SM, as guardian of the child JM (Petitioner) v Advocate General for Scotland acting on behalf of the Secretary of State for Work and Pensions, [2010] CSOH 15

This case sought Judicial Review of Section 73 of the Social Security Contributions and Benefits Act 1992 which the Petitioner claimed contravened Protocol 1 to and Section 8 of the European Convention on Human Rights. JM was under the age of three years, disabled and unable to walk at the time of the application for mobility allowance. Under Section 73, eligibility for mobility allowance was dependent upon the child being over the age of three. The Petitioner argued this was discriminatory against the child in terms of section 14 of the Convention. The Respondent relied on medical evidence to suggest that 80% of children who could not walk at age 2 could, according to experts, walk independently by the age of 4 and argued that this was the basis for the age restriction in the legislation.

Lord Brodie provided that all subordinate legislation must be read in conjunction with the Articles of the Convention. He held that the provisions of Section 73 were not discriminatory in terms of Section 14 and that when interpreting legislation of this nature the courts must allow the State a margin of appreciation in making such rules.
[2010] CSOH 15