Application to the European Court of Human Rights
Last night Declan decided it was time to go on the offensive … after some guy threw a glass of beer all over us as we slept in the porch. I actually woke up – it was 11.00pm – because I felt my face wet. Our sleeping bags, the shoulder bag I use as a pillow and the black bags Declan uses for our rucksacks were also wet. Even the wall we have our heads against had beer all over it. Declan was not happy at all and said that things were too hot and to be on the safe side we should leave the porch straight away. "There is a guy out there and he probably hasn't even started yet," I was informed, "and tomorrow I'm posting my application to the European Court." Well, I should know: on 4 May I was assaulted twice – at 11.30pm some guy dragged me out of the porch by the ankles and at 3.45am I was kicked in the back.
So we took a bus into Oxford Street and then walked all the way to Leicester Square where we found a 24-hour internet café. And this afternoon Declan sent the application off with his urgent request for expedition (which can be read in the previous blog).
A long time ago, we sniffed a loophole in the law relating to jobseeker’s allowance – the Department of Work and Pensions actually used it against me. More often than not, apparently, it is the quality of the domestic law, or even the absence of legal regulation, which leads to violations of Article 8 of the Convention (the right to respect for one's private and family life). Anyway, this loophole can be found in paragraph 58 below – my favourite paragraph, probably because I put so much work and research into it (the abbreviation JSAg stands for Jobseeker's Allowance Agreement). Here's the application:
ANNEX TO THE APPLICATION UNDER ARTICLE 34
OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
CONTENTS
Summary
Statement of the facts
Relevant domestic law and practice
Statement of alleged violations of the Convention and relevant argument
Statement relevant to Article 35
Statement of the object of the application
SUMMARY
1. This application concerns a serious violation of the applicant’s right to respect for his private and family life arising from the refusal of his local jobcentre to accept his wife’s proposed jobseeker’s agreement for referral to an adjudication officer in accordance with section 9(6)(a) of the Jobseekers Act 1995. As a result of the refusal, the applicant’s and his wife’s entitlement to JSA was twice suspended and then ceased, and they are currently sleeping rough on the streets of London. The applicant invokes Articles 8 and 13.
2. The applicant submits that the interference with his rights under Article 8 was not prescribed by law, that it did not pursue any of the legitimate aims in Article 8(2), and that the interference was not necessary in a democratic society. He also submits that there was no effective remedy available in respect of the interference, in violation of Article 13.
STATEMENT OF THE FACTS
3. The applicant, Declan Heavey, a former teacher, was born in Dublin in 1960 and has been sleeping rough in London with his wife since 3 November 2006. His wife, a former psychologist and an Irish citizen, was born in Madrid in 1965. They were married in July 1993, and have no children. In September 2003 the applicant and his wife moved from Dublin to Birmingham, England, where they were self-employed until July 2005. They attempted to set up an international secular humanist organisation called NAC (Network of those Abused by Church), for which the applicant’s wife developed a website at www.nac1.bravehost.com. While self-employed, they covered their expenses with savings of £44,000, the remnants of the applicant’s late father’s will.
Entitlement to Jobseeker’s Allowance (JSA)
4. In July 2005 the applicant and his wife applied for Jobseeker’s Allowance (JSA) at their local Jobcentre Plus (JCP), Birmingham Erdington Jobcentre Plus. As a result of having been out of the labour market for a number of years, on page 4 of the form ES2JP Your job search plans that they were required to fill out as part of their respective Jobseeker’s Agreement dated 25 July 2005 the applicant indicated that he was looking for temporary work that would enable him to take up training to start his own business, and his wife indicated that she was looking for temporary work that would enable her train for a career change.
5. By letter dated 16 August 2005 the JCP confirmed that the applicant’s entitlement to JSA commenced as from 21 July 2005, and that his fortnightly entitlement was the full allowance for married couples of £176.30. (By letter dated 31 August 2005 Birmingham City Council, having been provided with proof of the applicant’s JSA award, confirmed that the applicant’s entitlement to Housing Benefit commenced as from 18 July 2005, and that his fortnightly entitlement was the total sum of his rent of £100.00.)
6. On 14 December 2005 the applicant’s wife attended an advisory interview at the JCP Office to review her Jobseeker’s Agreement (JSAg) in respect of her JSA on the applicant’s claim. On page 4 of the form ES2JP that she was required to fill out as part of her second JSAg dated 14 December 2005, her indication to JCP that she would only be available for temporary work was not considered by the Adviser Manager, Mr Richard Bridge, to be a restriction on her availability for work.
First suspension of JSA payment
7. On 11 August 2006 the applicant attended an advisory interview at the JCP Office to review his JSAg. On page 4 of the form ES2JP that he was required to fill out as part of his second JSAg dated 11 August 2006, his indication to JCP that he would only be available for temporary work was not considered by Mr Bridge to be a restriction on his availability.
8. On 14 August 2006 the applicant’s wife attended an advisory interview at the JCP Office to review her JSAg for the second time. As with her two previous JSAgs, she did not limit the days or hours she was be available for work, and was willing to work as a cleaner, an office worker or in child care. Nonetheless, the employment officer, Mr Graham Allsop, threatened that he would suspend her JSA unless she extended the nature of the employment for which she would be available to include permanent work. She did not think that this was reasonable and asked Mr Allsop to refer her proposed JSAg for temporary work only to an adjudication officer, but he refused to do so. (Mr Allsop not only refused to accept the applicant’s wife’s ES2JP, but did not provide her with any alternative way to present her proposed JSAg to an adjudication officer.)
9. At that time the applicant’s wife was attending a course leading to a City & Guilds Level 1 Certificate in Using IT which she commenced on 7 December 2005 at TBG Learning in association with City College Birmingham, and was due to commence another course on 5 September 2006 at the University of Central England (UCE), having successfully completed two units in a UCE programme leading to a CPS Multimedia Design and Production. In accordance with the 16-hour study rule which allows claimants of JSA to study part-time for up to 16 hours per week, a place had also been reserved for her on three additional UCE short courses: (i) Introduction to Java and Its Applications commencing on 10 October 2006 for four Tuesdays, (ii) Further Java and Its Applications commencing on 27 February 2007 for four Tuesdays, and (iii) PC Software and Hardware commencing on 23 April 2007 for 12 Mondays.
10. By letter dated 15 August 2006 the applicant advised the Manager of JCP, Ms Beverly Coombes, that his wife would not sign a new JSAg without the acceptance by JCP of her proposed JSAg for referral to an adjudication officer, and sent a copy of this letter to the Secretary of State for Work and Pensions. On 16 August Mr Bridge wrote to the applicant summoning him and his wife to an advisory interview at 2.00pm on 18 August, their next “signing day” when they were due to attend the JCP Office for their fortnightly jobsearch review and signing of the standard declaration that, inter alia, they were available for employment and were actively seeking employment. The applicant replied by letter dated 17 August, advising Ms Coombes that his wife would not attend the advisory interview without the acceptance by JCP of her proposed JSAg for referral to an adjudication officer, and sent a copy of this letter to the Secretary of State for Work and Pensions.
11. On 18 August 2006 the applicant’s wife attended the JCP Office at 9.50am for her usual fortnightly jobsearch review and “sign on”, subsequent to which Mr Bridge refused to accept her proposed JSAg for referral to an adjudication officer. In accordance with the applicant’s letter of 17 August, the applicant’s wife informed Mr Bridge that she would not participate in the advisory interview with him later that afternoon. Following the applicant’s fortnightly jobsearch review (during which time he returned a completed Actively Seeking Employment stencil for the period 27 July to 18 August 2006) and sign on at 2.00pm on 18 August, Mr Bridge again refused to accept his wife’s JSAg for referral to an adjudication officer. The applicant told Mr Bridge that he would not participate in an advisory interview with him under such circumstances.
12. By separate letters dated 18 August 2006 Ms Coombes advised the applicant and his wife that their respective JSA had been suspended as from 19 August as it appeared that, from 19 August, they “may not be available for work”.
13. Having been deprived of the adjudication officer’s direction in respect of his wife’s proposed JSAg and, in the event of any adverse decision, further rights of appeal, on 24 August 1996 the applicant applied to the High Court for leave to apply for an urgent judicial review of the JCP’s suspension of benefit arguing that the suspension was irrational (see below).
14. The decision to lift the suspension of benefit was communicated to the applicant and his wife by respective letter dated 13 September 2006 from Newcastle DMA Sector Office. An adjudication officer, having considered the applicant’s and his wife’s answers to respective questionnaires dated 25 August and 1 September, decided that the doubt as to their availability for work could be removed and any arrears due to them be paid.
Second suspension of JSA payment
15. On 15 September 2006 Mr Bridge again wrote to the applicant and his wife summoning them to separate advisory interviews with him in the JCP Office on 19 September. Having received both letters by hand when he signed on, the applicant replied by letter dated 15 September advising Mr Bridge that neither he nor his wife would attend an advisory interview without confirmation that his wife’s proposed JSAg would be accepted for referral to an adjudication officer.
16. By separate letters dated 19 September 2006 Ms Coombes advised the applicant and his wife that their respective JSA had been suspended as from 19 September due to the applicant and his wife having “failed to attend an interview with an adviser”.
17. The decision to lift the suspension of benefit was communicated to the applicant by letter dated 25 September 2006. Ms Coombes confirmed that the JCP could not pay his joint claim JSA from 19 September, but would pay the claim from 21 September.
Entitlement to JSA ceased
18. The applicant and his wife attended the JCP Office on 29 September 2006 to sign on at their respective times, as they were required to do every second Friday, but were prevented from doing so without explanation. On 29 September the applicant wrote to Ms Coombes seeking an explanation, and sent a copy of this letter to the Secretary of State for Work and Pensions.
19. On 30 September 2006 the applicant received a letter of 27 September from Ms Coombes advising that the entitlement of the applicant and his wife to JSA was ceased as from 19 September "because you did not attend to sign your declaration”. On 30 September the applicant replied to Ms Coombes advising of the mistake, and sent a copy of this letter to the Secretary of State for Work and Pensions.
20. Subject to regulation 27(1) of the Jobseeker’s Allowance Regulations 1996, entitlement to JSA shall not cease if the claimant shows, before the end of the fifth working day after the day on which he failed to provide a signed declaration, that he had a good cause for the failure. Nonetheless, the JCP neither changed the decision of 27 September 2006 to cease the applicant’s and his wife’s entitlement to JSA nor provided an explanation as to why they would not do so, the latter of which the applicant was entitled to within one month of the date of the decision letter for an automatic right to appeal to a social security appeal tribunal. (All the applicant received from JCP was a letter Mr Bridge wrote on 5 October 2006 acknowledging receipt of, inter alia, letters from the applicant dated 29 and 30 September 2006.)
21. The consequences of the decision to cease the applicant’s and his wife’s entitlement to JSA was extremely distressing and humiliating for them both. They were left with no income, savings exhausted, and were entitled neither to JSA hardship provision (JSA at a reduced rate) nor a Social Fund loan (unable to repay). The most difficult consequence for them was to have to decide whether to go homeless in London or in Birmingham. They chose London because the pursuance of their claim through the national courts was accessible, capable of providing redress in respect of the applicant’s complaint, and offered reasonable prospects of success. The applicant submits that they would have been more vulnerable and insecure had they stayed in Birmingham, especially as the applicant had been deprived of his automatic right to appeal to a social security appeal tribunal. Moreover, their employment prospects in Birmingham had been severely compromised: in an interview with any prospective employer it would have transpired that they had been rendered homeless having had their entitlement to JSA ceased by a jobcentre in the city.
Sleeping rough in London
22. Since 3 November 2006 the applicant and his wife have been sleeping rough in the porch of an office building in the heart of London’s business district. On 22 November 2006, the Dellow Centre recorded on the applicant’s wife’s registration form that St Mungo’s, London’s largest homelessness organisation, had informed the Centre that neither the applicant nor his wife could be referred to a hostel “due to not being on any benefits”. The last ten months have been physically, mentally and emotionally draining for the applicant and his wife. Throughout this time, they have had to cope with a severe and unnecessary strain upon their lives.
23. On 18 November 2006 a stocky man in his thirties sat on the right hand side of the applicant’s wife’s face while she was sleeping. On 4 May 2007 the applicant’s wife was asleep in her sleeping bag when a passer-by grabbed her hard by the ankles, dragged her in an arc down the two marble steps of the porch and, having turned her a full 180 degrees, dragged her a further three or so metres down the pavement before releasing her and walking off. Later that night, with her back to the street and her head inside her sleeping bag, she was kicked in the back by a passer-by with the sole of his shoe. The first of these two assaults left the applicant’s wife with severe bruising on her left thigh and forearm that lasted two weeks, as well as with a sore left wrist and little finger. On 1 July 2007 the applicant was woken by a well-dressed passer-by that lent over his wife and hit him in the thigh. On 27 July a passer-by threw two unopened plastic bottles of mustard at an unused door the applicant uses to prop his pillow rest against, each one narrowly missing the applicant’s head on its fall. On 26 August a passer-by threw a metal Metropolitan Police A-board (for traffic redirection) onto the steps of the porch, the handle end of which hit the applicant’s wife on the back while she was sleeping. On 7 September a passer-by threw a glass of beer over the applicant and his wife while they were sleeping.
24. On 26 and 28 February 2007 the alarm on the wall of the porch they sleep in sounded and flashed all night. Frequently the applicant and his wife have to endure the sounding and/or flashing alarm (most recently on 13 August), people going in and out of the office building through the porch door at all hours of the night (most recently on 6 September) and noisy and intrusive passers-by (most recently on 7 September). There are some nights the applicant and his wife only get a few hours sleep.
25. On 17 February 2007 the applicant was punched twice in the face in an unprovoked attack by a homeless man in the canteen of the Whitechapel Mission (Crime Reference No. 4204886/07). On 21 May the applicant applied under the Data Protection Act 1998, as advised by the Metropolitan Police Service, for a copy of the witness statement that the Metropolitan Police took from him at Bethnal Green Police Station on 27 April 2007 in respect of the assault, but the statement was never provided to him (see copy of the applicant’s letter and enclosures of 25 July 2007 to the European Commissioner for Internal Market and Services in Supporting Documents, pp. 27-43). On 18 June the applicant’s wife was assaulted by a homeless woman in the canteen of the Whitechapel Mission (Crime Reference No. 4217341/07). Later that morning the manager of the Mission barred the applicant and his wife due to concerns about their safety. On 19 June the applicant lodged a complaint with the Charity Commission in respect of the bar (see copy of the applicant’s letter and enclosures of 17 August 2007 to the President of the European Commission in Supporting Documents, pp. 64-78).
26. According to the website “Whitechapel Mission” (http://www.whitechapel.org.uk), the Methodist Church-run Whitechapel Mission is “often the only place open weekends, Bank Holidays, Christmas and Easter” and “the only place to obtain a cooked breakfast in the City or the East End”. The barring of the applicant and his wife from the Whitechapel Mission has had a very detrimental and disruptive impact on their lives, not least because they have been reduced to washing in public toilets.
27. On 18 December 2006 the applicant was admitted to Chelsea and Westminster Hospital for interstitial pneumonia. In the Discharge Summary Report dated 20 December 2006 (see Supporting Documents, p. 26), the applicant’s doctor, Dr M Feher, recorded that the applicant was admitted feeling feverish with cough, shortness of breath, and a chest pain that was worse on breathing, worse on inspiration. Dr Feher also noted that the applicant had not been eating due to lack of finance and had an episode of loss of consciousness, witnessed by his wife. Since then, the applicant’s physical health has deteriorated significantly. He has lost a lot of weight, and on 2 August 2007 attended the Accident & Emergency department at the Royal London Hospital. The Certificate of Attendance (see Supporting Documents, p. 52) records that he attended with an upper respiratory tract infection, for which he was prescribed a course of antibiotics to follow for five days (to prevent the infection travelling to the lung tissue to cause pneumonia).
28. The applicant and his wife have been surviving on the streets of London by selling The Big Issue magazine, which is sold on the streets by homeless people. Frequently of late the applicant and his wife have had to walk off their pitches in order to avoid confrontation with other street traders. The applicant has lodged complaints with The Big Issue in respect of the intrusion onto his and/or his wife’s pitch of other Big Issue vendors and distributors of, inter alia, London Lite, The London Paper, City AM and Sport (see copy of the applicant’s letter and enclosures of 30 August 2007 to the founder and editor-in-chief of The Big Issue in Supporting Documents, pp. 79-87).
29. Since 20 July 2007 and as a consequence of not being able to sell enough Big Issues, the applicant and his wife have been unable to afford transport (for the last seven weeks they have been walking everywhere with all their belongings), clothes or other basic necessities, and have been eating very poorly. On 6 August the applicant had to withdraw £200 from his Yorkshire Building Society account (see Supporting Documents, p. 53), the last of the money he and his wife had been saving to put down a deposit on a flat. (The Big Issue had told the applicant that if he had £350 for a deposit they would be able to find him and his wife somewhere to live.) The applicant and his wife are extremely concerned that they will be further reduced to begging – a criminal offence in England.
30. On 1 September 2007 the applicant made a statement to the City of London Police at Bishopsgate Police Station following the arrest of a beggar for the racist and discriminative abuse of the applicant while he was selling The Big Issue the day previous, and a subsequent threat to kill (see copy of the applicant’s witness statement of 1 September 2007, with attachment, in Supporting Documents, pp. 88-94).
31. The applicant submits that neither he nor his wife have been able to obtain any kind of gainful employment as a result of their particular circumstances. The City of London Police has visited them at the porch they sleep in on twelve occasions to date. On 10 August they were each issued a stop and search ticket stating that the reason for the stop was “welfare”, and that the outcome was “satisfactory”.
The judicial review proceedings
32. The applicant issued a judicial review letter before claim to JCP on 14 August 2006 stating that in his view the JCP had acted unlawfully in suspending his joint claim JSA, having refused to accept his wife’s proposed JSAg that was the subject of an interview on 14 August, and inviting JCP to specify under what statutory powers it had purported to act in not accepting the JSAg for referral to an adjudication officer. Mr Bridge replied on 16 August without providing the explanation requested as to the statutory basis for the refusal of the JSAg, but summoning the applicant and his wife to an advisory interview with him on 18 August. As set out above in paragraphs 10-12, the applicant and his wife refused to attend an advisory interview without the acceptance by JCP of the applicant’s wife’s proposed JSAg for referral to an adjudication officer in accordance with section 9(6)(a) of the Jobseekers Act 1995, and the applicant’s joint claim JSA was suspended as from 19 August as it appeared that, from 19 August, the applicant and his wife “may not be available for work”.
33. On 24 August 2006 the applicant applied to the High Court for leave to apply for an urgent judicial review of the JCP’s suspension of benefit arguing that that suspension was irrational. The applicant sought the following remedies:
(i) a mandatory order that JCP cause the applicant’s joint claim JSA to be reinstated immediately; and
(ii) a mandatory order that JCP pay the accumulated arrears to the applicant.
34. The matter came before Mr Justice Sullivan for consideration (on the papers) on 25 August 2006. Sullivan J found as follows:
The Defendant’s time for filing and serving its Acknowledgement of Service and Summary Grounds is abridged from 21 to 14 days.
I am not prepared to grant interim relief without having given the Defendant a reasonable opportunity to respond to the claim. I question whether judicial review is an appropriate remedy at this stage. Is there no internal appeal/review process whereby such a decision can be reconsidered?
35. On 13 September 2006 an adjudication officer of Newcastle DMA Sector Office decided that the doubt as to their availability for work could be removed and any arrears due to them be paid (see paragraph 14 above).
36. Summary Grounds (see Supporting Documents, pp.16-21) for contesting the applicant’s claim for judicial review by the Secretary of State for Work and Pensions was submitted to the High Court on 14 September 2006. The Secretary of State argued that the decision to suspend benefit was lawful. Further it was submitted that the application for judicial review was premature and/or disproportionate. The applicant observes that the Secretary of State’s argument is confined to the suspension of the applicant’s individual claim for JSA exclusively. It is submitted that the underlying issue in dispute could not sensibly have been addressed without reference to the suspension of the applicant’s wife’s JSA on his claim. The applicant makes the following points in reply to the Secretary of State’s summary of grounds:
37. Leave to apply for judicial review was initially refused (on the papers) by Mr Justice Collins on 13 October 2006. Collins J found as follows:
I appreciate that, despite the decision of 13 September to reinstate payment, the claimant is concerned that the defendants are not dealing properly with his wife’s ES2JP. But judicial review is not the correct route – the claimant (or his wife) must exercise any appeal rights to deal with what is said to be a wrong decision which results in detriment to him. Judicial review is a remedy of last resort. I make no order for costs at this stage, but the claimant must realise he may be vulnerable to such an order if he persists and it is held that he has no arguable claim.
38. The application for leave was renewed on 17 October 2006. The applicant stated, inter alia, the following:
In reference to the order made by Mr Justice Collins on 13 October, the decision of 13 September to reinstate payment of my joint claim for Jobseeker’s Allowance was disingenuous, given the termination on 27 September of the claim from 19 September because I did not attend to sign my declaration when my “sign on” day was two days later on 29 September.
It is claimed that this irrational termination of benefit is no more than an alternative measure to deny my wife her right to have a decision maker decide – through the acceptance by JCP of her ES2JP in the first instance – whether or not her looking for a temporary job is considered to be available for work under the provisions of the Jobseeker’s Act 1995. (Emphasis added)
39. Following an oral hearing on 11 December 2006, the application for leave to apply for judicial review was dismissed by Mr Justice Walker. A request for leave to appeal to the Court of Appeal was rejected. He said the following in his judgement:
The question that I have to decide is whether permission should now be given for this claim to proceed. I shall examine first the question in relation to the suspension in August. As to that, the suspension was reversed. Sullivan J was shown to have been absolutely right to question whether there was an internal procedure that could assist the claimant. There was and it did. The claim for judicial review was brought at a stage when the internal process was underway. It was, in my view, plainly premature. (27)
40. On the ceasing of the applicant’s and his wife’s entitlement to JSA on 27 September 2006, from 19 September, Walker J found as follows:
On the primary question, which is the complaint about the suspension [sic] from 19th September onwards, it seems to me that the position is absolutely clear. The Department sent a letter of 27th September which claimed to justify that suspension [sic]. Mr Heavey disputed that claim. He could and should have sought an appeal. Having failed to follow the internal procedure, it would be quite wrong for this court to give him permission to apply for judicial review. Accordingly, this application for permission to apply for judicial review as renewed orally is refused. (34)
41. An application to the Court of Appeal for leave to appeal was rejected by Lord Justice Scott Baker on the papers on 22 March 2007, and an order made that the applicant may not request the decision to be reconsidered at a hearing. Scott Baker LJ stated the following:
The reasons are clearly explained in the judgment of Walker J.
RELEVANT DOMESTIC LAW AND PRACTICE
(1) Jobcentre Plus (JCP)
42. Jobcentre Plus was established as an executive agency of the Department of Work and Pensions in April 2002 when the Employment Service ceased to exist.
43. It is the duty of Jobcentre Plus to help people of working age from welfare into work, and employers to fill their vacancies, in connection with the protection of the benefit system from fraud, error and abuse.
(2) The law relating to the entitlement of JSA
44. The Jobseekers Act 1995 (JS Act 1995) and The Jobseeker’s Allowance Regulations 1996 (JSA Regs 1996) lay down the conditions that a person must satisfy in order to be entitled to JSA. A brief summary of the principal legislation applicable is presented as follows:
STATEMENT OF ALLEGED VIOLATIONS OF THE
CONVENTION AND RELEVANT ARGUMENT
45. The applicant submits that there have been violations of his rights under Articles 8 and 13 of the Convention arising out of the matters set out above.
A. Violation of Article 8
46. Article 8 provides:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
47. The applicant submits that the refusal of JCP to accept his wife’s proposed JSAg for referral an adjudication officer in accordance with section 9(6)(a) of the Jobseekers Act 1995, and its subsequent suspensions of benefit of 18 August and 19 September 2006 and the ceasing of entitlement to benefit on 27 September, amounted to a very clear and unjustifiable interference with the right to respect for his private and family life. The refusal of JCP to accept the applicant’s wife’s proposed JSAg was in no way prescribed by law and cannot be said to be necessary in a democratic society in pursuance of any of the legitimate aims set out in Article 8(2).
48. The applicant will expand in turn on the following key submissions:
(1) There has been a clear interference with the applicant’s right to respect for his private and family life.
(2) The interference with his Article 8(1) rights was not “in accordance with the law”.
(3) The interference did not pursue any of the legitimate aims set out in Article 8(2).
(4) The interference was not “necessary in a democratic society”.
(1) There has been a clear interference with the applicant’s right
to respect for his private and family life
49. Following the JCP’s refusal to accept the applicant’s wife’s proposed JSAg for referral to an adjudication officer in accordance with section 9(6)(a) of the Jobseekers Act 1995, the applicant’s and his wife’s entitlement to JSA was twice suspended and then ceased on 27 September, from 19 September, with some of the following consequences:
(1) Since 3 November 2006, the applicant and his wife have been sleeping in the porch of an office building in the heart of London’s business district where they attract unwanted attention and have been the victims of crime, for example when on 4 May 2007 the applicant’s wife was dragged out of the porch by a passer-by while sleeping.
(2) Both the applicant and his wife have been assaulted in the Whitechapel Mission, where they were barred on 18 June 2007 due to concerns about their safety.
(3) The applicant’s physical health has deteriorated significantly. He was hospitalised for pneumonia on 18 December 2006, and contracted an upper respiratory tract infection for which he required hospital treatment on 2 August 2007.
(4) The applicant and his wife have been surviving on the streets of London by selling The Big Issue magazine, which they find highly embarrassing and diminishing.
(5) As a result primarily of problems with other street traders while selling The Big Issue, the threat of being reduced to (illegal) begging is imminent given that the applicant’s savings have already been exhausted.
50. The Court has on a number of occasions ruled that “private life” is a broad term not susceptible to exhaustive definition (see, for example, Peck v the United Kingdom, No. 44647/98, para. 57, ECHR 2003-I). It has nevertheless also observed that Article 8 protects the physical and moral integrity of the individual (see X and Y v the Netherlands, judgment of 26 March 1985, Series A, No. 91, pp. 11-13, paras 22-27), including the right to live privately, away from unwanted attention. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings (see also the submissions relating the applicant’s family life, in paragraph 56 below) and the outside world (see, for example, Niemetz v Germany, Series A, No. 251-B, p. 33, para. 29).
51. The applicant submits that there has been a violation of his right to due respect for his private life and his physical and moral integrity arising from the ceasing of his and his wife’s entitlement to JSA. The conditions that the applicant has endured since becoming homeless have caused a detriment to his physical health and diminished his human dignity. The applicant also submits that a consideration by the Court of the following factors would lead to the conclusion that JCP and the Secretary of State for Work and Pensions must have known that there was a high probability that the applicant and his wife may become homeless following the ceasing of entitlement to benefit on 27 September 2006, from 19 September:
(i) the applicant’s urgent application for judicial review on 24 August 2006 stated that “exceptional urgency is being claimed because my total sum of money amounts to £436.53 as at 24 August 2006”; and
(ii) a claimant whose entitlement to JSA has been ceased does not qualify for a hardship payment (JSA at a reduced rate) or a Social Fund loan that he is unable to repay.
52. In assessing whether the refusal of the JCP to accept the applicant’s wife’s proposed JSAg for referral to an adjudication officer, and its subsequent suspensions of benefit of 18 August and 19 September 2006, amounted to an interference with the applicant’s private life, it has been the approach of the Court that the notion of “private life” should not exclude activities of a professional or business nature “since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world” (Niemietz v Germany, judgment of 16 December 1992, Series A, No. 251-B, para. 29). In the case of Sidabras and Dziautas v Lithuania (Nos 55480/00 and 59330/00, para. 50, ECHR 2004-VII), the Court found that a far-reaching ban on taking up private sector employment “affected, to a significant degree, the applicants' ability to pursue various professional activities and that there were consequential effects on the enjoyment of their right to respect for their ‘private life’ within the meaning of Article 8”. In the present case, it is submitted that there was a similar interference with the applicant’s private life. The applicant’s wife had no recent experience in employed earner’s employment or reference, and her Spanish qualification as a psychologist was not recognised in the UK. Given that many employers are reluctant to engage on a permanent basis a candidate who has been unemployed for some time, the only permanent work she was likely to be offered was an unskilled job, creating serious difficulties for her in terms of earning her living, with obvious repercussions on the enjoyment of the applicant’s and his wife’s private lives.
53. Moreover, under section 19 of the Jobseekers Act 1995 the applicant’s wife’s JSA would have been reduced or stopped altogether for between one and 26 weeks if she failed to apply for a job which was pointed out to her by the JCP Office, or she did not take up a job which had been offered. (A claimant can also be sanctioned because of the circumstances in which they left their last job, for example, if they left voluntarily or they were dismissed for alleged misconduct.)
54. Memorandum by REED Personnel Services to the House of Commons Select Committee on Education and Employment (1998) points out that:
Temporary work can be an excellent way for unemployed jobseekers to move back into the labour market. Temporary work is often a stepping-stone to permanent work, and many employers use a temporary contract as a "trial period" for a permanent job. If working through an agency, a temporary worker can experience a number of different work environments and acquire a range of new skills. Even if a temporary job does not lead immediately to further work, by providing a jobseeker with recent experience and a reference, it can substantially improve their labour market prospects. (Appendix 43, Aug. 13.8.98, para. 5)
55. The applicant would further draw the Court’s attention to the text of Article 1 of the European Social Charter, which states: “Everyone shall have the opportunity to earn his living in an occupation freely entered upon.”
56. The applicant also submits that there has been a violation of the right to respect for his family life under Article 8. It is well established that this right primarily obliges the state to protect the integrity of the family: to ensure that family relationships develop normally (Marckx v Belgium, (1979) Series A, No. 31, paras 31 and 45) and that members of a family have "the mutual enjoyment of each other's company" (Olsson v Sweden, (1988) Series A, No. 130, para. 59). In Lopez Ostra v Spain (1994), Series A, No. 303-C, at para. 51, the Court found that "severe environmental pollution may affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely …". In the present case, it is submitted that there was a similar interference with the applicant’s private and family life. The experience of sleeping rough in London has been as devastating for his wife as it has for the applicant. In the applicant’s submission, the ceasing of the entitlement of benefit clearly has had a significantly detrimental effect on his family, thereby violating the positive duty on the state to respect his family life.
57. The applicant also relies on the positive obligations on the State inherent in Articles 1 and 8 to ensure respect for his private and family life (with particular regard to the extent to which his rights have been violated by the refusal of the JCP to accept his wife’s proposed JSAg for referral to an adjudication officer). In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interests of the community and the interests of the individual (see, for example, Rees v United Kingdom, Series A, No. 106 (1986), para. 37; Gaskin v United Kingdom, Series A, No. 160 (1989), para. 42). Those positive obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals' rights and the implementation, where appropriate, of specific measures (see, among other authorities, X and Y v the Netherlands, judgment of 26 March 1985, Series A, No. 91, p. 11, para. 23). Like the position of the applicant in X and Y v the Netherlands, the applicant has suffered physical and moral damage resulting from the deficiency in the legislation which gave rise to the violation of Article 8.
58. The applicant submits that he had no remedies which provided protection against what was the refusal of JCP to accept his wife’s proposed JSAg for referral to an adjudication officer in accordance with section 9(6)(a) of the Jobseekers Act 1995. The content for a JSAg is laid down in regulation 31 of the Jobseeker’s Allowance Regulations 1996. A prescribed requirement for a JSAg is that it shall contain “any restrictions on the claimant’s availability for employment” (regulation 31(c) of the 1996 Regulations). However, the domestic law merely provides that, if asked to do so by a claimant, an employment officer shall refer any proposed JSAg to an adjudication officer. On this point, an adjudication officer of Newcastle DMA Sector Office informed the applicant by letter dated 13 September 2006 that “there is no provision, in the law relating to jobseeker’s allowance, for form ES2JP to be included in a person’s JSAg”. The applicant submits that in fact there is no provision in the legislation relating to entitlement to JSA for any form whatsoever to be so included. In the absence of such a provision, the codes of conduct to which section 9(6)(a) of the Jobseeker’s Act 1995 refer fail to provide adequate protection against arbitrary interference with individual’s rights under Article 8.
(2) The interference with his Article 8 rights was not “in
accordance with the law”
59. There is no legal regulation of the refusal of an employment officer to refer a proposed JSAg to an adjudication officer whatsoever. Section 9(6)(a) of the Jobseekers Act 1995 provides that, if asked to do so by the claimant, the employment officer must refer any proposed JSAg to an adjudication officer for determination as to whether, if the claimant were to comply with the proposed agreement, the conditions of being available for and actively seeking employment would be satisfied. However, as set out in (1) above, the law relating to JSA provides the claimant with no remedy for an employment officer’s failure to comply with section 9(6)(a) of the 1995 Act. Therefore, section 9(6)(a) of the 1995 Act is subject only to voluntary codes of practice that are wholly unenforceable.
60. In the only case of its kind to date, the applicant sought judicial review proceedings to challenge the legality of his local JCP’s decision to twice suspend and then cease his and his wife’s entitlement to JSA following the refusal of the JCP to accept his wife’s proposed JSAg for referral to an adjudication officer in accordance with section 9(6)(a) of the Jobseekers Act 1995. The Court will note that when the applicant requested, in correspondence, confirmation of the power under which the JCP had acted in refusing to refer his wife’s proposed JSAg to an adjudication officer, the JCP was unable to identify any such power. It is also emphasised that Mr Justice Walker made it quite clear in his judgment that he understood that the applicant wanted the Department for Work and Pensions to accept “a particular contention of his about the Jobseeker’s Agreement” (Transcript, para. 31).
61. The requirement under Article 8(2) of the Convention, that any interference with privacy should be “in accordance with the law” not only requires a specific legal rule or regime authorising the interference, but also relates to the quality of the law (Kruslin v France, Series A, No. 176-B; (1990) 12 EHRR 547 and Huvig v France, Series A, No. 176-B; (1990) 12 EHRR 528). Where a law confers a discretion, it should also indicate with reasonable clarity the scope and manner of exercise of that discretion, and the reasons which might warrant the exercise of the discretion (see, for example, Silver v United Kingdom, Series A, No. 61; (1983) 5 EHRR 347, paras 88-89; Huvig v France, Series A, No. 176-B; (1990) 12 EHRR 528; Malone v United Kingdom, Series A, No. 82; (1985) 7 EHRR 14).
62. The applicant submits that as there is no domestic law regulating the refusal of an employment officer to refer a proposed JSAg to an adjudication officer, the interference with his Article 8(1) rights cannot possibly be said to have been “in accordance with the law”.
(3) The interference did not pursue any of the legitimate
aims set out in Article 8(2)
63. It is well established in Convention case law that “those paragraphs of Articles of the Convention which provide for an exception to a right guaranteed are to be narrowly interpreted” (Klass and Others v Germany, Series A, No. 28 (1978), para. 42; Silver v United Kingdom, Series A, No. 61 (1983), para. 97).
64. The applicant submits that the interference with his Article 8(1) rights did not pursue any of the legitimate aims set out in Article 8(2). The only aim that could possibly be relevant is “to protect taxpayers’ money”. However, the applicant submits that the refusal of JCP to accept his wife’s proposed JSAg for referral an adjudication officer, and its subsequent suspensions of benefit of 18 August and 19 September 2006 and the ceasing of entitlement to benefit on 27 September, cannot be justified as being for such an aim. The applicant’s wife had a right under section 9(6)(a) of the Jobseekers Act 1995 to have any restriction on her availability for work referred to an adjudication officer who must, so far as practicable, make his determination before the end of the period of 14 days from the date of the reference. The ceasing of entitlement of benefit by JCP because the applicant did not attend to sign his declaration, when his signing day was two days later, was clearly a mistake, and a simple investigation of the days the applicant and his wife had previously signed on would have so revealed. The refusal on the part of the JCP to accept the applicant’s wife’s proposed JSAg for referral to an adjudication officer in this case did not, and could not, have served to protect taxpayers’ money. Any connection between such an aim and the applicant’s conduct and circumstances is simply too remote.
(4) The interference was not “necessary in a
democratic society”
65. Even if the applicant’s third proposition above were not accepted, the applicant submits that in any event the interference was manifestly not “necessary in a democratic society”. According to Convention case law, this term does not have the flexibility of such expressions as “useful”, “reasonable”, or “desirable”, but requires the existence of a “pressing social need” and that the interference should be proportionate to the legitimate aim pursued (see, for example, Olsson v Sweden, Series A, No. 130; (1988) 11 EHRR 259, para. 67; Dudgeon v United Kingdom, Series A, No. 45 (1981), para. 51; Handyside v United Kingdom, Series A, No. 24 (1976), para. 48).
66. The Court has provided the following guidance as to the extent of the State’s margin of appreciation in assessing whether a measure is necessary in a democratic society:
… the scope of the margin of appreciation enjoyed by the national authorities will depend not only on the nature of the aim of the restriction but also in the nature of the right involved (see, for example, Gillow v United Kingdom, Series A, N0.109 (1986), para. 55)
67. The applicant submits that there was no “pressing social need” for JCP to refuse to accept his wife’s proposed JSA for referral to an adjudication officer in accordance with section 9(6)(a) of the Jobseekers Act 1995. As a result of the refusal, the applicant’s and his wife’s entitlement to JSA was twice suspended and then ceased, and they are currently sleeping rough on the streets of London. The extent of the intrusion into the applicant’s private and family life was accordingly extremely serious. The applicant submits that it cannot possibly be said that in those circumstances the interference with the applicant’s right to respect for his private and family life was proportionate to any legitimate aim being pursued.
B. Violation of Article 13
Article 13 provides:
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
68. The applicant submits that he had no effective remedy in relation to the violation of his right to respect for his private and family life. The refusal by JCP to accept the applicant’s wife’s proposed JSAg for referral to an adjudication officer in accordance with section 9(6)(a) of the Jobseekers Act 1995 meant that she was denied the adjudication officer’s direction and, in the event of any adverse decision, further rights of appeal. The applicant complained to the manager of the JCP and the Secretary of State for Work and Pensions, but no action was taken.
69. The applicant complained in judicial review proceedings that JCP had acted irrationally by suspending his joint claim JSA following its refusal to accept his wife’s proposed JSAg for referral to an adjudication officer. The application for leave to apply for judicial was dismissed by Mr Justice Walker on 11 December 2006. The judge found that the internal procedure in relation to the suspension of 18 August had assisted the applicant and his wife because the suspension was reversed. Accordingly, in judicial review proceedings, unless an applicant can demonstrate that there has been illegality, procedural impropriety or irrationality (for which there is a very high threshold test), there is nothing to prevent an employment officer refusing to refer a claimant’s proposed JSAg to an adjudication officer.
70. The applicant also submits that he did everything that could reasonably be expected of him to exhaust domestic remedies in respect of the JCP’s ceasing of his and his wife’s entitlement to JSA on 27 September 2006. The Court has found that according to the “generally recognised rules of international law” there may be special circumstances that absolve an applicant from the obligation to exhaust the domestic remedies at his disposal (see Van Oosterwijck v Belgium, judgment of 6 November 1980, Series A, No. 40, pp. 18-19, paras. 36-40). The rule is also applicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (see Ireland v the United Kingdom, judgment of 18 January 1978, Series A, No. 25, p. 64, para. 159, and the report of the Commission in the same case, Series B, No. 23-I, pp. 394-97).
71. The applicant submits that a consideration by the Court of the following factors would lead to the conclusion of the existence of special circumstances which dispensed the applicant from the obligation to appeal to a social security appeal tribunal in respect of the ceasing of the applicant’s and his wife’s entitlement to JSA on 27 September 2006:
(1) On 30 September 2006 the applicant wrote to the manager of JCP advising of the Jobcentre's mistake in ceasing his and his wife's entitlement to benefit on 27 September because he did not sign his declaration, when both he and his wife were not due to sign on until 29 September, and sent a copy of this letter by registered post to the Secretary of State for Work and Pensions. Subject to regulation 27(1) of the Jobseeker’s Allowance Regulations 1996, entitlement to JSA shall not cease if the claimant shows, before the end of the fifth working day after the day on which he failed to provide a signed declaration, that he had a good cause for the failure. Nonetheless, no action was taken to rectify the mistake made by the JCP.
(2) The JCP further failed to provide the applicant with an explanation as to why it would not change its decision of 27 September, an explanation that the applicant was entitled to within one month of the date of the decision letter for an automatic right to appeal to a social security appeal tribunal. By registered letter dated 4 October 2006 the applicant complained to the Secretary of State, but no action was taken. (All the applicant received was a letter from the JCP of 5 October acknowledging receipt of, inter alia, letters from the applicant dated 29 and 30 September.)
(3) Following Mr Justice Collins’s refusal (on the papers) of leave to apply for judicial review, the application was renewed on 17 October 2006, and a copy sent by registered post to the Secretary of State for Work and Pensions. By registered letter dated 20 October 2006 the applicant again complained to the Secretary of State, but no action was taken.
(4) By letter dated 31 October 2006 the Administrative Court Office advised the applicant that his permission application had been listed for oral hearing on 11 December 2006 in the Royal Courts of Justice in London. Having been denied an explanation as to why the JCP would not change its decision of 27 September, and thereby deprived of his automatic right to appeal to a social security appeal tribunal, the applicant submits that he and his wife were left with no choice but to go homeless in London, where the pursuance of his claim through the national courts was accessible, capable of providing redress in respect of the complaint and offered reasonable prospects of success.
(5) The applicant wishes to emphasise that having had their entitlement to JSA ceased on 27 September, neither he nor his wife was entitled to a hardship payment (JSA at a reduced rate) or a Social Fund loan (unable to repay).
72. In respect of the JCP’s letter of 27 September, Mr Justice Walker said the following in his judgment:
The defendant went on to formulate a letter sent on 27th September. That letter gave a reason for terminating payment. Mr Heavey says the reason was plainly wrong. It seems almost certain that Mr Heavey is correct. Indeed, there is a letter from the Department which says that in the letter of 27th September the reference to him having failed to sign on was a mistake. The Department says that there is another good reason for terminating payment. (Transcript, para. 31)
73. The applicant submits that the Department of Work and Pensions never informed him that terminating payment because he failed to sign on was a mistake but that there was another good reason for so doing. In fact, it would appear from Mr Justice Walker’s statement in paragraph 72 above that the JCP did not even inform the High Court as to what other reason existed for terminating payment. (By letters dated 18 April and 3 May 2007 the applicant requested of the Administrative Court Office a copy of the letter in which the Department says that the reference to him having failed to sign on was a mistake, but by letter dated 15 May 2007 (see Supporting Documents, p. 25) the Office advised that the court file does not contain the letter asked for.) This point, it is submitted, goes to the very heart of this case: the consistent pattern of actions taken over a relatively long period of time by the JCP and which were aimed at preventing the applicant’s wife’s proposed JSAg from being referred to an adjudication officer in accordance with section 9(6)(a) of the Jobseekers Act 1995. The applicant also submits that there was no remedy that would have been effective in changing the general situation, of which the applicant complained, and it is therefore irrelevant that in this case the applicant did not appeal to a social security appeal tribunal.
STATEMENT RELEVANT TO ARTICLE 35
74. This application was lodged with the Court by a letter dated 18 May 2006.
75. The applicant has exhausted his domestic remedies by applying for judicial review of his local JCP’s decision to twice suspend and then cease his and his wife’s entitlement to JSA after refusing to accept his wife’s proposed JSAg for referral to an adjudication officer in accordance with section 9(6)(a) of the Jobseekers Act 1995. The application was dismissed on 11 December 2006 by Mr Justice Walker, who also refused leave to appeal to the Court of Appeal.
76. The applicant applied to the Court of Appeal for leave to appeal against the decision of Mr Justice Walker. That application was refused by Lord Justice Scott Baker on the papers on 22 March 2007, who also made an order that the applicant may not request the decision to be reconsidered at a hearing. There was no further domestic remedy. A further letter changing the address of the applicant was sent to the Court on 21 June 2007.
77. This application has therefore been lodged within the period required by Article 35.
STATEMENT OF THE OBJECT OF THE APPLICATION
78. The applicant seeks the following:
(i) a declaration that his rights under Articles 8 and 13 have been violated;
(ii) just satisfaction to compensate the applicant for violation of his rights as set out in (i) above; and
(iii) the costs of this application (including the costs of domestic proceedings).
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