatibility of secondary legislation allowing insurance products (including pension annuities) to be calculated by reference to gender-based actuarial factors, Casteels, concerning the impact of free movement on the co-ordination of occupational pensions …

Benefit Overpayments, The Common Law And Human Rights, Mel Cousins

Mel Cousins

This article examines the issue of benefits overpayments in UK social security law. Current estimates put the level of overpayments due to error (as opposed to fraud) at about £2 billion per annum. Concern about his issue has led to the publication of a DWP statement of strategy and an attempt by DWP to use the common law to recover overpaid benefits. The article looks at a number of recent court decisions which have important implications for UK practice.

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (August-September 2010), Mel Cousins

Mel Cousins

In this update, we look, in particular, at a number of recent decisions of the Court of Human Rights concerning the rights of same-sex couples and the rights of unmarried couples (Yiğit; Manenc; and J.M. v United Kingdom); and several decisions by the Court of Justice concerning free movement and the co-ordination of social security benefits, including cross-border access to health care and family benefits.

Secretary Of State For Work And Pensions V. Sister Is, Mel Cousins

Mel Cousins

This case before the Upper Tribunal concerned the rules of the state pension credit (SPC) which, in effect, provide that ‘members of religious orders’ who are ‘fully maintained by their order’ have no entitlement to a state pension credit. As the Three-Judge Panel pointed out this is the rule ‘regardless of the actual amount of their income or their other circumstances’. The case concerned both the interpretation of these two phrases and – assuming the Panel found that they applied to the claimants – the compatibility of such an approach with the European Convention on Human Rights (the Convention issue).

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (October-December 2009), Mel Cousins

Mel Cousins

This note considers the decisions in Skugar v. Russia (40010 04) on freedom of religion and tax social security numbers; the Court of Human Rights decisions in Bladh v. Sweden (46125 06), Si Amer v France (29137 06) and Wieczorek v. Poland (18176 05); Case C-3 08 Leyman and Case C-314 08 Filipiak on free movement of workers and social security; and Case C-363 08 Slanina on family benefits.

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (May-July 2010), Mel Cousins

Mel Cousins

In this review, we look, inter alia, at a number of decisions of the Court of Human Rights including rulings concerning the rights of same-sex couples (Schalk and P.B. v Austria); a case which considers the position concerning the Convention and the transfer by a local authority of a resident to a new residential care home (Watts); and an interesting case concerning the scope of ‘other status’ under Article 14 of the Convention (Peterka). We also consider a number of ECJ cases including a further ‘development’ of the Court’s case law with regard to cross-border access to health care (Commission …

Human Rights, Anti-Discrimination And Social Security Benefits: Recent Uk Case Law, Mel Cousins

Mel Cousins

Since the adoption of the Human Rights Act 1998, challenges to UK social security law on the basis of the European Convention on Human Rights have become common - especially under the anti-discrimination provisions of Article 14. However, few of these challenges have been successful and, in general, the English courts have shown a poor understanding of the principles of human rights law. The recent decisions of the European Court of Human Rights in Stec (2005) 41 EHRR SE 295 and the House of Lords in RJM (2008) UKHL 63 have clarified important issues including the material scope of the …

The European Convention On Human Rights, Non-Discrimination And Social Security: Great Scope, Little Depth?, Mel Cousins

Mel Cousins

This article examines the non-discrimination provisions of the European Convention on Human Rights in relation to social security law. There is a now a broad power of review under the ECHR as most social security payments fall within the scope of the Convention. There is also a more flexible approach to the grounds upon which discrimination can be challenged under Article 14. However, it is suggested that the European courts may need to adopt a more nuanced (or proportionate) approach to equality review rather than a binary approach.

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (January-March 2009), Mel Cousins

Mel Cousins

In period covered there have been a number of interesting decisions of both the Court of Justice and the Court of Human Rights concerning social security issues. The Court of Human Rights addressed issues of gender and nationality discrimination in Weller and Andrejeva while the Court of Justice addressed further issues concerning cross-border health care and competition as it affects the organisation of social security. In part 2, we also examine the current Commission proposal which would extend protection against discrimination on the basis of religion or belief, disability, age, or sexual orientation to social protection and provide an update …

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (April-September 2009), Mel Cousins

Mel Cousins

In the period covered there have been two interesting decisions of the Court of Justice and the Court of Human Rights concerning the current boundaries of the scope of equality as it applies to social security issues. The Court of Human Rights addressed issues of discrimination against homosexual couples in M.W., while the Court of Justice rejected a claim in relation to social security treatment while on parental leave in Gomez-Limon. Meanwhile, the concept of European citizenship continued to develop – if in a somewhat erratic manner. The Court of Justice, in Rüffler, ruled that national tax rules in relation …

Widow's Pension And Gender Equality: Runkee V. United Kingdom, Mel Cousins

Mel Cousins

The long litigation saga involving the compatibility of UK legislation on survivors’ benefits appears to have come to a (not particularly glorious) end with the European Court of Human Rights’ (ECtHR) decision in Runkee and White v United Kingdom. This case involved a challenge to the compatibility of national law on the payment of widows’ pensions solely to women, similar to that considered by the House of Lords in Hooper and the ECtHR came to a similar conclusion holding that UK law was not incompatible with the European Convention on Human Rights.

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (May-September 2008), Mel Cousins

Mel Cousins

This note examines the decisions in Kehoe v United Kingdom (2010 06), I v Finland (20511 03) and Case C-228 07 Petersen.

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (October-December 2008), Mel Cousins

Mel Cousins

Recent cases before the Court of Justice and Human Rights have focussed on the issue of residence – highlighting once again the importance of this issue in a social security context. First, the Court of Justice has given what is, in effect, its first judgement on the relationship between the EU residence directive (2004/38), EU citizenship and the right to social provisions or social advantages (in this case an education maintenance grant). Given the importance of this case, it is reported in full below (Förster). Secondly, the Court of Justice has again considered the export of benefits for victims of …

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (December 2007-February 2008), Mel Cousins

Mel Cousins

This has been a relatively quiet period in the Court of Justice as concerns social security case law. There has been only one important 1408 case (Habelt) in which the Court reflects further on its case law on citizenship (albeit almost without mentioning the concept). The Court also decided the Klöppel case in which it ruled that Regulation 1408/71 required a Member State to take into account, for the purposes of family benefits, the period during which a comparable benefit was received in another Member State as though that period had been completed in its own territory. The Court might …

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (March-May 2008), Mel Cousins

Mel Cousins

This article looks at recent cases before the ECHR and ECJ concerning pensions and same-sex couples, citizenship and residence, UN sanctions and social security, and Regulation 1408/71.

Overview Of Recent Cases Before The European Court Of Human Rights And The European Court Of Justice (October - December 2007), Mel Cousins

Mel Cousins

This article examines recent cases before the ECHR and ECJ on issues such as special non-contributory benefits and Regulation 1612/68; nationality nationality and other discrimination, EU competition law and payment of social security benefits; social insurance for prisoners; and delay in rectifying a breach of the International Covenant on Economic, Social and Cultural Rights.