Easter Term [2019] UKSC 21 On appeals from: [2018] EWCA Civ 504 and [2016] EWHC 698 (Admin)

THE COURT ORDERED that no one shall publish or reveal the names or
addresses of the Appellants who are the subject of these proceedings or publish or
reveal any information which would be likely to lead to the identification of them
or of any member of their families in connection with these proceedings.

JUDGMENT
R (on the application of DA and others) (Appellants) v
Secretary of State for Work and Pensions (Respondent)
R (on the application of DS and others) (Appellants) v
Secretary of State for Work and Pensions (Respondent)
before
Lady Hale, President
Lord Reed, Deputy President
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Hughes
Lord Hodge
JUDGMENT GIVEN ON
15 May 2019
Heard on 17, 18 and 19 July 2018
Appellants
(DA and others)
Respondent
(Secretary of State for Work and Pensions)
Ian Wise QC Clive Sheldon QC
Caoilfhionn Gallagher QC James Cornwell
Stephen Broach Simon Pritchard
Michael Armitage Shane Sibbel
(Instructed by Hopkin
Murray Beskine
Solicitors)
(Instructed by The
Government Legal
Department)
Appellants
(DS and others)
Richard Drabble QC
Tim Buley
Zoë Leventhal
(Instructed by Child
Poverty Action Group)
Intervener
(Shelter Children’s Legal Services)
Martin Westgate QC
Shu Shin Luh
Connor Johnston
(Instructed by Freshfields Bruckhaus Deringer LLP)
Intervener
(Equality and Human Rights Commission)
Helen Mountfield QC
Raj Desai
(Instructed by Equality & Human Rights Commission)
Intervener
(Just Fair – written submissions only)
Jamie Burton
Daniel Clarke
(Instructed by Hansen Palomares)
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LORD WILSON: (with whom Lord Hodge agrees)
Introduction
1. The various appellants in each of two appeals, which have been heard
together, challenge the lawfulness of provisions relating to what is known as the
revised benefit cap.
2. The original benefit cap was introduced by section 96(1) of the Welfare
Reform Act 2012 (“the 2012 Act”). Pursuant to it, the Housing Benefit Regulations
2006, SI 2006/213, (“the 2006 Regulations”) were amended so as to provide, in
regulation 75A, that, if a household’s total entitlement to specified welfare benefits
were otherwise to exceed an annual limit, its entitlement should be capped at that
limit. The original cap came into force on 15 April 2013.
3. In R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16,
[2015] 1 WLR 1449, this court, by a majority of three to two, dismissed an appeal
by three lone mothers and three of their children against a decision that provisions
relating to the original cap did not discriminate against women in the enjoyment of
their possession of welfare benefits and so were not unlawful. I will refer to the SG
case as the first benefit cap case.
4. In its manifesto for the general election which took place on 7 May 2015 the
Conservative Party proposed that any Conservative government would introduce
legislation for a revised benefit cap which would cap specified benefits at a lower
level. Following the party’s victory in that election the government introduced, and
Parliament enacted, the Welfare Reform and Work Act 2016 (“the 2016 Act”). By
making amendments to the 2012 Act, the 2016 Act introduced the revised cap, which
came into force on 7 November 2016. In making provision for the original cap, the
earlier version of the 2012 Act had, in section 96(5) to (7), provided for the annual
limit, at which the welfare benefits were to be capped, to be specified in regulations
and to be determined by reference to the estimated average net earnings of a working
household in Britain; and the amended 2006 Regulations had specified that, for
couples and lone parents, the annual limit was £26,000, being a figure apparently
determined in that way.
5. But the amendments wrought by the 2016 Act have replaced those
provisions; and, for the purposes of the revised cap, they identify the annual limits
in the 2012 Act itself, namely in a new section 96(5A). The effect of the subsection,
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when read with a new regulation 75CA inserted into the 2006 Regulations by
regulation 2(3) of the Benefit Cap (Housing Benefit and Universal Credit)
(Amendment) Regulations 2016 (SI 2016/909) (“the 2016 Regulations”) is that, for
couples and lone parents, the annual limits are reduced to £23,000 if they reside in
Greater London and to £20,000 if they reside elsewhere. How were these reduced
figures calculated? Clearly the yardstick of average net earnings of a working
household was abandoned – otherwise the figures would not have come down. The
government’s Impact Assessment dated August 2016 relating to the 2016 Act (“the
IA”) suggested that the reduced figures were calculated by reference to the fact that
40% of households earn less than them. But, say the appellants, the only arguably
relevant figures would relate to the total income of those households, inclusive in
particular of benefits. The amendments made in 2016 provide no automatic
adjustment of the limits for inflation; and the reduced figures have already lost 5%
of their real value. But a new section 96A of the 2012 Act requires the Secretary of
State to review them at least once during each Parliament. The welfare benefits
subject to the cap, which prior to the amendments to the 2012 Act were left to be
specified in regulations, are also now specified in the Act itself, namely in section
96(10). Among others, the benefits there specified include child benefit, child tax
credit, housing benefit and income support.
6. Various features of the scheme which applied to the original cap have been
retained for application to the revised cap. By regulation 75D of the 2006
Regulations, it is for the local authority to implement the cap by reducing payment
of housing benefit accordingly. By regulation 75F, those in receipt of certain
benefits (now including, pursuant to amendment by the 2016 Regulations, a carer’s
allowance and a guardian’s allowance) are exempt from the cap even if they also
receive benefits which are specified in section 96(10) as being subject to it. And,
most importantly, by regulation 75E(2), those entitled to working tax credit are
exempt from the cap. Under regulation 4(1) of the Working Tax Credit (Entitlement
and Maximum Rate) Regulations 2002 (SI 2002/2005) a single person (which here
includes a lone parent) is entitled to working tax credit if, among other things, she
or he undertakes work for at least 16 hours each week. A couple, on the other hand,
is entitled to it if, among other things, they undertake work for at least 24 hours each
week, provided that one of them does so for at least 16 of those hours.
7. In the IA the government stated that its introduction of the revised cap had
three aims:
(a) to improve the fairness of the social security system and to increase
public confidence in its fairness, particularly in relation to the government’s
objective not to reward a non-working family with an income in the form of
welfare benefits which exceeded that of an average working family;
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(b) to make fiscal savings which would enable the government to redirect
its limited resources for better deployment elsewhere; and
(c) to incentivise the parents or parent in a non-working family to obtain
work on the basis in particular that an ethic of work within a family inculcated
better outcomes for its children.
8. The IA identified the incentivisation of work as the main aim. The ability of
parents to escape the cap by undertaking work for not less than the specified number
of hours is described by the government as a key exemption and is therefore central
to the design of the scheme.
9. The basic argument on behalf of the appellants is that, in introducing the
revised cap, the government, through Parliament, has unlawfully discriminated both
against the lone parents of young children, whose ability to work is severely
curtailed by their childcare obligations, and against the young children of lone
parents.
10. In the DA case there are five appellants. Three of them are lone parent
mothers. They all care for children of various ages. At the outset of the proceedings
the children of two of the mothers included a child aged under two. Those two
children then aged under two are the other appellants. Those two mothers had each
suffered a reduction in benefits as a result of the revised cap. At the outset of the
proceedings the third mother was pregnant.
11. In the DS case there are eleven appellants. Two of them are lone parent
mothers. They both care for children of various ages. The first mother cares for five
children, each of whom is an appellant. The second cares for four children, each of
whom is also an appellant. At the outset of the proceedings none of these nine
children was aged under two but three of them were aged under five. Both of the
mothers had suffered a reduction in benefits as a result of the revised cap.
12. Both sets of appellants primarily cast their claim of unlawful discrimination
under the Human Rights Act 1998 (“the 1998 Act”). Their secondary challenge to
the scheme for the revised cap is that, in its application to them, it is irrational at
common law; but, if the primary claim fails, the application of the scheme to them
will not be irrational so the secondary challenge will not further be addressed.
13. In the DA case the appellant mothers contend
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(a) that their entitlement to welfare benefits falls within the ambit of their
rights both under article 1 of protocol 1 (“article 1 p 1”) of the European
Convention on Human Rights (“the Convention”) and under article 8 of the
Convention;
(b) that, in that they have the status of lone parents of children aged under
two, they have the right under article 14 of the Convention to claim that their
rights under article 1 p 1 and article 8 have not been secured without
discrimination;
(c) that under the scheme they are subject to the same treatment as other
adults who are in a relevantly different situation from them and that, unless
the same treatment of them is justified, the law requires them to have different
treatment; and
(d) that the government has failed to justify their subjection to the same
treatment as those other adults and that therefore it has unlawfully
discriminated against them.
14. In the DA case the appellant children contend
(a) that their mothers have an entitlement to welfare benefits which falls
within the ambit of the children’s own rights under article 8;
(b) that, in that they have the status of children aged under two of lone
parents, they have the right under article 14 to claim that their rights under
article 8 have not been secured without discrimination;
(c) that under the scheme they are subject to the same treatment as other
children who are in a relevantly different situation from them and that, unless
the same treatment of them is justified, the law requires them to have different
treatment; and
(d) that, in particular in the light of an alleged breach on its part of article
3 of the UN Convention on the Rights of the Child 1989 (Cm 1976) (“the
UNCRC”), the government has failed to justify their subjection to the same
treatment as those other children and that therefore it has unlawfully
discriminated against them.
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15. In the DS case the appellant mothers contend
(a) that their entitlement to welfare benefits falls within the ambit of their
rights both under article 1 p 1 and under article 8;
(b) that, in that they have the status either of lone parents or, as a fall-back,
of lone parents of children aged under five, they have the right under article
14 to claim that their rights under article 1 p 1 and article 8 have not been
secured without discrimination;
(c) that under the scheme they are subject to such different treatment in
comparison with other adults, particularly with dual-care parents or with lone
parents all of whose children are aged at least five, that, unless the different
treatment of them is justified, the law requires them to have the same
treatment; and
(d) that the government has failed to justify their subjection to such
different treatment and that therefore it has unlawfully discriminated against
them, whether directly or indirectly.
16. In the DS case the appellant children contend
(a) that they have an interest in the welfare benefits to which their mothers
are entitled and that it falls within the ambit of their own rights under article
8 or, if not, under article 1 p 1;
(b) that, in that they have the status of children of lone parents or, in the
case of three of them and as a fall-back, that they have the status of children
aged under five of lone parents, they have the right under article 14 to claim
that their rights under article 8 or, if not, under article 1 p 1 have not been
secured without discrimination;
(c) that under the scheme they are subject to such different treatment in
comparison with other children, particularly children of dual-care parents or
children aged at least five of lone parents, that, unless the different treatment
of them is justified, the law requires them to have the same treatment; and
(d) that, in particular in the light of an alleged breach on its part of article
3 of the UNCRC, the government has failed to justify their subjection to such
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different treatment and that therefore it has unlawfully discriminated against
them, whether directly or indirectly.
17. In response to the above contentions the government concedes only that the
entitlement of the two sets of appellant mothers to welfare benefits falls within the
ambit of their rights under article 1 p 1. It disputes every other contention.
18. Unlike the DS case, the DA case has been the subject of adjudication on the
merits in the lower courts. By an order dated 22 June 2017, [2017] EWHC 1446
(Admin), [2017] PTSR 1266, Collins J upheld the claims of the DA claimants by
declaring that the 2006 Regulations, as amended by the 2016 Regulations,
unlawfully discriminated against lone parents of children aged under two and against
children aged under two of lone parents. But, by an order dated 15 March 2018,
[2018] EWCA Civ 504, [2018] PTSR 1606, the Court of Appeal (Sir Patrick Elias
who gave the main judgment and Sir Brian Leveson, President of the Queen’s Bench
Division, who gave a short concurring judgment; McCombe LJ dissenting) set aside
the order of Collins J. In effect the court dismissed the claims and granted permission
to appeal to the Supreme Court.
19. On 26 March 2018, thus 11 days after the order of the Court of Appeal in the
DA case, Lang J heard the DS case. Mr Drabble QC, on behalf of the DS claimants,
submitted to her that the dismissal of their claims was not strictly mandated by the
Court of Appeal’s decision in the DA case but he conceded that it placed significant
hurdles in their way. In light of the fact that the decision in the DA case was to be
reviewed in the Supreme Court, he persuaded the judge to dismiss their claims
without inquiry into their merits and to grant a leap-frog certificate under section 12
of the Administration of Justice Act 1969 to the effect that an application on their
part to the Supreme Court for leave to appeal directly to it would be justified. In due
course such an application was made to this court and granted. The consequence is
that there has been no lower court review of the evidence filed in the DS case.
20. Although the law of discrimination is inherently difficult, it is impossible to
avoid the conclusion that, for various reasons, the court’s examination of the issues
raised in these appeals has been unnecessarily cumbersome and complicated.
(a) The judgments of each of the five members of the court in the first
benefit cap case, all of alleged relevance, proceed in all for 269 paragraphs
and their combined effect has been a matter of acute and protracted debate in
this court and elsewhere.
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(b) The three judgments of the Court of Appeal in the DA case, now before
this court, proceed for 184 paragraphs.
(c) The written cases presented to this court in the two appeals by the three
principal parties and the three interveners, all of high legal quality, proceed
across 357 pages.
(d) The evidence filed in both appeals proceeds across more than 3,000
pages.
(e) 119 authorities are presented to the court for consideration.
(f) The oral argument has continued for two and a half days.
21. In the above circumstances the compilation of this judgment has had to be
surgical. Reference to all the arguably relevant evidence and submissions would
have submerged it. As it is, I am disappointed with myself in having failed to contain
it within fewer than 91 paragraphs.
Evidence
22. The impact of the revised cap has been broadly as follows:
(a) As at August 2017, the benefits of 68,000 households had been
reduced by reference to the revised cap.
(b) 52,000 (ie 77%) of those households would not have suffered
reduction by reference to the original cap; so the revision of the cap has had
a substantial effect.
(c) Of the 68,000 households which suffered the revised cap, 49,000 (ie
72%) were lone parent households.
(d) Since 90% of lone parents are women, 44,000 (ie 65%) of the
households which suffered the revised cap were lone female parent
households.
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(e) Of the 68,000 households which suffered the revised cap, 37,000 (ie
54%) were lone parent households with a child aged under five and, of those,
17,000 (ie 25% of the total) were lone parent households with a child aged
under two. The cap has therefore had a major impact on the former group, of
which the latter are a significant subgroup.
(f) Families with multiple children, thus in receipt of higher amounts of
child benefit and child tax credits, are more likely to be capped. As at
February 2018, 74% of capped households (not here differentiated between
dual-care and lone parent households) had at least three children.
23. Has the revised cap incentivised those on benefits to work? The government
accepts that the statistical evidence is sparse; and it is inappropriate to address it in
detail. It suffices to say:
(a) In putting forward its expectations for the revised cap in the IA, the
government suggested that 41% of those potentially subject to it would be
more likely to work in order to escape it than those not potentially subject to
it.
(b) But the statistic turns out to mean that the number of those more likely
to work in order to escape the cap is 41% larger than the already small group,
namely only 11% of all capped households, who would have moved into
work in any event. Translated into numbers, it means that only about one
capped household out of 20 such households (ie 5%) was considered likely
to move into work in order to escape it. In relation, however, to that one
capped household out of 20, the appeals require the court to consider whether
it was more likely to be a dual-care household than a lone parent household,
in particular a lone parent household with a child aged under five or indeed
aged under two.
24. So, in relation to incentivisation, the government relies less on statistics and
more on what are said to be the obvious financial advantages of working. These
advantages are scarcely in dispute. Evidence on behalf of the appellants in the DS
case suggests, by way of example in relation to one of the mothers, that, when
capped, her annual household benefits were £20,000 but that, were she to have
worked for 16 hours each week earning £17,000 net, her net annual income would
have risen to £32,000 because her benefits would have been reduced by only £5,000.
25. Irrespective, however, of the financial advantages for a parent who works
hours sufficient to claim working tax credit and thus to escape the cap, how
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practicable is it for a lone parent, in particular a lone parent of a child aged under
five or indeed aged under two, to do so?
26. (a) Is it reasonable to divert the lone parent from caring for such
children?
(b) Is it reasonable to take her out of the home if she is a nursing mother?
(c) In any event can she find local part-time work with set hours at a
reasonable time during the day?
(d) Can she find a carer in a practicable location who can offer care at the
necessary times and, if she has to pay the carer, can she afford to do so?
(e) As state regulations about minimum staff ratios appear to recognise,
do children aged under two need more intensive and therefore more
expensive care than older children?
(f) If the lone parent also has a number of other, older children, is it even
less practicable for her to work?
27. Central to the government’s response to these questions is its provision, on
certain conditions, of free childcare for 30 hours per week during term-time under
the Childcare (Early Years Provision Free of Charge) (Extended Entitlement)
Regulations 2016 (S1 2016/1257). The IA stressed its availability and estimated it
to be worth about £5,000 pa per child. The trouble is that the provision extends to
free care only for three and four year olds and also, albeit limited to 15 hours per
week, for certain two year olds in families in receipt of specified benefits. This, no
doubt, explains why in the DA case the appellants are members of families which
include a child aged under two. Mr Wise QC on their behalf therefore points to the
grave difficulty which confronts lone parents in that group in accessing care so that
they can work. To this the government responds that the financial advantages of
escaping the cap by work are so substantial, as explained above, that these lone
parents, if in work, can afford to pay for childcare out of their overall income
inclusive of benefits and that they are substantially assisted in doing so in the
computation of their working tax credit.
28. But Mr Wise draws a wider point from the limited extent of the provision for
free childcare: it betokens (he says) a considered governmental conclusion that it is
not in the interests of lone parents of children aged under two, nor in particular in
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the interests of those children, that their parents should be diverted from caring for
them.
29. Here Mr Wise and Mr Drabble join in making an allied point. It relates to the
conditions attached to the receipt of income support, which is likely to be a major
constituent of the welfare benefits paid to a lone parent. The aim of the conditions
is to make it easier for her to find work when (but only when) her youngest child
has attained the age of five. One condition relates to the period when she has a child
aged one or two and it requires her to attend work-focussed interviews about every
six months. Another relates to the period when she has a child aged three or four and
it requires her to engage in some training or other work-related activity in
preparation for future work. The sanction for failing to comply with a condition is a
reduction in income support. Once all her children have attained the age of five, in
other words are of school age, the lone parent not in work must claim jobseeker’s
allowance instead of income support and, to that end, must demonstrate that she is
available to do a limited amount of work and that she is actively seeking it. The point
made on behalf of all the appellants is that at the heart of the carefully calibrated
regime of attaching conditions to the receipt by lone parents of income support is a
recognition by the government that it is wrong to expect them actually to work until
all their children have attained school age; and that to cap their benefits for failure
to work before all their children have attained school age flies in the face of that
policy decision.
30. The government’s defence of its application of the revised cap to lone parents
in the circumstances identified in these appeals relates in significant part to the
provision for the possible making to them of a Discretionary Housing Payment (“a
DHP”). Provision for DHPs is made in section 69 of the Child Support, Pensions
and Social Security Act 2000 and in regulations made under it. A power to make a
DHP is conferred on local authorities and, as the title implies, it must relate to
housing costs. So, when a cap requires a local authority to reduce housing benefit
below, or further below, the level of the recipient’s rent, there is the facility for it to
make a DHP to cover the balance. Central government provides local authorities
both with an annual fund out of which to make DHPs and with a guidance manual
in relation to their distribution of them. A broad discretion is conferred upon the
local authorities. There is no appeal against a refusal to make a DHP but there is,
with whatever degree of difficulty, an opportunity to challenge it by way of judicial
review. DHPs are intended to cover many more situations of hardship than those
created by the cap, including in particular hardship created by the provisions
addressed by this court in R (MA) v Secretary of State for Work and Pensions [2016]
UKSC 58, [2016] 1 WLR 4550 (“the bedroom tax case”); and it is clear that they
are mainly intended to alleviate temporary hardship and, for those subject to the cap,
are intended, in the words of the IA, to manage “the transition for various customers
whilst they make the necessary changes to adapt to the application of the benefit
cap”. The manual however now includes within a list of possible recipients a
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household which “contains … a child … under two years of age where childcare is
a barrier to getting work”.
31. In the light in particular of the provision within the scheme for the exercise
of discretion on the part of local authorities in the making of DHPs, how far should
this court rely on them for alleviation of the worst effects of the cap on lone parents
within the appellant groups? The government refers powerfully to the fact that five
out of the six appellant mothers in these appeals have at one stage been in receipt of
DHPs. The problem is that, as the government accepts, there is limited data about
the extent to which capped households are rescued by DHPs. Both the appellants in
the DA case and Shelter, as an Intervener in the appeals, present evidence of
divergence in
(a) the degree of complexity, sometimes bewildering, with which local
authorities surround the making of an application for a DHP;
(b) the time which they take to process it;
(c) the period for which, subject only to some further award, they agree to
make a DHP in order to alleviate a cap, awards of indefinite duration being
unknown and most being subject to a maximum of 12 weeks; and
(d) the extent to which any award of a DHP is large enough to cover the
shortfall in housing benefit imposed by the cap.
Similar concerns led Henderson J in Burnip v Birmingham City Council [2012]
EWCA Civ 629, [2013] PTSR 117, at paras 46 and 47, to reject the attempt by local
authorities to rely on DHPs as justifying less favourable treatment of the disabled in
the computation of housing benefit.
32. Of the other two aims of government in introducing the revised cap, that of
making fiscal savings has scarcely been pressed. The IA forecast that in the year just
past (2018-19) the revised cap would save the state £110m. But the figure did not
include the operational cost of implementing the cap nor the cost of the support, in
particular through DHPs, otherwise provided to capped claimants, all now estimated
at £68m this year. In context the net figure appears to be 0.03% of the state’s overall
annual expenditure on welfare benefits for those of working age.
33. Does the revised cap inflict poverty on those subject to it? The answer is hotly
contested. But since the government cannot sensibly argue that the computation of
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welfare benefits is intended to provide a family with more than it needs, it follows
that a reduction of those benefits will provide it with less than it needs. Of course
the concept of needs is to some extent elastic: they can be assessed with somewhat
greater or lesser stringency. But the government does not seek to argue that the lower
figures set for the revised cap have been reached by reference to any scale of needs.
Equally, in a speech in 2016 relied on by the government, Mr Cameron, then the
Prime Minister, acknowledged that the effect of welfare benefits was “to push
people’s incomes just above the poverty line”. It follows that a substantial reduction
in them pulls their incomes well down below the poverty line. In my view there are
sound reasons for accepting the evidence given by the Child Poverty Action Group
in the DS case that the effect of the cap is to reduce a family well below the poverty
line, judged by the generally accepted measure of less than 60% of median UK
income equivalent to the size of the household.
34. There ensues striking evidence adduced on behalf of the DA appellants about
the effect on children of an early life of poverty. Professor Atkinson, the former
Children’s Commissioner for England, echoing evidence from Jonathan Bradshaw,
Professor of Social Policy at York University, offers this summary:
“Living in poverty has a serious impact on children’s lives,
negatively affecting their educational attainment, health, and
happiness as well as having long-term adverse consequences
into adulthood … Even a few years of poverty can have
negative consequences for a child’s development and is
especially harmful from the ages of birth to five.”
Issue 1: The ambit of article 8
35. In M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2
AC 91, Lord Nicholls observed in para 14 that
“the more seriously and directly the discriminatory provision
or conduct impinges upon the values underlying the particular
substantive article, the more readily will it be regarded as
within the ambit of that article …”
It cannot seriously be disputed that the values underlying the right of all the
appellants to respect for their family life include those of a home life underpinned
by a degree of stability, practical as well as emotional, and thus by financial
resources adequate to meet basic needs, in particular for accommodation, warmth,
food and clothing.
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36. In Petrovic v Austria (2001) 33 EHRR 14 the European Court of Human
Rights (“the ECtHR”) held that a refusal to pay a father, as opposed to a mother, a
parental leave allowance fell within the ambit of his rights under article 8 because,
as explained in para 27, the allowance enabled a parent to stay at home to look after
the children and so affected the way in which family life was organised. In Okpisz v
Germany (2006) 42 EHRR 32 it held that a decision no longer to pay child benefits
to certain aliens fell within the same ambit. In the bedroom tax case, cited at para 30
above, this court held at para 49 and unanimously, that the so-called bedroom tax,
by which housing benefit was capped by reference to rules about the number of
bedrooms which a family needed, fell within the same ambit. Earlier, in the first
benefit cap case, the court had no need to consider whether the original cap fell
within the ambit of article 8. Nevertheless the government relies on doubts about it
which Lord Reed expressed in para 79. The difficulty is that, as the Intervener, Just
Fair, suggests, Lord Reed there seems to have equated the ambit of article 8 with
interference with rights under it, which, with respect, may not be the usual analysis.
37. In the DA case Collins J and the Court of Appeal both held that the revised
cap fell within the ambit of the rights under article 8 of the claimant mothers and
children. I have no doubt that they were correct – and of course the same applies to
the claimants in the DS case. The effect of the provisions for the cap may be that the
mother goes to work and escapes it; if so, her children below school age have to be
cared for in some other way. Or the effect may be that the cap is imposed, with a
variety of possible results: that, as expressly suggested by the government to be an
option, the family, no doubt with great difficulty, has to move to cheaper
accommodation; or that the mother builds up rent arrears and so risks eviction or
otherwise falls into debt; or that, like one of the DA mothers, she has to cease buying
meat for the children; or, as in cases recorded by Shelter, that she has to go without
food herself in order to feed the children or has to turn off the heating. Whatever
their individual effect, provisions for a reduction of benefits to well below the
poverty line will strike at family life.
Issue 2: Status
38. The government argues, if faintly, that in the DA case the Court of Appeal
was wrong to conclude that the claimants, in other words both the lone parents and
the children, had a “status” on the ground of which they might seek to complain
under article 14 of discrimination in the enjoyment of their substantive Convention
rights. The government submits, for example, that the parents are women, who
admittedly enjoy a status under article 14, and that it is therefore inappropriate for
them to seek to shoehorn themselves into some other status. The submission is
difficult to understand: it is of the essence of the parents’ case in the DA appeal and
of what I regard as a significant part of their case in the DS appeal that they are lone
parents of children aged under two or under five, and that the discrimination lies in
the difference between their situation and that of others subject to the cap. The
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government proceeds to submit that the situation of the appellants can be transitory
in that a parent may not be a lone parent for ever and that a child will not remain
aged under two (or under five) for long. But there is no ground for concluding that
a status for the purpose of article 14 has to be permanent. Some of the examples of
status given in article 14 itself can change – religion, political opinion, even sex.
39. In Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47,
[2015] 1 WLR 3250, this court referred in para 21 to previous authority that the
concept of status generally comprised personal characteristics and that inquiry into
it should concentrate “on what somebody is, rather than what he is doing or what is
being done to him”; it observed in para 22 that, if the complaint of discrimination
fell within the ambit of a Convention right, the ECtHR was reluctant to conclude
that the complainant had no relevant status; and it held in para 23 that, as a “severely
disabled child in need of lengthy in-patient hospital treatment”, the appellant’s
deceased son had had a status within the meaning of article 14. In R (Stott) v
Secretary of State for Justice [2018] UKSC 59, [2018] 3 WLR 1831, this court
recently conducted a detailed examination of the meaning of “other status” in article
14. In the event all members of the court other than Lord Carnwath confirmed that
its meaning was broad; and they proceeded to hold that a prisoner subject to a
particular type of sentence thereby had the status which under article 14 enabled him
to allege that its effect had been to discriminate against him in the enjoyment of his
rights under article 5 of the Convention. The present appellants assert statuses more
obviously composed of personal characteristics than were those recognised in the
cases of Mathieson and Stott; and I have no doubt that all of them have the requisite
status in the terms set out in paras 13(b), 14(b), 15(b) and 16(b) above.
Issue 3: Formulation of the complaints
40. In R (A) v Secretary of State for Health [2017] UKSC 41, [2017] 1 WLR
2492, I noted in para 29 that the claimants complained that they should have been
treated in the same way as a specified group but in para 30 that they had turned their
argument inside out in complaining alternatively that they should have been treated
in a different way from another specified group. I added in para 31 that in that case
the alternative presentation added only an extra level of unwelcome complexity.
Nevertheless the concept of discrimination is, as Sir Patrick said in para 17 of his
judgment in the DA case, underpinned by the fundamental principle not only that
like cases should be treated alike but also that different cases should be treated
differently. And in some cases, unlike the A case but exemplified by that in the
ECtHR of Thlimmenos v Greece (2000) 31 EHRR 12, the natural formulation of the
complaint is indeed that the complainants have been treated similarly to those whose
situation is relevantly different, with the result that they should have been treated
differently.
Page 16
41. I have sought to describe in paras 13(c), 14(c), 15(c) and 16(c) above the way
in which the various appellants before the court formulate their complaints of
discrimination.
42. The DA appellants primarily complain that, in applying the revised cap (a) to
lone parents of children aged under two and (b) to children aged under two of lone
parents (together, “the DA cohorts”), the government has treated them similarly to
others to whom it has applied the cap but whose situation is relevantly different from
theirs. So the DA appellants say that, unless the similar treatment can be justified,
the government should have treated them differently by exempting them from the
cap.
43. But, like the appellants in the A case, the DA appellants can also turn their
complaint inside out. They can point to the exemption from the cap granted to those
in receipt of a carer’s allowance (paid to those who for at least 35 hours a week care
for an adult on specified benefits) and of a guardian’s allowance (paid to those who
bring up a child of deceased parents). So in the alternative the DA appellants can
complain that, in applying the cap to themselves, the government has treated them
differently from carers and guardians to whom it has not applied the cap but whose
situation is relevantly similar to theirs. So, the DA appellants can say that, unless the
different treatment can be justified, the government should have treated them
similarly by exempting them from it.
44. Although the alternative formulation of the complaint of the DA appellants
has arguable merit, I have no doubt that the natural way of analysing their complaint
accords with their primary formulation of it: it is of discrimination of the type
explained in the Thlimmenos case, namely that, by subjecting them to the revised
cap, the government has treated the DA cohorts similarly to a specified group whose
situation is relevantly different from theirs and thus that, subject to justification, it
should have treated them differently from it.
45. I confess that I have found it less easy to understand the way in which the DS
appellants formulate their complaint. They contend that the revised cap represents
discrimination, both direct and indirect, which violates the Convention rights of all
lone parents (and/or women because 90% of lone parents are women) and of all
children of lone parents. A group of all lone parents would of course include lone
parents with children all aged between five and 18, ie all of school age; and so too a
group of all children of lone parents would include children of school age. But the
evidence of the DS appellants has scarcely been directed to the effect of the cap on
households with children all of school age. Mr Drabble is no doubt entitled, by
reference to the statistics set out in para 22 above, to complain of the particular effect
of the cap on all lone parents and thus on women; but, insofar as they are lone parents
of children all of school age, it is already obvious that the government can justify it.
Page 17
In my view the complaint of the DS appellants which the court should proceed to
address is their fall-back complaint, namely that the cap violates the Convention
rights (a) of all lone parents with a child aged under five and (b) of all children aged
under five of lone parents (together, “the DS cohorts”). Although, for reasons
unclear, the DS appellants formulate their fall-back complaint only reluctantly in
accordance with the Thlimmenos case, such seems to me to be, as in the DA case, its
natural formulation, namely that, by subjecting them to the revised cap, the
government has treated the DS cohorts similarly to a specified group whose situation
is relevantly different from theirs and thus that, subject to justification, it should
have treated them differently from it.
Issue 4: Comparators
46. The question then arises: what is the specified group which the government
is said to have treated similarly to the DA and the DS cohorts? As here, the
identification of a comparator group can be difficult. In the present case is the proper
comparator
(a) dual-care parents with a child aged under two or under five; or
(b) lone parents without a child aged under two or under five; or
(c) all others subjected to the revised cap?
All three answers are tenable. Collins J favoured comparison with the group at (c);
and McCombe LJ found no reason to disagree with him – see paras 155, 156 and
173 of his judgment. Sir Patrick and Sir Brian favoured comparison with the group
at (b) – see paras 115 and 183 of their judgments. Mr Drabble commends comparison
with the group at (a). This court’s experience is that, of the various tenable
comparators in any particular case, adroit advocates will commend the one which
would best serve their purpose in relation to the issues which follow. In AL (Serbia)
v Secretary of State for the Home Department [2008] UKHL 42, [2008] 1 WLR
1434, Lady Hale said at para 28:
“… so much argument has been devoted in this case, and in too
many others, to identifying the precise characteristics of the
persons with whom these two young men should be compared.
This is an arid exercise.”
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47. Blessed is simplicity. The complaint made by the appellants is that their
cohorts should not have been subjected to the revised cap. The natural corollary is,
as Mr Wise contends, that they are comparing their cohorts with all others subjected
to the cap: so the natural comparator is the group at (c). Nevertheless, in arguing that
there has been an objectionable similarity of treatment between the DA and the DS
cohorts, on the one hand, and all others subjected to the cap, on the other, the
appellants may seek to highlight their objection by reference to subgroups, such as
those at (a) and (b), whose situations are alleged to be relevantly different.
Issue 5: Different situations
48. In DH v Czech Republic (2008) 47 EHRR 3 the Grand Chamber of the
ECtHR said in para 175 that “discrimination means treating differently, without an
objective and reasonable justification, persons in relevantly similar situations”. Recast to cover the type of discrimination recognised in the Thlimmenos case, the
proposition is that it means treating similarly, without an objective and reasonable
justification, persons in relevantly different situations. In Carson v United Kingdom
(2010) 51 EHRR 13 the Grand Chamber explained in para 61 what was meant by
the absence of objective and reasonable justification: “in other words, if it does not
pursue a legitimate aim or if there is not a reasonable relationship of proportionality
between the means employed and the aim sought to be realised”.
49. Clarity of language aids clarity of thought. It is worthwhile to stress, as the
court did in the Mathieson case in para 24, that the frequent reference to “justified
discrimination” in the domestic discussion of the concept is, as a matter of law, the
expression of a contradiction in terms. As the terminology long favoured by the
Grand Chamber shows, justification negatives the very existence of discrimination.
50. In the DH case the Grand Chamber proceeded to explain in para 177 that,
once the applicant had shown a difference in treatment of persons in relevantly
similar situations, the burden of proof lay on the state to establish that it was
justified; and in para 178 that what shifted the burden on to the state was “prima
facie evidence”.
51. There is clear prima facie evidence that – in the terms of the re-cast
proposition – the DA and the DS cohorts are in a relevantly different situation from
those others who have been treated similarly to them by their common subjection to
the revised cap. For it appears
(a) that, in the case of a lone parent of a child below school age, in
particular of a child below the age of two, it is contrary to the interests both
Page 19
of herself, of her child and of the family as a whole that she should in effect
be constrained to work also outside the home;
(b) that, by the conditions which it has attached to the receipt of income
support, the government has itself decided that it is contrary to their interests;
(c) that, irrespective of whether it is contrary to their interests for her to
be so constrained, the extra difficulty, beyond that faced by others subjected
to the cap, which confronts such parents in finding not only suitable work but
also suitable childcare is plain;
(d) that, in the case of a child aged under two, the absence of any free
childcare further increases that difficulty;
(e) that the incidence of failure of those represented by the DA and the DS
cohorts to escape the cap, namely in the case of the wider DS cohort 54%,
and in the case of the narrower DA cohort 25%, of all those who suffer it,
demonstrates its disproportionate impact upon them; and
(f) that, while the effect of the cap on all households who suffer it is to
reduce their income below the poverty line, poverty has a disproportionate
effect on the young children within these cohorts, stunting major aspects of
their development in the long term as well as in the short term.
Issue 6: Focus of justification
52. In the first benefit cap case Lord Reed said in para 14:
“… the cap … affects a higher number of women than men
because of differences in the extent to which the sexes take
responsibility for the care of children following the break-up of
relationships. Whether that differential effect has an objective
and reasonable justification depends on whether the legislation
governing the cap, which brings about that differential effect,
has a legitimate aim and is a proportionate means of realising
that aim.”
53. May I suggest, with respect, that Lord Reed may there have identified the
focus of the justification too widely? He described it as “the legislation governing
Page 20
the cap”. In A v Secretary of State for the Home Department [2004] UKHL 56,
[2005] 2 AC 68, Lord Bingham of Cornhill stated in para 68:
“What has to be justified is not the measure in issue but the
difference in treatment between one person or group and
another.”
In the first benefit cap case Lady Hale in para 188 of her dissenting judgment cited
Lord Bingham’s statement and concluded:
“It is not enough for the Government to explain why they
brought in a benefit cap scheme. That can readily be
understood. They have to explain why they brought in the
scheme in a way which has disproportionately adverse effects
on women.”
54. I conclude that what the government has to justify in the present case is its
failure to amend the 2006 Regulations so as to provide for exemption of the DA and
DS cohorts from the revised cap. The Secretary of State does not appear to challenge
this conclusion.
Issue 7: Test of justification
55. This court has been proceeding down two different paths in its search for the
proper test by which to assess the justification under article 14 for an economic
measure introduced by the democratically empowered arms of the state. In
retrospect this duality has been unhelpful. I regret having contributed to it.
56. The considerations which have informed the mapping of both paths is best
explained by two citations. First, from the judgment of Lord Hope of Craighead in
In re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] AC 173, para 48:
“Cases about discrimination in an area of social policy … will
always be appropriate for judicial scrutiny. The constitutional
responsibility in this area of our law resides with the courts.
The more contentious the issue is, the greater the risk that some
people will be discriminated against in ways that engage their
Convention rights. It is for the courts to see that this does not
happen. It is with them that the ultimate safeguard against
discrimination rests.”
Page 21
Second, from the judgment of Lord Reed in the first benefit cap case:
“92. Finally, it has been explained many times that the
Human Rights Act 1998 entails some adjustment of the
respective constitutional roles of the courts, the executive and
the legislature, but does not eliminate the differences between
them: differences, for example, in relation to their composition,
their expertise, their accountability and their legitimacy. It
therefore does not alter the fact that certain matters are by their
nature more suitable for determination by Government or
Parliament than by the courts. In so far as matters of that nature
have to be considered by the courts when deciding whether
executive action or legislation is compatible with Convention
rights, that is something which the courts can and do properly
take into account, by giving weight to the determination of
those matters by the primary decision-maker.
93. That consideration is relevant to these appeals, since the
question of proportionality involves controversial issues of
social and economic policy, with major implications for public
expenditure. The determination of those issues is pre-eminently
the function of democratically elected institutions. It is
therefore necessary for the court to give due weight to the
considered assessment made by those institutions …”
57. Lord Reed then completed para 93 by adding
“Unless manifestly without reasonable foundation, their
assessment should be respected.”
58. The appropriateness of an inquiry into whether the adverse effects of certain
measures are manifestly without reasonable foundation is firmly rooted in the
jurisprudence of the ECtHR. In James v United Kingdom (1986) 8 EHRR 123, in
which it rejected the challenge to the legislation in England and Wales for leasehold
enfranchisement, that court, in plenary session, held at para 46 that it should respect
the judgment of the national legislature as to what was in the public interest unless
it was manifestly without reasonable foundation. And in Stec v United Kingdom
(2006) 43 EHRR 47, para 52, which it repeated word for word in Carson v United
Kingdom (2010) 51 EHRR 13, para 61, the Grand Chamber, addressing complaints
of discrimination arising out of the rules for entitlement to social security benefits,
held that it should respect the national legislature’s determination of where the
public interest lay when devising economic or social measures unless it was
Page 22
manifestly without reasonable foundation. It explained that this more benign
approach to the establishment of justification for the adverse effects of a rule flowed
from the margin of appreciation which was wide in this area of decision-making.
59. I now accept that the weight of authority in our court mandates inquiry into
the justification of the adverse effects of rules for entitlement to welfare benefits by
reference to whether they are manifestly without reasonable foundation.
60. In Humphreys v Revenue and Customs Comrs [2012] UKSC 18, [2012] 1
WLR 1545, the court rejected a complaint that a rule for entitlement to child tax
credit discriminated against men on the basis that the different treatment of men
which resulted from the rule was not manifestly without reasonable foundation. In
her judgment, with which the other members of the court agreed, Lady Hale said in
para 19 that in the context of state benefits the normally strict test for justification
of the effect of a rule alleged to be discriminatory on grounds of sex “gives way”;
but she added in para 22 that it did not follow that such a rule should escape careful
scrutiny.
61. The possible mapping of a different path emerged in the judgment of Lord
Mance in In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015]
UKSC 3, [2015] AC 1016. But the subject-matter was not the entitlement to welfare
benefits. It was a proposed bill in the National Assembly of Wales for costs incurred
by NHS Wales to be cast upon identified groups. The court’s decision was that the
bill fell outside the assembly’s legislative competence. But Lord Mance proceeded
to consider, in passing, whether the bill would have infringed the rights of the groups
under article 1 p 1. This required him to consider how the court should assess
whether a deprivation of property was justified. In this regard he referred in para 45
to the four stages of a conventional inquiry into justification. In para 52 he held that
the first three stages (which require the establishment of a legitimate aim of the
measure, of a rational connection of the measure to the aim and of an inability to
achieve it less intrusively) could be addressed by whether the contentions in support
of the measure were manifestly without reasonable foundation; but that the fourth
stage (which requires the establishment of a fair balance between all the interests in
play) fell for decision by the court, although it might pay significant respect to the
balance favoured by those responsible for the measure.
62. A month after delivery of its judgments in the Wales case the court delivered
its judgments in the first benefit cap case. It proceeded on the agreed basis that, if
the analysis reached the stage at which the effect of the impugned provisions fell to
be justified, the appellants had to establish that it was manifestly without reasonable
foundation; and, by a majority, the court held that they had failed to satisfy this
agreed criterion. In their dissenting judgments Lady Hale and Lord Kerr duly applied
the agreed criterion, albeit with opposite results. But in para 209 of her judgment
Page 23
Lady Hale referred to para 52 of Lord Mance’s judgment in the Wales case and
observed that a benefit cap closely resembled a deprivation of property; and in para
210 she floated the idea that, in the absence of agreement upon the criterion, it might
have been possible to limit its application to the stages of the conventional inquiry
referable to the aim of the provisions and to exclude its application to the final stage
referable to its fair balance and overall proportionality.
63. Almost two years later the court delivered its judgments in the bedroom tax
case, cited in para 30 above. Two of the three conjoined appeals concerned claims
that the effect of rules for the computation of housing benefit was to discriminate
against disabled people in the enjoyment of their rights under article 8 and/or article
1 p 1. Giving the main judgment, Lord Toulson recorded in para 28 the primary
contention of the claimants in the first appeal as having been that the Court of Appeal
had erred in asking whether the treatment of which they complained was manifestly
without reasonable foundation. In paras 29 to 38 he then at length set out reasons in
support of his conclusion, in which all the other members of the court concurred,
that the Court of Appeal had not erred when, in assessing justification for the effect
of the rules on the claimants, it had asked itself that single question.
64. Several months after delivery of the judgments in the bedroom tax case, the
court delivered its judgments in the A case cited in para 40 above. The case
concerned not welfare benefits but the government’s refusal, partly on grounds of
cost, to exercise its power to require the NHS in England to provide free abortion
services to women usually resident in Northern Ireland. One of the arguments on
behalf of the women was that the effect of its refusal was to discriminate against
them in the enjoyment of their rights under article 8 of the Convention. I gave a
judgment, with which Lord Reed and Lord Hughes agreed, in which I rejected the
argument. Lady Hale and Lord Kerr gave judgments in which they upheld it. It was
in the course of my judgment, in para 33, that I cited the judgment of Lord Mance
in the Wales case and asserted it to have become clear that, of the four aspects of an
inquiry into justification under the Convention of the effect of a measure of
economic or social policy, the fourth, relating to a fair balance, fell to be answered
by the court for itself and not by reference to whether it was manifestly without
reasonable foundation.
65. We may put aside consideration of whether the government decision
impugned in the A case was of a character, unlike its rules of entitlement to welfare
benefits, which made my suggested approach to its justification sound in law. For,
even if so, I expressed myself too widely. Even though none of the other members
of the court, including those in dissent, took issue with what I said, I take sole
responsibility for it. Probably also emboldened by Lady Hale’s observations in the
first benefit cap case, I reached too quickly for the observations of Lord Mance in
the Wales case. For by then there was – and there still remains – clear authority both
in the Humphreys case and in the bedroom tax case for the proposition that, at any
Page 24
rate in relation to the government’s need to justify what would otherwise be a
discriminatory effect of a rule governing entitlement to welfare benefits, the sole
question is whether it is manifestly without reasonable foundation. Let there be no
future doubt about it.
66. How does the criterion of whether the adverse treatment was manifestly
without reasonable foundation fit together with the burden on the state to establish
justification, explained in para 50 above? For the phraseology of the criterion
demonstrates that it is something for the complainant, rather than for the state, to
establish. The rationalisation has to be that, when the state puts forward its reasons
for having countenanced the adverse treatment, it establishes justification for it
unless the complainant demonstrates that it was manifestly without reasonable
foundation. But reference in this context to any burden, in particular to a burden of
proof, is more theoretical than real. The court will proactively examine whether the
foundation is reasonable; and it is fanciful to contemplate its concluding that,
although the state had failed to persuade the court that it was reasonable, the claim
failed because the complainant had failed to persuade the court that it was manifestly
unreasonable.
Issue 8: Content of UNCRC rights
67. Article 3 of the UNCRC provides:
“1. In all actions concerning children, whether undertaken
by … courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary
consideration.”
A move is afoot, exemplified by Lord Kerr’s judgment in the first benefit cap case
at paras 247 to 257, for UK courts to treat the UNCRC, which the UK has ratified,
as being, exceptionally, part of our domestic law. At present, however, it forms no
part of it.
68. What does the concept of the best interests of the child in article 3.1
encompass? In the Mathieson case, at para 39, this court approved a suggestion
which Lord Carnwath had made in para 105 of the first benefit cap case to the effect
that authoritative guidance was to be found in para 6 of General Comment No 14
(2013) of the UN Committee on the Rights of the Child. There the committee had
suggested that the concept had three dimensions:
Page 25
(a) a substantive right of the child to have his or her best interests assessed
as a primary consideration when different interests are being considered in
order to reach a decision on the issue at stake;
(b) an interpretative principle, irrelevant to the present appeals; and
importantly;
(c) a rule of procedure that, whenever a decision is to be made that will
affect an identified group of children, the decision-making process must
include an evaluation of the possible impact of the decision on them.
69. In the light in particular of the Mathieson case, the government cannot deny
that the committee’s analysis is authoritative guidance in relation to the dimensions
of the concept in article 3.1. It can submit only, and correctly, that the guidance is
not binding even on the international plane and that, while it may influence, it
should, as mere guidance, never drive a conclusion that the article has been
breached.
70. The UNCRC also provides:
(a) under article 26(1) that “States Parties shall recognize for every child
the right to benefit from social security … and shall take the necessary
measures to achieve the full realization of this right in accordance with their
national law”;
(b) under article 27(1) that “States Parties recognize the right of every
child to a standard of living adequate for the child’s physical, mental,
spiritual, moral and social development”; and
(c) under article 27(3), having at (2) cast upon parents the primary
responsibility for securing living conditions necessary for their child’s
development, that “States Parties, in accordance with national conditions and
within their means, shall take appropriate measures to assist parents … to
implement this right and shall in case of need provide material assistance …
particularly with regard to nutrition, clothing and housing”.
Page 26
Issue 9: Relevance of UNCRC rights
71. The ECtHR has made it clear that, where relevant, the content of another
international convention, in particular one relating to human rights such as the
UNCRC, should inform interpretation of the Convention: Neulinger v Switzerland
(2010) 54 EHRR 1087, paras 131 and 132.
72. It follows that, when relevant, the content of the UNCRC can inform inquiry
into the alleged violation of article 14 of the Convention, when taken with one of its
substantive rights.
73. But in what circumstances is any breach of article 3.1 of the UNCRC relevant
to an alleged violation of article 14? The question was addressed by each of the five
members of this court in the first benefit cap case, in which the suggested violation
of article 14 lay in the cap’s alleged discrimination against women in the enjoyment
of their right to possession of welfare benefits under article 1 p 1. The answers were
as follows:
(a) Lord Reed assumed, rather than held, in para 88 that the cap breached
article 3.1 of the UNCRC but held at para 89 that such breach was irrelevant
to the alleged discrimination against women.
(b) Lord Carnwath held in paras 122 to 128 that the cap did breach the
article but held in paras 125 to 131 that such breach was irrelevant to the
alleged discrimination.
(c) Lord Hughes held in para 146 that any such breach was irrelevant to
the alleged discrimination and in paras 148 to 155 that in any event the cap
did not breach the article.
(d) Lady Hale held in para 224 that any breach of the article was relevant
to the alleged discrimination and in paras 226 to 229 that the cap did breach
it.
(e) Lord Kerr, like Lady Hale, held in para 262 that the cap did breach the
article and in paras 263 to 268 that the breach was relevant to the alleged
discrimination.
Page 27
74. In the present case the complaint of discrimination differs from the complaint
in the first benefit cap case. The adult victims of the alleged discrimination are now
cast not merely as women but as lone parents of children below school age.
Moreover these children are now cast as further victims of it in their own right. And,
although the lone parents repeat their complaint of discrimination in the enjoyment
of their rights under article 1 p 1 of the Convention, both they and their children now
complain of it in relation to the enjoyment of their respective rights to respect for
their family life under article 8.
75. In explaining in the first benefit cap case that a breach, if any, of article 3.1
was irrelevant to the alleged discrimination, Lord Reed, Lord Carnwath and Lord
Hughes each stressed in the paragraphs cited above that in their view the alleged
discrimination could not be said to be directed against children. It is clear that the
government cannot import their reasoning into the present proceedings. Equally it
undertakes a mammoth task in maintaining the argument that, in setting the terms
of the revised cap, it was not taking an action “concerning children” within the
meaning of article 3.1. If valid in relation to the revised cap, the argument would
have been valid in relation to the original cap. But it was rejected by Lord Carnwath,
Lady Hale and Lord Kerr; and it was specifically upheld neither by Lord Reed nor
by Lord Hughes. In para 107 Lord Carnwath referred further to General Comment
No 14, namely to para 19 in which the committee explained that the duty under
article 3.1 applies to all decisions on the part of public authorities which directly or
indirectly affect children.
76. Insofar as in the present appeals the children themselves claim a violation of
rights of their own under article 14, taken with article 8, their rights should be
construed in the light of the UNCRC as an international convention which identifies
the level of consideration which should have been given to their interests before
subjecting their households to the revised cap.
77. But can the lone parents themselves also claim that their own rights under
article 14, taken with article 8, must be construed in the light of the provision in the
UNCRC for consideration of their children’s interests? The interests of the lone
parents in play in the present appeals are indistinguishable from the interests of their
children below school age. Their claim is as parents: so, without their children, it
would not exist. Indeed their claim is as lone parents: so responsibility for their
children in effect rests solely upon them. And their claim is to defend furtherance of
their family life from the effects of a cap on benefits specifically computed by
reference to the needs of their children and themselves taken together. Never more
apt than to the present appeals is the observation of Lady Hale in Beoku-Betts v
Secretary of State for the Home Department [2008] UKHL 39, [2009] AC 115, in
para 4 that:
Page 28
“The right to respect for the family life of one necessarily
encompasses the right to respect for the family life of others,
normally a spouse or minor children, with whom the family life
is enjoyed.”
78. The claims of all the appellant cohorts under article 14, taken with article 8,
therefore require the court to proceed to assess whether, in setting the terms of the
revised cap, the government breached article 3.1 of the UNCRC. Were the court to
hold that it had done so, what would the effect of it be? The overarching inquiry is
whether its decision not to exempt the appellant cohorts from the cap was manifestly
without reasonable foundation. As McCombe LJ observed, albeit more forcefully,
in para 178 of his dissenting judgment in the DA case, a foundation for the decision
not made in substantial compliance with article 3.1 might well be manifestly
unreasonable.
Issue 10: Breach of UNCRC rights
79. In deciding upon the terms of the revised cap, did the government have
regard, as a primary consideration, to the best interests of children below school age
of lone parents and did it evaluate the possible impact of its decision upon them?
80. In answering this question within its overarching inquiry into the alleged
violation of Convention rights, the court can, without constitutional impropriety,
have regard to Parliamentary materials which explain the background to the
government’s decision and in particular its policy objectives: Wilson v First County
Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816, paras 61 to 66.
81. It is worthwhile to preface an attempted answer to the question by adverting
to two features of the Parliamentary discussion of the Bill which introduced the
original cap, both briefly noted by Lord Reed in his judgment in the first benefit cap
case at paras 29 and 40.
(a) In May 2011 Ms Buck MP tabled an amendment before the Public Bill
Committee of the House of Commons to the effect that households should be
exempt from the cap if childcare costs outweighed earnings. She referred in
particular to lone parents with four or five children, of whom one was aged
under five. The government opposed the amendment, which Ms Buck
withdrew.
Page 29
(b) In November 2011 the Lord Bishop of Ripon tabled an amendment
before the Lords’ Grand Committee that lone parents of children aged under
five should be exempt from the cap. He said:
“The exemption of lone parents with children under five is
particularly important. The current system … recognise[s] that
those additional commitments make it hard for them to move
into work and, indeed, recognise[s] that they are not expected
to seek work … it seems unreasonable to place a cap on the
benefits that they should receive when we acknowledge that
they should not be put under pressure to seek work.”
The government opposed the amendment on the basis that encouragement to work
did not equate to a requirement to work and that there had to be a limit to the amount
of a household’s benefits. In the end the bishop did not press his amendment.
82. On 8 September 2015, following presentation to Parliament of the Bill which
included provision for the revised cap, the government published its Memorandum
to the Joint Committee on Human Rights, in which, pursuant to its duty under
section 19 of the 1998 Act, it stated that in its view the provision was compatible
with Convention rights. In the memorandum the government
(a) accepted in para 18 that the provision fell within the ambit of article 1
p 1 and arguably of article 8;
(b) noted in para 19 the decision of this court in the first benefit cap case;
(c) accepted in para 19 that 60% of those capped under the original
scheme had been lone parents;
(d) contended in para 21 that, to the extent that the revised cap impacted
upon them disproportionately to its impact on others, its impact was justified
in the interest of the economic well-being of the UK and of incentivising
people to work; and
(e) claimed in para 77 that, in the light of this court’s decision in the first
benefit cap case, it had, in relation to the proposed revision of the cap, fully
considered what it described as its “obligations” under the UNCRC because
the best interests of children overall were promoted when their parents were
in work and because work remained the surest route out of poverty.
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83. On 10 September 2015 Gingerbread made representations to the Public Bill
Committee of the House of Commons in respect of the proposed revision of the cap.
Its policy director said:
“Over 60% of people capped so far have been single parents;
70% of them have children under five and 34% have children
under two … the younger the child is when the parent is
capped, the harder it is for them to get into work … we really
also need to be looking at the contradiction between the benefit
cap and the conditionality policy that exists. … If you are
capping up to 20,000 single parents who have children under
two, there is no childcare support available for that group at
present. There is also … a real shortage of childcare available,
so there are really clear reasons why that group of single
parents will not be able to go into work. [The government’s]
research, again, has shown that where those people who are
capped do not find work, it is likely that 40,000 more children
would be pushed into poverty. When we are looking at the
benefit cap we need to look at the circumstances of the family
and the age of the child.”
84. On 17 September 2015 Ms Thornberry MP, then the shadow minister of state
for employment, tabled before the same committee an amendment to the Bill to the
effect that the revised cap should not apply to “persons … responsible for the care
of a child aged below two”. The group proposed to be exempted was therefore close
to the DA cohorts. But it was not identical in that Ms Thornberry’s amendment
appeared to exempt dual-care parents as well as lone parents, although at one point
in the discussion she seemed to suggest otherwise. In arguing for her amendment
Ms Thornberry suggested that the original cap had overwhelmingly applied to
people who were recognised within the benefits system itself as being unable to
work. She referred to the evidence which the committee had heard a week earlier,
including no doubt that of Gingerbread, and she explained that the narrow exemption
which she proposed was for a group that was perhaps the most acutely vulnerable
and the least able to change its circumstances. But the committee rejected the
amendment by ten votes to five.
85. Between November 2015 and February 2016 the House of Lords in debates
and in committee considered in detail the provision for the revised cap. In summary
(a) Baroness Lister suggested that it was not reasonable to expect a lone
parent with a child aged under one to work. She suggested that the
government had not properly assessed the best interests of different groups
of children pursuant to its obligation under article 3.1 of the UNCRC.
Page 31
(b) Baroness Manzoor suggested that the lower cap would
disproportionately affect single parents with a child aged under five.
(c) Baroness Hollis suggested that lone parents with children aged under
three were effectively out of the labour market. She tabled an amendment to
exempt carers of children aged under nine months from the cap.
But the amendment proposed by Baroness Hollis failed; and the government did not
act on the various suggestions. Lord Freud on its behalf stressed the importance of
the message that work pays and that households on benefits should not receive more
than working households; and he declared that the way to address hard cases was by
DHPs, to which the government would allocate £870m over the following five years.
86. The government’s Equality Analysis dated September 2016 in relation to the
2016 Regulations, like its IA dated August 2016, claimed that the government had
taken the UNCRC into account. It stated that it was not in the best interests of
children to live in workless households and referred to studies which concluded that
children in such households exhibited greater behavioural problems from the age of
seven and poorer academic attainment. It recognised that lone parents might find it
hard to work as a result of childcare responsibilities but pointed out that measures
of mitigation, in particular free childcare and DHPs, had been put in place.
87. By a narrow margin I am driven to conclude that, in relation to its refusal to
amend the 2006 Regulations so as to exempt the appellant cohorts from the revised
cap, the government did not breach article 3.1 of the UNCRC in either of the relevant
dimensions of its concept of the best interests of a child. The Parliamentary and other
materials to which I have referred demonstrate that it did evaluate the likely impact
of the revised cap on lone parents with young children; and that it did assess their
best interests at a primary level of its overall consideration. This court must impose
on itself the discipline not, from its limited perspective, to address whether the
government’s evaluation of its impact was questionable; nor whether its assessment
of the best interests of young children was unbalanced in favour of perceived longterm advantages for them at the expense of obvious short-term privation.
Issue 11: Conclusion on justification
88. I am also driven to conclude that the government’s decision to treat the
appellant cohorts similarly to all others subjected to the revised cap was not
manifestly without reasonable foundation. In this regard, for reasons which I will
not rehearse, the DA cohorts have a stronger case than have the DS cohorts; but,
again by a narrow margin, even the stronger case fails. The appellants have not
Page 32
entered any substantial challenge to the government’s belief that there are better
long-term outcomes for children who live in households in which an adult works.
The belief may not represent the surest foundation for the similarity of treatment in
relation to the cap; but it is a reasonable foundation, in particular when accompanied
by provision for DHPs which are intended on a bespoke basis to address, and which
on the evidence are just about adequate in addressing, particular hardship which the
similarity of treatment may cause.
Disposal
89. There has been no Convention-related discrimination. The appeals must be
dismissed.
90. Had discrimination existed, the court would have proceeded to consider
whether to make a declaration that the failure to include the appellant cohorts in the
list of exemptions in the 2006 Regulations was incompatible with their Convention
rights. A declaration is a discretionary remedy; and to decide whether to exercise
the discretion would have precipitated substantial inquiry into the institutional
propriety for this court to make a declaration in relation to decisions about
entitlement to welfare benefits made by the government in Parliament following
protracted debate. But it is this same crucial, if sometimes problematic, concept of
institutional propriety which informs the test of justification, generous to the
government, of a measure such as that of the revised cap; and it is therefore at that
stage that, in relation to such a measure, the concept will usually play its part.
Postscript
91. These appeals were rightly brought. The arguments raised in them have been
of such weight as to attract this court’s most careful and sympathetic consideration;
and they have led two members of the court to enter a powerful dissent from the
majority’s dismissal of the appeals. On 12 March 2019, shortly prior to the delivery
today of these judgments and long after our hearing of the appeals, the Work and
Pensions Committee of the House of Commons published its report on “The Benefit
Cap”, 24th Report of Session 2017-19, HC 1477. Although in form a study of the
effect of the original as well as of the revised cap, the report inevitably focusses on
the current, more severe, effects of the revised cap. It addresses, although in far
greater detail, all the factors to which I have referred in paras 22 to 34 above under
the heading “Evidence”; as well, of course, as many more relevant factors. In the
report the committee calls on the government urgently to conduct a full audit of the
policy behind the benefit cap; to reconsider the limits at which benefits are capped;
and in particular to disapply the cap to those who, by reference to the conditions
attached to the receipt of income support, are not yet expected to look for work. The
Page 33
fact that a committee of the House of Commons is at this present time calling for
urgent review of the provisions of the revised cap would in my view have fortified
a decision, had the need to make it been reached, that institutional propriety militated
against the grant of a declaration of incompatibility at this stage: R (Nicklinson) v
Ministry of Justice [2014] UKSC 38, [2015] AC 657, paras 113-118 (Lord
Neuberger of Abbotsbury PSC).
LORD CARNWATH: (with whom Lord Reed and Lord Hughes agree)
92. I agree with Lord Wilson that the appeal should be dismissed, for the reason
that the approach adopted by the government, even if in other respects meeting the
tests for discrimination under article 14, was not, as he says, “manifestly without
reasonable foundation”. However, having been a member of the majority in the
related case of SG, I add some comments on the relationship between the two cases,
and some remaining points of difference (or difference of emphasis).
93. The benefit cap imposes a cap on the total amount of annual welfare benefits
that a given household can receive. The legality of the previous scheme under the
Welfare Reform Act 2012 was upheld by this court (by a majority) in R (SG) v
Secretary of State for Work and Pensions [2015] 1 WLR 1449. Although the scheme
was agreed to be discriminatory against women for the purposes of articles 14 and
A1P1, it was held to be justified because (in the words of the headnote):
“… the legislature’s policy choice in relation to general
measures of economic or social strategy, including welfare
benefits, would be respected unless it was manifestly without
reasonable foundation; that the view of the Government,
endorsed by Parliament, that achieving the legitimate aims of
fiscal savings, incentivising work and imposing a reasonable
limit on the amount of benefits which a household could
receive was sufficiently important to justify making the
Regulations despite their differential impact on men and
women, had not been manifestly without reasonable
foundation.”
That to my mind is an accurate summary of the leading judgment of Lord Reed,
agreed in terms by Lord Hughes, and implicitly by myself.
94. Furthermore the majority held that the case was not strengthened by reference
to article 3.1 of the UNCRC. It is convenient again to refer to the summary in the
headnote:
Page 34
“… even on an assumption (per Lord Reed and Lord Hughes
JJSC) or an acceptance (per Lord Carnwath JSC) that the
Secretary of State had failed to show how the Housing Benefit
Regulations 2006 were compatible with the article 3.1
obligation to treat the best interests of children as a primary
consideration, such failure did not have any bearing on whether
the legislation unjustifiably discriminated between men and
women in relation to their enjoyment of A1P1 property rights
…”
In this respect also, there was full agreement between the members of the majority
on the legal principles to be applied, articulated most fully by Lord Reed (at paras
78-91). In short, while article 3.1 is not a source of substantive rights or duties under
the European Convention, it may where appropriate be taken into account as an aid
to interpretation of those rights or duties. Although we differed as to whether article
3.1 had been in fact been complied with, we were agreed that it had no relevance to
the issue then before us of discrimination under article 14 in relation to the A1/P1
property rights of women.
95. The benefit cap legislation was politically controversial and subject to
vigorous debate in Parliament, directed to both the principle and the detail. The
difficulty posed by the legal issues in that appeal is apparent from the division of
opinion within the court, and from the time taken to reach a decision (almost 11
months). However, it must be taken as settling the issues of principle, absent a
challenge to the reasoning of the majority, some material change in the relevant
legislation or the circumstances of the individual cases, or some new argument of
substance which was not addressed.
96. The present challenge is to the amended scheme under the Welfare Reform
and Work Act 2016. By section 8 of the 2016 Act, the applicable cap was reduced
from £26,000 per annum for all families to £23,000 for families living in Greater
London, and £20,000 for families living outside London (“the Revised Benefit
Cap”). A significant change is that the amount of the cap is embodied in primary
legislation, rather than regulations, as is the list of benefits to which it applies,
including child benefits and child tax credit (section 96(10)). It is rightly not
suggested that these aspects of scheme, as now incorporated in primary legislation,
are in themselves open to review or incompatible with the Convention. To that
extent the scope for challenge has been reduced.
97. The 2012 Act gave the Secretary of State the power to make detailed
provision for the implementation of a benefit cap by way of regulations. Under
section 96(4)(c) of the 2012 Act, this includes a discretion to make exceptions to the
application of the cap. The Benefit Cap (Housing Benefit) Regulations 2012 (SI
Page 35
2012/2994) provide, inter alia, that adults who are entitled to “working tax credit”
are not subject to the benefit cap. In the case of a lone parent, receipt of working tax
credit requires that he or she engages in work for at least 16 hours per week. It is the
regulations which are the focus of the present attack. In summary the appellants
argue that their parental responsibilities, combined with the lack of adequate care
support, make it in effect impracticable for them to achieve the 16 hours of work
necessary to qualify for exemption. It is argued that failure to make an appropriate
exception for them under the regulations involved unjustified discrimination
contrary to article 14 of the ECHR.
98. Apart from the change in legislation, there appear to be three main differences
from the arguments as presented in the earlier cases:
i) Article 8 Particular emphasis has been placed on article 8 of the
Convention (rather than article 1 of Protocol 1 (“A1P1”) which was the main
focus of attention in SG), and its relevance to the “best interests” test under
the UNCRC;
ii) Status The focus has shifted to the so-called Thlimmenos principle, and
the groups allegedly discriminated against have been recalibrated and redefined in various ways: (DS appellants) (i) lone parents, (ii) lone parents
with children under the age of five (iii) children of parents in groups (i) or
(ii); (DA appellants) (iv) lone parents with children under two (v) children of
such parents.
iii) Test for justification It is argued that in the light of more recent
Supreme Court authority, the “manifestly without reasonable foundation”
criterion applied in SG, has been superseded by a broader “fair balance” test.
99. I will consider each of these points in turn before explaining my conclusions
in the present appeals.
(i) Article 8
100. As I noted in SG (para 99) article 8 had been mentioned by Mr Wise in his
printed case, not as a free-standing claim, but as an alternative route into article 14,
or as supporting his “best interests” claim in respect of the children under article 3.1
of the UNCRC. I noted that article 8 was not relied on by Mr Drabble QC, then
appearing for the Child Poverty Action Group. I was not at that time persuaded that
“either of Mr Wise’s formulations adds anything of substance to the claim based on
A1P1”. It may be in retrospect that we should have given more attention to this
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aspect of Mr Wise’s submissions. In any event, there is no doubt that the main
weight of the argument at that time, and the reasoning of the majority, were directed
to A1P1 rather than article 8.
101. Lord Hughes in particular drew a clear distinction between the two in the
particular context of the “best interests” principle under article 3.1 of the UNCRC:
“146. If the rights in question are the A1P1 property rights of
women, and their associated derivative right not to be
discriminated against in relation to those rights, it is an
impermissible step further to say that there is any interpretation
of those rights which article 3 of the UNCRC can inform. In
the case of article 8, the children’s interests are part of the
substantive right of the parent which is protected, namely
respect for her family life. In the case of A1P1 coupled with
article 14, the children’s interests may well be affected (as
here), but they are not part of the woman’s substantive right
which is protected, namely the right to be free from
discrimination in relation to her property. There is no question
of interpreting that article 14 right by reference to the children’s
interests …”
This approach is also consistent with established authority on the application of the
best interest principle in the context of article 8. As Lord Hodge said for the court in
Zoumbas v Secretary of State for the Home Department [2013] UKSC 74; [2013] 1
WLR 3690, para 10:
“The best interests of a child are an integral part of the
proportionality assessment under article 8 of the Convention.”
102. Accordingly the present appeal has required us to look in more detail at the
application of article 8. As to the application of article 14 in connection with article
8, it is unnecessary to repeat Lord Wilson’s review of the relevant Strasbourg
authorities under his issue 1. In agreement with him I am satisfied that the present
claims fall within “the ambit” of article 8 so as to engage the issue of discrimination
under article 14. I also agree with him that in that context the “best interests”
principle under article 3.1 is potentially relevant. I have more difficulty with the
issue of “status” to which I now turn.
Page 37
(ii) Identifying the relevant group or “status”
103. Although the Thlimmenos principle is now well-established, it does not in my
view materially change the nature of the inquiry from that undertaken in SG. In
particular it does not diminish the need under article 14 to show that the alleged
discrimination arose from a relevant “status”, and to identify a relevant
“comparator” with whose treatment that of the claimant group can be compared
(Lord Wilson’s issues 2 and 4).
104. In Thlimmenos v Greece the applicant was a Jehovah’s Witness who had been
convicted of insubordination under the Military Criminal Code for refusing to wear
a military uniform at a time of general mobilisation. He was subsequently refused
appointment as a Chartered Accountant under rules which excluded those convicted
of serious crimes. He argued that the lack of an appropriate exception for those
whose conviction was due to religious considerations constituted unlawful
discrimination under article 14 taken with article 9 of the Convention.
105. The argument was accepted by the Grand Chamber. Having noted that article
14 had hitherto been applied to differential treatment of persons in analogous
situations without objective and reasonable justification, the court continued:
“However, the court considers that this is not the only facet of
the prohibition of discrimination in article 14. The right not to
be discriminated against in the enjoyment of the rights
guaranteed under the Convention is also violated when states
without an objective and reasonable justification fail to treat
differently persons whose situations are significantly
different.” (para 44)
106. Although the court’s formulation of the principle does not refer to “status” as
a criterion, it is apparent from the preceding discussion that this point was not in
issue. In that respect the applicant’s argument as recorded by the court relied on his
position as a Jehovah’s Witness:
“The class of persons to which the applicant belonged, namely
male Jehovah’s Witnesses whose religion involved compelling
reasons for refusing to serve in the armed forces, was different
from the class of most other criminal offenders. The
Government’s failure to take account of this difference
amounted to discrimination not tolerated by article 14 of the
Convention taken in conjunction with article 9.” (para 34)
Page 38
That aspect of his case was not challenged. It is also clear that an important feature
of the case was the close link between the alleged discrimination and the protected
religious rights under article 9.
107. The Thlimmenos formulation has been often repeated and is not in doubt.
However, there are few illustrations of its practical scope and application. An
example is EB v Austria (Application No 31913/07, judgment of November 7,
2013), in which the First Section found that the principle required an exception to
the general rule that convictions remained on the person’s record even if the offence
in question had since been abolished. In that case, there was a violation of article 14
taken with article 8 as convictions for homosexual acts, later found to be
incompatible with the ECHR, remained on the applicants’ criminal records. We
were referred to no Strasbourg case in which the principle has been applied in the
context of social welfare legislation such as is in issue in this case. Although there
is no reason to exclude its operation in this context, the absence of successful cases
in Strasbourg may reflect the court’s recognition in this context of the “need for
national rules to be framed in broad terms” (SG para 15 per Lord Reed citing Carson
v United Kingdom (2010) 51 EHRR 13 para 62), and the consequent difficulty of
challenging the treatment of particular groups.
108. I must accept (as Lord Wilson says: para 39) that in R (Stott) v Secretary of
State for Justice the majority of this court adopted a relatively broad view of the
concept of “status”. On that basis I would agree that “lone parents” can properly be
regarded as having a status within the Thlimmenos principle. In agreement with Lord
Hodge, I am much more doubtful as to the appropriateness of the other narrower
forms of status relied on in this case. In particular I find it hard to see any basis for
defining the parents and the children as distinct groups; the adverse effects are on
the families, in which the interests of parents and children are jointly affected.
However, in the absence of any directly relevant Strasbourg authority on these
points, it is difficult to reach a concluded view. Like Lord Hodge I am content to
assume for present purposes that the “status” requirement is satisfied in respect of
each such group.
109. The relevant issues therefore are whether those groups or sub-groups are
sufficiently different from other comparable groups to have required separate
treatment under the Thlimmenos principle to avoid interference with their article 8
rights, and whether a failure in that regard can be justified.
(iii) Test for Justification
110. The argument that a less demanding test should be applied than “manifestly
without reasonable foundation” (or its hard-to-escape acronym “MWRF”) was most
Page 39
fully articulated by Mr Wise QC for DA. For the reasons given by Lord Wilson
(issue 7) I agree with him that this argument must be rejected, and that the
application of the MWRF should be regarded as beyond “future doubt”. However,
since this view is not accepted by all the members of the court, I feel it necessary to
add some comments of my own on Mr Wise’s arguments.
111. He started from the four-stage approach as summarised by Lady Hale in R
(Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57;
[2015] 1 WLR 3820, para 33:
“(i) does the measure have an legitimate aim sufficient to
justify the limitation of a fundamental right; (ii) is the measure
rationally connected to that aim; (iii) could a less intrusive
measure have been used; and (iv) bearing in mind the severity
of the consequences, the importance of the aim and the extent
to which the measure will contribute to that aim, has a fair
balance been struck between the rights of the individual and the
interests of the community?”
112. He accepted that the MWRF test was adopted by this court in Humphreys v
Her Majesty’s Revenue and Customs Comrs [2012] UKSC 18; [2012] 1 WLR 1545
(alleged discrimination in respect of state benefits), following the ECHR decision in
Stec v United Kingdom (2006) 43 EHRR 1017, and in other more recent cases.
However, in those cases, as he submitted (in his written case) –
“the Supreme Court did not distinguish between the different
elements of the justification analysis and, in particular, did not
distinguish between the questions whether a discriminatory
measure (i) pursued a legitimate aim or aims and (ii) was
proportionate in the sense of striking the requisite ‘fair
balance’.”
At the latter stage, he argued, MWRF has no application. For this he relied on what
was said by Lord Mance, with the agreement of the majority of the court in the Welsh
Asbestos case, and repeated in R (A) v Secretary of State for Health (as Lord Wilson
has explained: paras 61, 64).
113. With respect to those members of the court who think otherwise, it is clear in
my view that the MWRF test remains the appropriate test in the present context.
There is nothing in the later cases to support a departure from the position, as
accepted by all parties, and adopted by the court in the SG case. It is useful to begin
Page 40
by reference to what was said by Lady Hale (with the agreement of the rest of the
court) in the Humphreys case itself:
“17. The phrase ‘manifestly without reasonable foundation’
dates back to James v United Kingdom (1986) 8 EHRR 123,
para 46, which concerned the compatibility of leasehold
enfranchisement with article 1 of the First Protocol. In the Stec
case 43 EHRR 1017, the court clearly applied this test to the
state’s decisions as to when and how to correct the inequality
in the state pension ages, which had originally been introduced
to correct the disadvantaged position of women. ‘Similarly, the
decision to link eligibility for the reduced earnings allowance
to the pension system was reasonably and objectively justified,
given that this benefit is intended to compensate for reduced
earning capacity during a person’s working life’ (para 66). The
Grand Chamber applied the Stec test again to social security
benefits in Carson v United Kingdom (2010) 51 EHRR 369,
para 61, albeit in the context of discrimination on grounds of
country of residence and age rather than sex.
18. The same test was applied by Lord Neuberger of
Abbotsbury (with whom Lord Hope of Craighead, Lord Walker
of Gestingthorpe and Lord Rodger of Earlsferry agreed) in R
(RJM) v Secretary of State for Work and Pensions [2009] 1 AC
311, which concerned the denial of income support disability
premium to rough sleepers. Having quoted para 52 of the Stec
case he observed, at para 56, that this was ‘an area where the
court should be very slow to substitute its view for that of the
executive, especially as the discrimination is not on one of the
express, or primary grounds’. He went on to say that it was not
possible to characterise the views taken by the executive as
‘unreasonable’. He concluded at para 57:
‘The fact that there are grounds for criticising, or
disagreeing with, these views does not mean that they
must be rejected. Equally, the fact that the line may have
been drawn imperfectly does not mean that the policy
cannot be justified. Of course, there will come a point
where the justification for a policy is so weak, or the line
has been drawn in such an arbitrary position, that, even
with the broad margin of appreciation accorded to the
state, the court will conclude that the policy is
unjustifiable.’
Page 41
19. Their Lordships all stressed that this was not a case of
discrimination on one of the core or listed grounds and that this
might make a difference. In R (Carson) v Secretary of State for
Work and Pensions; [2006] 1 AC 173, both Lord Hoffmann
and Lord Walker drew a distinction between discrimination on
grounds such as race and sex (sometimes referred to as
‘suspect’) and discrimination on grounds such as place of
residence and age, with which that case was concerned. But
that was before the Grand Chamber’s decision in the Stec case
… It seems clear from Stec, however, that the normally strict
test for justification of sex discrimination in the enjoyment of
the Convention rights gives way to the ‘manifestly without
reasonable foundation’ test in the context of state benefits. The
same principles were applied to the sex discrimination involved
in denying widow’s pensions to men in Runkee v United
Kingdom [2007] 2 FCR 178, para 36. If they apply to the direct
sex discrimination involved in the Stec and Runkee cases, they
must, as the Court of Appeal observed at para 50, apply a
fortiori to the indirect sex discrimination with which we are
concerned …”
114. As that passage shows, authority at the highest level in this country for the
application of the MWRF test goes back at least to the House of Lords in RJM. Also
noteworthy is her reference to the distinction drawn by the House of Lords between
the “core” grounds such as race and sex, and other grounds; and her acceptance that,
even in the core context of sex discrimination, the “normally strict test” for
justification “gives way” to the MWRF test in the context of state benefits. In the
SG case itself the discrimination was said to be against women, and thus within one
of the core grounds. As one moves further away from those concepts to the more
distant groups identified in the present case, there is still less reason to depart from
the MWRF approach.
115. SG was argued in April 2014 but not decided until March 2015. As already
noted, there was no disagreement between the parties as to the application of the
MWRF test. By that time the decision in the Welsh Asbestos case had been given
(and was mentioned by Lady Hale: para 209); but it was not treated by the majority,
or indeed the parties, as requiring any qualification of the MWRF test. Nor was there
any such departure or qualification in the Tigere case itself (decided in July 2015).
The case concerned discrimination in relation to eligibility for student loans. There
was a disagreement between the members of the court over the appropriate test on
the facts of that case, but not on the correctness of the MWRF as applied in the cases
of Humphreys or SG. Lords Sumption and Reed would have applied the MWRF test.
Lord Hughes concluded that the appeal should be allowed whatever the test. Lady
Hale (paras 27-29, with the agreement of Lord Kerr) referred to those judgments
Page 42
without adverse comment, saying “… education is rather different”. She went on to
cite the Strasbourg decision in Ponomaryov v Bulgaria (2011) 59 EHRR 799,
including in particular to observation of the court that “unlike some other public
services, education is a right that enjoys direct protection under the Convention …”.
116. As Lord Wilson says (para 63), the issue was in any event put beyond
reasonable argument by the seven-justice court (including Lady Hale and Lord
Mance) in the “bedroom tax” case (R (MA) v Secretary of State for Work and
Pensions). Giving the leading judgment (with the agreement on this point of all
members of the court), Lord Toulson noted the submission that, because in
Humphreys the unsuccessful appellant had not argued for anything other than the
Stec test, it was appropriate to ask whether there was good reason to depart from
what Lady Hale had said (para 31). As he then pointed out (para 32):
“The fundamental reason for applying the manifestly without
reasonable foundation test in cases about inequality in welfare
systems was given by the Grand Chamber of the European
Court of Human Rights in Stec, para 52. Choices about welfare
systems involve policy decisions on economic and social
matters which are pre-eminently matters for national
authorities.”
He quoted the relevant passage from Lady Hale’s judgment in Humphreys and noted
her comment that the less stringent test “did not mean that the justifications put
forward should escape ‘careful scrutiny’”. Having commented in detail on the
parties’ submissions, and the more recent Strasbourg authorities, he concluded by
simply affirming what had been said in that passage (para 38).
117. In her judgment in the present case, as I understand it, Lady Hale does not
seek to question the application of the MWRF principle in these appeals, but
suggests that the court may need to return to it in the future. I cannot with respect
agree. She accepts that the decision in MA was reached following “a wholesale
attack” on the MWRF principle, but observes that there was no discussion of a “more
nuanced” approach along the lines suggested by Lord Mance in the Welsh Asbestos
case. I do not see that this in any way diminishes the authority of the decision. It is
to be noted that, in spite of the presence of Lord Mance, and although the Welsh
Asbestos case was included in the list of authorities cited, neither he nor anyone else
seems to have regarded it as relevant in that context. That may well have been
because the context in which the issue was considered was quite different from MA
(and from the present case): not social security benefits, but compensation for
asbestos-related disease; and not article 14 discrimination, but interference with
property rights under A1P1. Indeed in Welsh Asbestos there had been no reference
to Stec or Humphreys in either the judgment or in the submissions.
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118. Lord Kerr goes further and would hold, in agreement with Mr Wise’s
submission, that the MWRF test should not be applied to the final stage of the
proportionality analysis. Although he does not in terms explain how he feels able to
disregard the authority of MA, he emphasises that the technique applied to that
question by the national court is to be distinguished from that applied in Strasbourg
at the supra-national level. However, the fact that the Strasbourg court uses the
MWRF test when applying the margin of appreciation and that the same margin of
appreciation does not necessarily apply at the national level does not entail that
domestic courts cannot also use the MWRF test. It is being used as a means of
allowing the political branches of the constitution an appropriately generous
measure of leeway when assessing the proportionality of measures concerning
economic and social policy. The seven-justice decision in MA surely settled the point
for the foreseeable future.
Conclusion
119. In conclusion I adopt with respect what was said by Sir Patrick Elias in the
Court of Appeal in DA (which related solely to the group said to be constituted by
lone parents with children aged under two):
“No one should underestimate the very real hardships caused
by the imposition of the cap, and the particular circumstances
of the individual claimants in this case bear witness to the harsh
circumstances in which they and those similarly placed live, as
does detailed evidence from Shelter. But they are difficulties
which have to be borne by all non-working households to a
greater or lesser extent; they are not unique to this cohort, nor
does the cap necessarily bear more harshly on them. There is
no linear relationship between the financial impact on families
caused by the cap and the age of the children. Indeed, it is
obvious … that households with a greater number of children
will typically suffer more, whatever the age of their children,
simply because the parent or parents have more mouths to feed
and are likely to need larger accommodation …
It follows that the proper focus in this case must be whether the
problems faced by the particular cohort of parents in securing
effective and affordable child care are sufficiently different
from problems facing other lone parents to entitle the court to
conclude that it is manifestly without reasonable foundation to
fail to exempt them from the operation of the cap …” (paras
105-106)
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120. Although the number of possible groups has been extended in the appeals as
they have come to this court, the thrust of that passage remains valid. It is necessary
to distinguish between the general impact of the cap, which is undoubtedly harsh,
but is inherent in the scheme as approved by Parliament, and particular effects on an
identifiable group which can properly be the subject of a distinct claim under article
14.
121. Applying that approach, I ask whether there are factors in the present cases
which require the court to reach a different overall conclusion from that reached in
SG. I have noted that in some respects the task facing the appellants is more difficult.
The amount of the cap, and the benefits to which it applies (including child benefit)
are enshrined in primary legislation, which is admittedly not open to challenge.
Although I have accepted that the various groups identified by the claimants can be
regarded as meeting the “status” requirement for the purposes of article 14, they are
far from the “core” grounds to which special protection is given under that article,
and in relation to which the court should be especially slow to substitute its view for
that of the executive (see para 113 above, citing RJM para 57).
122. On the other side, I have accepted that, in contrast to the position in SG, the
claimants are able to pray in aid the best interests principle under article 3.1 of the
UNCRC. However, in that respect the extracts from the Parliamentary debates
quoted by Lord Wilson show that careful consideration was given, not only by the
executive, but also by Parliament, to the extent to which further exceptions should
be enacted, and in particular to the interests of the children potentially affected. I
agree with him that it has not been shown that the failure to enact further exemptions
involved any breach of that principle. My contrary conclusion on that issue in SG
was narrowly based on the deficiencies in the Secretary of State’s evidence on this
aspect (paras 110-112, 127-128), and has no relevance to the present appeals.
Overall I agree with Lord Wilson that the approach ultimately adopted by the
executive, with the support of Parliament, was not manifestly without reasonable
foundation, and that the appeals must accordingly be dismissed.
123. As a final comment, and without disrespect for the care and skill with which
the cases have been presented to the court, I observe that the dangers of departing
from the restrictive approach laid down by Lord Toulson in MA are amply
demonstrated by the experience of this appeal. We have been faced with detailed
submissions based on conflicting factual and statistical evidence, much of it
produced for the first time in this court. Some of this evidence has come in support
of submissions from interveners. Their experience of the practical implications of
the legal issues can be of great value, but the court must be careful to ensure that
such interventions do not lead to the introduction of new evidence which has not
been fully tested, and which cannot be properly tested within the limitations of this
court’s proper function. At times it has seemed as though the court were being
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invited to take on the task of a Parliamentary Select Committee, undertaking a
review of the policy and factual basis of the legislation. That is not our role.
LORD HODGE: (with whom Lord Hughes agrees)
124. I agree with Lord Wilson that the appeals should be dismissed for the reasons
which he gives. I wish to add only one qualification to my agreement and that relates
to the question of status. In this regard I share the doubts which Lord Carnwath
expresses on this issue in para 108 of his judgment.
125. I also agree with Lord Carnwath’s view on justification (the “MWRF test”)
in paras 110-118 of his judgment, which tallies with that of Lord Wilson. As Lord
Kerr states, the precise reason why the ECtHR adopted the MWRF test does not
apply to the domestic court. But it is open to a domestic court to adopt that test in
relation to socio-economic policy decisions of the executive in recognition of the
institutional constraints on and the constitutional role of the judiciary. That is what
both the House of Lords and the Supreme Court have done in the cases of R (RJM),
Humphreys, SG and MA, as Lord Carnwath demonstrates in his judgment.
126. For the purposes of these appeals I am content to assume that each of the
claimants has the required status to mount a challenge under article 14 of ECHR.
But this appeal, like the appeal which this court heard in R (Stott) v Secretary of
State for Justice [2018] UKSC 59; [2018] 3 WLR 1831, raises questions on the
boundaries of “other status” in article 14, a subject on which there is, as yet, little
clarity. Some may argue that the requirement of status is not an important hurdle for
a claimant to overcome and that the Convention requires the state to justify any
failure to treat differently people whose situation is relevantly different. But as
national rules on social security benefits are required to be expressed in broad terms
which will affect different people differently, the lack of clarity as to the entitlement
of groups and sub-groups to challenge is a mischief. I do not therefore wish to
endorse the view that each of the cohorts of claimants has the necessary status.
127. In these appeals, the DA appellants assert a status as lone parents of children
aged under two and as children aged under two of lone parents. The adult DS
appellants assert a status as either lone parents or, as a fall back, as lone parents with
children aged under five. The children who are DS appellants assert a status as
children of lone parents or, as a fall back, as children aged under five of lone parents.
Thus, the court faces the question whether lone parents of children of any age, lone
parents of children aged under five, lone parents with children aged under two, and
their respective children each enjoy a separate status under article 14.
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128. When one considers an arrangement which requires someone in a household
to work for a minimum number of hours per week in order to escape the benefit cap,
it is not difficult to see that a lone parent household is in a different situation from a
two parent household. Indeed, the government recognizes that difference by setting
a lower minimum number of hours of work per week for the lone parent household.
But, as Lord Wilson points out, there will be many within this cohort of lone parents
whose children are all of school age. It is, as he states (para 45), a simpler task for
the government to justify the requirement that a lone parent with children all of
school age should work at least 16 hours per week to escape the benefit cap than it
is to justify that requirement for lone parents with children under school age.
129. When children are under school age, a lone parent’s ability to work at least
16 hours per week is dependent on the availability of the support of others in child
care. Lone parents with babies and toddlers can be expected to have greater
difficulty in working those hours without such childcare support. But where does
one draw the line or lines? Is there not a sliding scale? The government’s rules on
the availability of financial support for childcare supports the view of the policy
director of Gingerbread: “the younger the child is when the parent is capped, the
harder it is for them to get into work” (see Lord Wilson’s judgment para 83 above).
But the age of the youngest child is not the only variable which influences how hard
it is for a lone parent to obtain work. The availability of part-time work, the
proximity of family or friends who can provide child care, and the availability and
funding of childcare facilities are equally important variables. Ill-health and other
adverse circumstances of the parent or children in a large family may militate against
a lone parent’s ability to work, regardless of the age of the youngest child.
130. Looking more broadly, the difficulty in escaping from the benefit cap is only
one feature of the cap. Other circumstances are also relevant to the burden which
the cap imposes on parents. As Sir Patrick Elias stated in his leading judgment in
the Court of Appeal (para 105), there is no linear relationship between the age of the
children and the financial impact on families caused by the cap. The greater the
number of dependent children of whatever age there is within a household, the more
mouths there are to feed and larger is the accommodation that the family needs.
131. I am left with some doubt as to whether the age of a lone parent’s youngest
child is the basis for giving the parent and child a status for the purpose of article 14
in the circumstances of this challenge. The people with the strongest case for having
their circumstances recognised as giving rise to a status, it seems to me, are the DA
cohort of lone parents with children aged under two and those children, having
regard both to the degree of dependence of the child and the manner in which the
government recognises that dependence both in the non-provision of free child care
to most two year olds (para 28 above) and in the conditions set for the receipt of
income support which are graduated by reference to the age of the child (para 30
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above). But I am content to leave the question of status to future dialogue with the
ECtHR.
LADY HALE: (dissenting)
132. It is indeed regrettable that there is a variety of opinions among the judges
who have considered these cases and accordingly that it has taken this court so long
to produce its judgment: regrettable but not at all surprising. These are cases about
equality and equality is the most complicated and difficult of all the fundamental
rights, even without the delicate context of entitlement to welfare benefits. A
professional lifetime of struggling with equality issues has persuaded me that some
degree of complexity is inevitable and we should not apologise for it. The law may
be complicated and sometimes difficult to apply but for the most part it does not
lack clarity. There is no difference of opinion between Lord Wilson and me as to the
legal principles applicable: we disagree only on the application of the principle of
justification to the facts of these cases.
133. The delicacy arises because these are cases about equality in an area, not
principally of social policy, but of economic policy. Constitutionally, economic
policies are decided by those organs of government which are directly accountable
to the people. The courts cannot make those decisions for them. But that does not
mean that the courts have no role to play. In a constitution which respects and
protects fundamental rights, it is the role of the courts to protect individuals from
unjustified discrimination in the enjoyment of those fundamental rights. There are
no “no go” areas. The courts might very well have declared that denying certain
widows’ benefits to widowers was incompatible with the Convention rights, had the
Strasbourg court not got there first: see Willis v United Kingdom (2002) 35 EHRR
547. More recently, this court has declared the denial of widowed parent’s allowance
to a surviving parent who was not married to the deceased parent of their children
incompatible with the Convention rights: see In re McLaughlin [2018] 1 WLR 4250.
But those examples are more clear-cut than these. Nor do they mean that the courts
will not recognise that the government is both constitutionally and institutionally
more competent than the courts to make the delicate judgments involved: see, for
example, R (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR
1681.
134. The argument before us now is very different from the argument which was
before us in R (SG) v Secretary of State for Work and Pensions [2016] 1 WLR 1449,
although that too concerned the benefit cap, albeit in its original and less draconian
version. In SG the complaint was of indirect discrimination against lone parent
women. It was indirect because the benefit cap applied equally to all lone parents,
men and women. But the government acknowledged that it had a disproportionate
impact upon women because the overwhelming majority of lone parents are women.
Page 48
The debate was about whether it could be justified and about the relevance of the
United Kingdom’s international obligations under the United Nations Convention
on the Rights of the Child (UNCRC) to that question. A majority of this court
concluded that the government had not complied with its obligation, under article
3.1 of UNCRC, to treat the best interests of the children concerned as a primary
consideration. But a majority also concluded that this was not relevant to whether
the indirect discrimination against women was justified. Although I disagreed with
that conclusion, I found it completely understandable. The children of lone parents
were hit equally hard by the benefit cap whether their parents were men or women.
The relevance of their interests to the alleged sex discrimination was therefore
questionable. Indeed, as I had said in Humphreys v Revenue and Customs Comrs
[2012] 1 WLR 1545, a case alleging indirect sex discrimination in the rules
governing entitlement to child benefit, which did not allow the benefit to be split
between shared carers (para 20):
“The reality is that … the complaint would be exactly the same
if it did not discriminate between the sexes. Mothers who share
the care of their children for a shorter period each week while
living on subsistence level benefits have exactly the same
problem. The real object of the complaint is the discrimination
between majority and minority shared carers.”
The reason why I disagreed with the majority in SG was that, in indirect
discrimination, it is the measure itself, rather than its discriminatory impact, which
has to be justified. (This is the case in domestic law and I see no reason why it should
not also be the case in Convention law. If the discrimination is direct, of course, it
is the discriminatory impact which has to be justified.) The best interests of the
children affected were, in my view, undoubtedly relevant to the justification for the
measure itself. But I agree with McCombe LJ, in the DA case, that SG does not give
us the answer to the very different cases we now have to consider.
135. In these cases, the basic complaints are of discrimination between, on the one
hand, lone parents and their children and, on the other hand, dual parents and their
children. In DA, it is narrowed down to a complaint of discrimination against lone
parents with a child or children under the age of two and their children, whether
compared with dual parents with children under two or other lone parents. Both
complaints are easier to grasp than the complaints in SG.
136. Article 14 of the European Convention on Human Rights (ECHR), as is well
known, provides:
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“The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a
national minority, property, birth or other status.”
In deciding complaints under article 14, four questions arise: (i) Does the subject
matter of the complaint fall within the ambit of one of the substantive Convention
rights? (ii) Does the ground upon which the complainants have been treated
differently from others constitute a “status”? (iii) Have they been treated differently
from other people not sharing that status who are similarly situated or, alternatively,
have they been treated in the same way as other people not sharing that status whose
situation is relevantly different from theirs? (iv) Does that difference or similarity in
treatment have an objective and reasonable justification, in other words, does it
pursue a legitimate aim and do the means employed bear “a reasonable relationship
of proportionality” to the aims sought to be realised (see Stec v United Kingdom
(2006) 43 EHRR 1017, para 51)?
Ambit
137. There is nowadays no doubt that entitlement to state benefits, even noncontributory means-tested benefits, is property for the purpose of article 1 of the
First Protocol (A1P1), which protects property rights. Indeed, the benefit cap can be
seen as a species of deprivation of property, as it takes away rights which the
claimants would otherwise have. But, as Lord Wilson explains (para 36), benefits
which enable a family to enjoy “a home life underpinned by a degree of stability,
practical as well as emotional, and thus the financial resources adequate to meet
basic needs, in particular for accommodation, warmth, food and clothing” are clearly
one of the ways (“modalities”) whereby the state manifests its respect for family life
and therefore fall within the ambit of article 8 (see Petrovic v Austria (2001) 33
EHRR 14 and Okpisz v Germany (2006) 42 EHRR 32). That we are concerned here,
not only with the right to property, but also with the right to respect for family life
is clearly relevant to the issue of justification.
Status
138. The government’s argument that, because the claimants are women, who
already have a status under article 14, they should not seek to shoehorn themselves
into some other status (see para 39 above) is clearly unsustainable. Men also have a
status under article 14, but they often qualify for some other status, such as being
married or unmarried (In re G (Adoption: Unmarried Couple [2009] 1 AC 173),
disabled or not disabled (R (RJM) v Secretary of State for Work and Pensions [2009]
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1 AC 311) or serving an extended sentence of imprisonment or some other sentence
(R (Stott) v Secretary of State for Justice [2018] 3 WLR 1831). In any event, the DA
claimants are not complaining of discrimination because they are women. A male
lone parent could have brought exactly the same complaint. And that also applies to
the DS claimants (although they also revive the indirect sex discrimination claim in
SG). Lone parent is clearly a status within the meaning of article 14. And I agree
with Lord Wilson and Lord Kerr that it can be sub-divided according to the ages of
the children, and in particular that having a child or children under compulsory
school age is obviously a status for this purpose, just as being a disabled child who
needed more than 84 days’ hospital in-patient care was a status in Mathieson v
Secretary of State for Work and Pensions [2015] 1 WLR 3250 and indeed being a
particular type of prisoner was a status in R (Stott) v Secretary of State for Justice,
above.
Differences or similarities in treatment
139. I agree with Lord Wilson and Lord Kerr that the natural way to formulate the
DA complaint is that these lone parents, and their children, should have been treated
differently from other lone parents, and from dual parent families, because their
situation is relevantly different from the situation of other families who are subject
to the benefit cap: that is, discrimination within the meaning of Thlimmenos v
Greece (2000) 31 EHRR 12.
140. I also agree that the natural way to formulate the DS complaint is of
Thlimmenos-type discrimination, whether it extends to lone parents of children of
up to school-leaving age or only to lone parents of children under compulsory school
age. As already explained, I think that any attempt to formulate the DS complaint as
one of indirect discrimination against women would run into the same difficulties
as were encountered in SG.
141. In both cases, the natural comparator is a dual parent family with children of
the same age. But this is complicated because dual parent families are, in at least
two respects, less favourably treated than lone parent families: they are subject to
the same cap on their benefits although they have one more adult mouth to feed; and
they can only escape if between them they work outside the home for a total of 24
hours a week. Although this does not necessarily present insuperable problems,
these do not arise if the DS complaints are limited to those with a child or children
under five. Then both the DA and the DS claimants can compare themselves with
lone parents who only have older children.
142. It can immediately be seen that the situation of these claimants is relevantly
very different from the situation of lone parents with children of school age. Lord
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Wilson has summarised this with great clarity in para 51 above. I would lay
particular stress in what he says at para 51(a), which is worth repeating:
“that, in the case of a lone parent of a child below school age,
in particular of a child below the age of two, it is contrary to
the interests both of herself, of her child and of the family as a
whole that she should in effect be constrained to work also
outside the home.” (My emphasis)
143. It is dangerous for a judge to indulge in moral indignation but few mothers
(and indeed few lone fathers) who have chosen to work also outside the home while
their children are very young can have escaped being made to feel guilty that they
may have been harming their children’s healthy development by doing so. We were
brought up on John Bowlby’s classic work, Child Care and the Growth of Love, the
foundation of modern attachment theory. Children need to form stable and healthy
attachments early in life in order to be able to lead healthy lives and form stable
attachments of their own in the future. The foundation for this is stable, consistent
and loving care from a parent or parents (or parent-substitutes) who have bonded
early with the child. No-one who has sat as a judge in the family courts can have
escaped hearing constant evidence about the risks of significant harm to children
who are denied such healthy attachments.
144. This is not to say that children cannot also thrive if their parents do go out to
work. Such work may bring psychological as well as financial benefits to their
parents, as well as to society, and this may also benefit their children. But for this
the children need good, stable and consistent alternative care arrangements,
preferably in familiar surroundings: children develop attachments to places as well
as people. Such arrangements are in short supply and very expensive. The
availability of help towards the cost of up to 15 hours’ child care for some of these
children does not necessarily fit this bill. The government itself has recognised that
parents of very young children should not be obliged to seek work outside the home,
both by the conditions they have set for eligibility for state benefits and by the limits
they have set for free child care. The psychological risks to children whose lone
parents are obliged to work outside the home in order that their children may have
enough to live on, whether or not this is in their children’s best interests, have to be
set against the psychological risks to children who grow up in benefit-claiming
families, risks to which the government has attached so much importance.
145. Of course, those risks will be less if the parent can find suitable work as well
as suitable child care. She may be lucky enough, for example, to find some evening
shifts in a very local supermarket and have a willing grandparent or neighbour to
look after the children while she does so. But any lone parent who has small children
will face considerable difficulties in finding suitable work which will fit in with her
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child care arrangements and also, in many cases, with her commitments to her other
children.
Justification
146. The one matter on which the law may be open to debate relates to the standard
by which the government’s justification for discriminatory measures such as this is
to be judged. In Humphreys v Revenue and Customs Comrs [2012] 1 WLR 1545,
this court, in a judgment of mine with which the other Justices agreed, adopted the
“manifestly without reasonable foundation” standard derived from the Strasbourg
Grand Chamber decision in Stec v United Kingdom (2006) 43 EHRR 47, albeit with
the qualification that this did not mean that the justification advanced should escape
“careful scrutiny” (para 22). But that test was not disputed in Humphreys, any more
than it had been in R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC
311.
147. However, Lord Kerr is surely right to question whether the test which the
Strasbourg court will apply in matters of socio-economic policy should also be
applied by a domestic court. The Strasbourg court applies that test, not because it is
necessarily the proper test of proportionality in this area, but because it will accord
a “wide margin of appreciation” to the “national authorities” in deciding what is in
the public interest on social or economic grounds. The national authorities are better
able to judge this because of their “direct knowledge of their society and its needs”
(see Stec, para 52). It does not follow that national courts should accord a similarly
wide discretion to national governments (or even Parliaments). The margin of
appreciation is a concept applied by the Strasbourg court as part of the doctrine of
subsidiarity. The standard by which national courts should judge the measures taken
by national governments is a matter for their own constitutional arrangements.
148. Not only that, it has been noted that, in Stec, the Grand Chamber cited James
v United Kingdom (1986) 8 EHRR 123 as authority for its “manifestly without
reasonable foundation” standard. But in James, it is fairly clear that the Strasbourg
court drew a distinction between two questions: first, was the measure “in the public
interest” for the purpose of A1P1 (or, in article 8 terms, does it pursue a legitimate
aim); and second, was there a reasonable relationship of proportionality between the
means employed and the aim sought to be realised. This latter requirement had been
expressed in Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, at para 69, as
“whether a fair balance was struck between the demands of the general interest of
the community and the requirements of the protection of the individual’s
fundamental rights” (see James, para 50). The “manifestly without reasonable
foundation” standard was applied to the first but not the second question.
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149. When discussing (albeit strictly obiter) whether the imposition of charges for
NHS treatment for asbestos related diseases caused by employers’ breach of duty
was compatible with the A1P1 rights of employers and their insurers, in In re
Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] AC 1016, para
51, Lord Mance noted that our domestic law had also drawn a distinction between
whether the aims are legitimate and whether a fair balance had been struck. Both
Lord Hope and Lord Reed had adopted this approach in AXA General Insurance Ltd
v HM Advocate [2012] 1 AC 868. Even in relation to the “fair balance” question, of
course, “domestic courts cannot act as primary decision makers and principles of
institutional competence and respect indicate that they must attach appropriate
weight to the informed legislative choices at each stage of the Convention analysis:
see the AXA case, … para 131” (Asbestos, para 54).
150. I pause only to note that if Lord Hope, Lord Mance and Lord Reed were
correct in separating the issues of legitimate aim and fair balance in A1P1 cases, and
applying a different standard to each, it would be wrong to apply a different
approach to those same questions when they come up in the context of
discrimination in the enjoyment of the right to respect for family life. The principles
applicable when, say, insurance companies challenge interferences with their
property rights should not be more favourable to them than the principles applicable
when children challenge discrimination in their right to respect for their family lives.
151. In R (MA) v Secretary of State for Work and Pensions [2016] 1 WLR 4550,
the so-called “bedroom tax” case, a wholesale attack was mounted upon the
“manifestly without reasonable foundation” test. The attack was rejected in favour
of the continued application of the Humphreys approach (para 38). There was no
discussion of a more nuanced approach along the lines suggested by Lord Mance in
Asbestos. Even applying Humphreys the removal of the spare room subsidy was
found to be without justification in two respects. I agreed with that judgment (para
81).
152. It seems to me that the court may well have to return to this difficult question
in another context at some point in the future. But this is neither the case nor the
context to do so. Nor is it necessary. The government has put forward three aims for
the revised benefit cap: (i) fairness as between those in work and those on benefits,
in that those in work should always be better off than those who are not, and with it
the maintenance of public confidence in the benefits system; (ii) fiscal savings; and
(iii) incentivising work outside the home. These are indeed legitimate aims,
whatever the standard by which they are judged.
153. However, it is also an essential element in justification that the measures
adopted should be rationally related to their legitimate aims (see, among many, Lord
Reed in Bank Mellat v HM Treasury (No 2) [2014] AC 700, para 76). This is another
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way of putting the requirement in European Union law that a measure be “suitable”
to achieving its aims. It seems to me that it has been comprehensively demonstrated
by the mass of evidence before the trial judge in DA, Collins J, and summarised by
Lord Wilson and Lord Kerr, that the revised benefit cap is not suitable to achieving
any of its declared aims. It does not achieve fairness as between those in work and
those on benefits, because those in work will always be better off than those who
are not. The fiscal savings are very small and liable to be offset by increased costs
in other budgets. These include discretionary housing payments and the cost of
housing and rehousing families made homeless as a result of the cap, as well as the
costs resulting from the harm done to children by the disruption to their lives and
education, as well as by living in poverty, in their early years: the fact that these
costs will mainly fall upon local authorities rather than central government makes
no difference in principle. There will be other costs if the lone parent is driven to
take work outside the home, but it has not been shown that the benefit cap has this
effect on this particular group of lone parents.
154. But even if it could be shown that the benefit cap does have some effect in
fiscal savings overall and inducing lone parents of young children to work outside
the home, the question of a fair balance between the benefits to the community and
the detriment to the children and their parents would still arise. The government is
under an obligation in international law to treat the best interests of the children
concerned as “a first priority”. It has been held on several occasions that whether it
has fulfilled that obligation is relevant to whether it has acted compatibly with the
Convention rights of the children concerned: see ZH (Tanzania) v Secretary of State
for the Home Department [2011] 2 AC 166, H (H) v Deputy Prosecutor of the Italian
Republic, Genoa [2013] 1 AC 338, Zoumbas v Secretary of State for the Home
Department [2013] 1 WLR 3690.
155. In showing that a fair balance has been struck, it is not enough for the
government to show that it was aware of the concerns raised by many in and outside
Parliament about the effect of the revised benefit cap on the welfare of children in
lone parent families. Awareness is not the same as taking the best interests of those
children seriously into account. Even taking them into account is not the same as
giving them first priority which is an intrinsic part of striking a fair balance where
children’s rights are concerned.
156. Striking a fair balance would have set the very limited benefits to the public
interest against the damage done to the family lives of young children and their lone
parents if either their parents are forced to work outside the home in order to have
enough for themselves and their children to live on or they are unable or unwilling
to work outside the home and are thus forced to attempt to live on less than the state
has decided that they need. In particular, there is little or no evidence that proper
account has been taken of the risks of psychological harm to very young children if
they are separated from their primary carers, or the multiple risks to the health,
Page 55
development and life chances of children living in poverty in their early years. There
is little or no evidence that these very real and well-documented risks have been
fairly balanced against the much more speculative risks of spending those very early
years in a household dependent on welfare benefits – we are talking here of children
who are below compulsory school age, whose understanding of where the money to
live on comes from will be limited, although of course there may be older children
in the same household. Once all the children are of school age, there will be ample
incentive for their parents to try and find work outside the home if they can.
157. Therefore, with the greatest respect for the institutional competence of the
government as primary decision-maker in these matters, this seems to me a clear
case where the weight of the evidence shows that a fair balance has not been struck
between the interests of the community and the interests of the children concerned
and their parents. I would therefore allow the appeals and make the declaration made
by Collins J in DA, amended to include families with children under compulsory
school age in DS, as follows:
“The Housing Benefit Regulations 2006, as amended by the
Benefit Cap (Housing Benefit and Universal Credit)
(Amendment) Regulations 2016, are unlawful insofar as they
apply to lone parents with a child or children under the age of
five, in that:
a. They involve unjustified discrimination against
lone parents of children under the age of five, contrary
to article 14 of the ECHR read with (i) article 1 of the
First Protocol and (ii) article 8 of the ECHR;
b. They involve unjustified discrimination against
children under the age of five with lone parents, contrary
to article 14 of the ECHR read with article 8 of the
ECHR in the light of article 3 of the United Nations
Convention on the Rights of the Child.”
LORD KERR: (dissenting)
158. There is much in the judgment of Lord Wilson with which I completely agree.
Indeed, the areas of disagreement between us, although important, are relatively few.
It is right that I should express my admiration for his judgment and my indebtedness
to Lord Wilson for his distillation of the many complex issues that arise in this
difficult appeal.
Page 56
159. In particular, I agree with Lord Wilson, for the reasons which he gives in
paras 35 and 36 of his judgment, that the appellants’ claims fall within the ambit of
article 8 of ECHR; that all the appellants have the requisite status to advance claims
under article 14 – paras 38 and 39; and that the natural way to analyse the complaints
of the DA appellants is as discrimination of the type explained in the Thlimmenos
case – para 40. I also agree that, in relation to the DS appellants, the court should
address the fall-back complaint (ie that relating to lone parents of children under
five) and should again do so as a Thlimmenos complaint – paras 44 and 45.
160. In paras 46 and 47 of his judgment, Lord Wilson explains why he considers
that the natural comparators to the cohorts whom the appellants represent are all
others subject to the revised benefit cap. I agree with his analysis, and I also agree
with his conclusion that it is open to the appellants, in advancing the argument that
there has been an objectionable similarity of treatment of the DA and DS cohorts
and all who have been subject to the cap, to draw particular attention to the marked
difference between their situation and those in sub-groups (a) and (b), namely dualcare parents with a child under two or under five, and lone parents without a child
under two or under five. Treating the DA and DS cohorts in precisely the same way
as the members of those groups when there are significant differences in their
respective circumstances sounds directly on the issue of justification.
161. It follows from what I have said in the previous paragraph that I agree with
Lord Wilson that there is clear prima facie evidence that the appellants are in a
relevantly different situation from others who are subject to the revised benefit cap
– para 51 of his judgment. The factors identified in sub-paras (e) and (f) of para 51
are of especial significance.
Justification
162. As Lord Wilson has pointed out in para 53 of his judgment, the authoritative
statement on what requires to be justified is found in the speech of Lord Bingham in
A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68,
para 68. What requires to be justified is the difference in treatment between one
group and another. That requirement translates in the present case to justification of
the same treatment to two disparate groups where their circumstances differ to the
extent that they plainly call for differential treatment. Specifically, what must be
justified here is the decision not to make provision for exemption of the DA and DS
cohorts by amending the 2006 Regulations.
163. In para 55, Lord Wilson adverts to “two different paths” which this court has
followed in its pursuit of the proper test against which justification is to be measured
where what is involved is an economic measure “introduced by the democratically
Page 57
empowered arms of the state.” Lord Wilson considers that this “duality” has been
unhelpful and expresses regret for having contributed to it. In my view, there is no
reason for regret and, while the divergence of opinion on this issue might be
considered unfortunate, it is, I am afraid, unavoidable and cannot be swept away.
164. The divergence centres on the question of the use of the formula commonly
known as “manifestly without reasonable foundation”, when examining the
proportionality of measures devised by government or the legislature in the fields of
economic or social policy. This principle, if it is appropriate to describe it as such,
is the creature of the European Court of Human Rights (ECtHR). Its provenance is
the margin of appreciation which ECtHR accords to decisions of national authorities
in the fields of economic and social policy particularly. Thus, as Lord Wilson
observed in para 58, in the cases of James and Carson the Strasbourg court held that
respect should be shown to the national legislature’s decision on matters of public
interest when devising economic or social measures unless it was manifestly without
reasonable foundation. It is significant that, as Lord Wilson explained, what he
described as this more benign approach “flowed from the margin of appreciation”.
The manifestly without reasonable foundation formula should be recognised as a
fundamental element of the margin of appreciation doctrine, therefore.
165. This much is clear from the decision of the Grand Chamber in Stec v United
Kingdom (2006) 43 EHRR 47. In that case ECtHR endorsed the manifestly without
reasonable foundation approach in assessing whether a measure of economic policy,
said to offend article 14 of the Convention, was justified. But this was expressly
linked to the application of the margin of appreciation principle. At para 52 the court
explained the reason for its reluctance to interfere in this way:
“Because of their direct knowledge of their society and its
needs, the national authorities are in principle better placed
than the international judge to appreciate what is in the public
interest on social or economic grounds …”
166. The interconnectedness between the manifestly without reasonable
foundation rubric and the margin of appreciation doctrine is therefore clear. On that
account, a failure to acknowledge that rubric as an element or sub-set of the margin
of appreciation principle can lead to an unwitting importation of a quasi-margin of
appreciation approach into the national courts’ consideration of the proportionality
of a measure. This is impermissible even in the fields of economic or social policy.
There may have been a tendency to do precisely that, however, in some earlier
decisions of this court. Thus, for instance, in MA [2016] UKSC 58; [2016] 1 WLR
4550, para 32, Lord Toulson adopted for the purposes of national courts’ review the
standard prescribed by Strasbourg when he said:
Page 58
“The fundamental reason for applying the manifestly without
reasonable foundation test in cases about inequality in welfare
systems was given by the Grand Chamber of the European
Court of Human Rights in Stec, para 52. Choices about welfare
systems involve policy decisions on economic and social
matters which are pre-eminently matters for national
authorities.”
167. But there is plenty of authority which acknowledges that measures falling
within the United Kingdom’s margin of appreciation, when viewed from the supranational perspective of ECtHR, will not necessarily survive judicial scrutiny on the
national stage. In In re Recovery of Medical Costs for Asbestos Diseases (Wales)
Bill [2015] UKSC 3; [2015] AC 1016, para 54 Lord Mance said:
“At the domestic level, the margin of appreciation is not
applicable, and the domestic court is not under the same
disadvantages of physical and cultural distance as an
international court. The fact that a measure is within a national
legislature’s margin of appreciation is not conclusive of
proportionality when a national court is examining a measure
at the national level: In re G (Adoption: Unmarried Couple)
[2009] AC 173; R (Nicklinson) v Ministry of Justice (CNK
Alliance Ltd intervening) [2015] AC 675, per Lord Neuberger
PSC at p 781, para 71, Lord Mance JSC at p 805, para 163 and
Lord Sumption JSC at pp 833-834, para 230. However,
domestic courts cannot act as primary decision makers, and
principles of institutional competence and respect indicate that
they must attach appropriate weight to informed legislative
choices at each stage in the Convention analysis: see the AXA
case, para 131, per Lord Reed JSC, and R (Huitson) v Revenue
and Customs Comrs [2012] QB 489, para 85. But again, and in
particular at the fourth stage, when all relevant interests fall to
be evaluated, the domestic court may have an especially
significant role.”
168. Lord Neuberger picked up this theme in Nicklinson [2014] UKSC 38; [2015]
AC 657 where, at para 74, he said:
“In an interesting passage in para 229 below, Lord Sumption
suggests that, where an issue has been held by the Strasbourg
court to be within the margin of appreciation, the extent to
which it is appropriate for a UK court to consider for itself
whether the Convention is infringed by the domestic law may
Page 59
depend on the reason why the Strasbourg court has concluded
that the issue is within the margin. I agree that the reasoning of
the Strasbourg court must be taken into account and accorded
respect by a national court when considering whether the
national law infringes the Convention domestically, in a case
which is within the margin of appreciation – just as in any other
case as section 2(1)(a) of the 1998 Act recognises. However,
both the terms of the 1998 Act (in particular sections 2(1) and
4) and the principle of subsidiarity (as expounded for instance
in Greens and MT v United Kingdom [2010] ECHR 710, para
113) require United Kingdom judges ultimately to form their
own view as to whether or not there is an infringement of
Convention right for domestic purposes.” (Emphasis added)
169. The importation of the test “manifestly without reasonable foundation” to all
aspects of the national court’s consideration of proportionality imperils the proper
discharge of its duty. This was a technique devised by the Strasbourg court in order
to promote the proper application of the margin of appreciation. In my view, it has
no place in the national court’s consideration of whether a measure which interferes
with a Convention right is proportionate, since, as Lord Mance observed in the In re
Recovery of Medical Costs case, at the domestic level, the margin of appreciation is
not applicable. Indeed, in the national setting, this court, in a number of cases, has
articulated an approach to examination of the proportionality of the interference
where consideration of the question whether it was “manifestly without reasonable
foundation” is conspicuously absent.
170. As Lord Reed said in Bank Mellat (No 1) [2013] UKSC 39; [2014] AC 700,
pp 789-790, para 71:
“One important factor in relation to the Convention is that the
Strasbourg court recognises that it may be less well placed than
a national court to decide whether an appropriate balance has
been struck in the particular national context. For that reason,
in the Convention case law the principle of proportionality is
indissolubly linked to the concept of the margin of
appreciation. That concept does not apply in the same way at
the national level, where the degree of restraint practised by
courts in applying the principle of proportionality, and the
extent to which they will respect the judgment of the primary
decision maker, will depend upon the context, and will in part
reflect national traditions and institutional culture. For these
reasons, the approach adopted to proportionality at the national
level cannot simply mirror that of the Strasbourg court.”
(Emphasis added)
Page 60
171. This is an important statement. It emphasises that not only is the technique
adopted by the national court to the question of the proportionality of a measure
different from that of the Strasbourg court but the basis on which there should be
reticence on the part of a national court to interfere is also different. In Strasbourg it
is recognised that the court may be “less well placed than a national court to decide
whether an appropriate balance has been struck”. By contrast, the national court may
consider itself constrained by “national traditions and institutional culture”. One can
quite see how the concept of ‘manifestly without reasonable foundation’ assists in
the examination by the Strasbourg court of the proportionality of a measure. Very
different considerations arise when the national court examines proportionality.
172. The steps in the proportionality analysis at the national level are well settled.
When considering whether legislative measures which interfere with a Convention
right satisfy the requirements of proportionality, “four questions generally arise”, as
Lord Wilson explained in R (Aguilar Quila) v Secretary of State for the Home
Department [2012] 1 AC 621, para 45. These were discussed by Lord Reed in Bank
Mellat at paras 20ff:
“(a) is the legislative objective sufficiently important to
justify limiting a fundamental right?; (b) are the measures
which have been designed to meet it rationally connected to it?;
(c) are they no more than are necessary to accomplish it?; and
(d) do they strike a fair balance between the rights of the
individual and the interests of the community?”
173. Has the manifestly without reasonable foundation formula any part to play in
the answer to be given to any of these questions? In R (SG (previously JS)) v
Secretary of State for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449,
paras 209 and 210, Lady Hale addressed this issue:
“209. The references cited for the ‘manifestly without
reasonable foundation’ test were James v United Kingdom
(1986) 8 EHRR 123, para 46, and National & Provincial
Building Society v United Kingdom (1997) 25 EHRR 127, para
80, both cases complaining of a violation of article 1 of the First
Protocol. In AXA General Insurance Ltd v HM Advocate [2011]
UKSC 46; [2012] 1 AC 868, both Lord Hope of Craighead
DPSC at para 31, and Lord Reed JSC at para 124, treated this
test as directed towards whether the measure is ‘in the public
interest’, in other words to whether it has a legitimate aim. They
dealt separately with whether the interference with property
rights was proportionate. They relied upon cases such as
Pressos Compania Naviera SA v Belgium (1995) 21 EHRR
Page 61
301, para 38, where the Strasbourg court appears to have
regarded this as a separate question:
‘An interference with the peaceful enjoyment of
possessions must strike a ‘fair balance’ between the
demands of the general interest of the community and
the requirements of the protection of the individual’s
fundamental rights. … In particular, there must be a
reasonable relationship of proportionality between the
means employed and the aim sought to be realised by
any measure depriving a person of his possessions.’ (p
75)
(See also In re Recovery of Medical Costs for Asbestos
Diseases (Wales) Bill [2015] 2 WLR 481, para 52). In this case,
the complaint is of discrimination in interfering with the
peaceful enjoyment of possessions rather than of deprivation of
possessions as such. Nevertheless, the benefit cap does come
close to a deprivation of possessions, given that it removes, by
reference to a fixed limit, benefit to which the claimants would
otherwise be entitled by virtue of their needs and, more
importantly, the needs of their children.
210. When it comes to justifying the discriminatory impact
of an interference with property rights, a distinction might
similarly be drawn between the aims of the interference and the
proportionality of the discriminatory means employed.
However, it has been accepted throughout this case that the
‘manifestly without reasonable foundation’ test applies to both
parts of the analysis; but that, as this court said in Humphreys
v Revenue and Customs Comrs [2012] 1 WLR 1545, para 22,
‘the fact that the test is less stringent than the ‘weighty reasons’
normally required to justify sex discrimination does not mean
that the justifications put forward for the rule should escape
careful scrutiny’.”
174. I was one of those who accepted in the SG case that the manifestly without
reasonable foundation test applied to all of the stages in the proportionality analysis.
I was wrong to have done so. In the In re Recovery of Medical Costs case Lord
Mance in para 46 had drawn a distinction between the first three stages of the
proportionality assessment and the final stage:
Page 62
“Initially, in Handyside v United Kingdom (1976) 1 EHRR 737,
para 62, followed in Marckx v Belgium (1979) 2 EHRR 330,
para 63, the court said that the state was the sole judge of
necessity for the purposes of deciding whether a deprivation of
property was ‘in the public interest’. That no longer represents
the position on any view. But the Counsel General for Wales
and Mr Fordham disagree as to the current position. The
Counsel General submits that the court will at each of the four
stages of the analysis ‘respect the legislature’s judgment as to
what is ‘in the public interest’ unless that judgment be
manifestly without reasonable foundation’: James v United
Kingdom (1986) 8 EHRR 123, para 46. Mr Fordham on the
other hand submits that this passage was or, at least in
subsequent authority, has been restricted in application to the
first or at all events the first to third stages. In my opinion, Mr
Fordham is basically correct on this issue, at least as regards
the fourth stage which presently matters, although that does not
mean that significant weight may not or should not be given to
the particular legislative choice even at the fourth stage.”
175. At para 51 Lord Mance referred to the Axa case and pointed out that both
Lord Hope and Lord Reed had treated the questions of ‘legitimate aim’ and whether
the measure was proportionate separately. The question of whether the measure
pursued a legitimate aim was to be determined on the basis that it should be
considered to have done so unless the claim that it did was manifestly unreasonable.
But in relation to proportionality, as Lord Mance observed, Lord Hope applied the
fair balance test, citing Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35 and
Pressos Compania Naviera SA v Belgium (1995) 21 EHRR 301.
176. It is clear from this that, even in the supra-national context of Strasbourg
review, a distinction is to be drawn between, on the one hand, the pursuit of a
legitimate aim for the measure and, on the other, the balancing of the interests of the
state against the impact which a measure interfering with a Convention right has on
those affected by it. The inaptness of applying the manifestly without reasonable
foundation standard when the matter of where the balance lies is being considered
by a national court is all the more obvious.
177. I have concluded, therefore, that, certainly so far as concerns the final stage
in the proportionality analysis, the manifestly without reasonable foundation
standard should not be applied. Quite apart from the imperative provided by the
authorities, I consider that to impose on the appellants the obligation of showing that
a measure is manifestly without reasonable foundation is objectionable for two
reasons: firstly, it requires proof of a negative; secondly, and more importantly,
much, if not all, of the material on which a judgment as to whether there is a
Page 63
reasonable foundation for the measure will customarily be in the hands of the
decision-maker and not readily accessible to the person who seeks to challenge the
proportionality of the measure which interferes with their Convention rights. The
proper test to apply in relation to the final stage of the proportionality assessment is
whether the government has established that there is a reasonable foundation for its
conclusion that a fair balance has been struck.
UNCRC
178. In para 67 of his judgment, Lord Wilson says that a move is afoot, as
exemplified by observations made by me in the SG case, for UK courts to treat the
UNCRC as part of our domestic law. So far as I am aware, the statements that I
made there have not been taken up by any court and I make clear that, for the
purposes of this case, I do not rely on the view that I there expressed, nor do I wish
to reopen a debate on that issue. I am content to adopt Lord Wilson’s approach to
the significance of UNCRC in the resolution of this case. In particular, I agree with
his description (in para 68) of the elements of the concept of the “best interests” of
the child in article 3.1. As Lord Wilson says, authoritative guidance is to be found
in para 6 of General Comment No 14 (2013) of the UN Committee on the Rights of
the Child. This was recognised by Lord Carnwath in the SG case and endorsed by
this court in the Mathieson case. Lord Wilson has suggested, and I agree, that the
concept has three dimensions. The most important of these, so far as concerns the
present case, is the third, namely, that, whenever a decision is to be made that will
affect an identified group of children, the decision-making process must include an
evaluation of the possible impact of the decision on them.
179. That obligation, when allied to the duty of the government to reach a decision
which is proportionate, according to the principles earlier discussed, means that the
respondent must assess the impact on the children in a way that balances their
interests against the interests of the community. It must, moreover, be satisfied that
the decision strikes a fair balance and must be in a position, when challenged, to
establish that it has a reasonable foundation.
180. The provisions in articles 26 and 27 of UNCRC, set out by Lord Wilson in
para 70 of his judgment, provide an essential backdrop to that exercise. Thus, the
state’s duty is to take necessary measures to ensure that children’s right to social
security benefits is fully realised; to recognise children’s entitlement to an adequate
standard of living; and to take measures to assist parents to implement the right to a
proper standard of living, particularly with regard to nutrition, clothing and housing.
181. Even if these provisions are not directly binding on the government (which
is the premise on which I am prepared to proceed in the present case), they are
Page 64
central to the judgment which the state must make in introducing social security
measures which will affect the living conditions of children. Moreover, they provide
an indispensable yardstick against which the proportionality of the measures under
attack in this appeal falls to be examined.
182. For the reasons given by Lord Wilson in paras 75 and 76, the government
cannot assert that the measures under attack are not directed at children. And I agree
with his conclusion in para 78 that the interests of the lone parents in the present
appeals are indistinguishable from the interests of their children below school age.
The issue which is then starkly exposed as critical to the outcome of this appeal is
the effect of article 3.1 on the proportionality of the government’s decision not to
exempt from the revised benefit cap the cohorts whom the appellants represent.
183. I say “the effect of article 3.1 on proportionality” advisedly. Lord Wilson has
carried out (in paras 81-86) a comprehensive review of the Parliamentary materials
and other policy documents which disclose the background to the government’s
decision and its objectives. I have nothing to add to that review. Where I part
company with Lord Wilson, however, is in his concentration on the question
whether the government has acted in breach of article 3 of UNCRC.
184. Lord Wilson concludes “by a narrow margin” that the government did not
breach article 3.1 by its refusal to amend the 2006 Regulations so as to exempt the
appellant cohorts from the revised cap. As I understand his judgment, largely on that
account, he considers that the appeal must be dismissed. In a telling sentence in para
87 he says:
“This court must impose on itself the discipline not, from its
limited perspective, to address whether the government’s
evaluation of its impact was questionable; nor whether its
assessment of the best interests of young children was
unbalanced in favour of perceived long-term advantages for
them at the expense of obvious short-term privation.”
185. I do not agree that the questionability of the government’s decision or its
avowed lack of balance should not be addressed by this court. Conclusions on those
matters will not – at least, not necessarily – be determinative of the appeal. But,
inasmuch as they sound on the question of the proportionality of the government’s
decision, they are matters to be taken into account. I will return to this theme in paras
188-190 of this judgment.
Page 65
186. In the meantime, it is important to deal with the significance to be attached
to a finding that the government has not acted in breach of article 3 of UNCRC. One
may begin by recognising that, of course, if the government was found to have acted
in breach of that provision, this would go a long way towards showing that the
decision not to exempt the appellant cohorts from the revised cap was
disproportionate, if indeed it would not be conclusive on that issue. But a finding
that no breach of article 3 arose does not establish the converse.
187. But I query the premise (which I believe to be implicit in Lord Wilson’s
judgment) that the question of whether the government was in breach of the article
is pivotal to the issue of proportionality. UNCRC contains a number of enjoinders
to those countries which subscribe to it. Some of these are expressed in imperative
terms. The duty of the state is to keep faith with the spirit of the Convention. Whether
it has discharged that duty is not to be answered solely on whether it can be said to
be in technical breach of its terms. The proportionality of a government measure
which has an impact on the best interests of children is not to be judged by a
mechanistic approach to the question whether there has been technical compliance
with article 3. It must be assessed on the basis of whether, given the injunctions in
UNCRC, the government’s decision, taking into account where the best interests of
children lie, represents a balanced reaction to those interests and the aims which a
particular measure seeks to achieve. I should say, however, if the proportionality of
the government’s decision not to exempt the appellants from the benefit cap
depended on whether there was a failure to comply with it, I would have held that
the government was in breach of article 3. I will discuss the reasons for that
conclusion later in this judgment.
188. Article 3 (and articles 26 and 27) provide a context as well as a backdrop to
the government’s decision as to those who should be covered by the cap. That
decision is not insulated from challenge on proportionality grounds by the
government’s claim that it took representations into account, nor even that it carried
out an evaluation of their weight and persuasiveness. The government must show
that it reached a balanced conclusion, taking into account the impact which the
refusal to exempt the cohorts whom DA and DS represent has had upon them, when
weighed against the interests of society which the conclusion is said to protect.
189. The impact of the decision not to exempt the DA and DS groups is well
described in the submissions of Gingerbread made to the Public Bill Committee of
the House of Commons in September 2015, referred to in para 83 of Lord Wilson’s
judgment. No real answer to the criticisms of the scheme has been provided by the
government. Its principal defence is its reliance on the DHP scheme. The
shortcomings of that scheme have been vividly described in paras 30 and 31 of Lord
Wilson’s judgment. Quite apart from the myriad of difficulties to which he there
refers, the fundamental point to be made is that DHPs are not tailored to deal with
the spectrum of difficulties which the appellants face, merely one aspect of them:
Page 66
housing costs. They do nothing to alleviate problems with childcare costs and
complications in obtaining childcare, even if it could be afforded. And, of course,
there is, as Lord Wilson pointed out in para 31, scant, indeed, virtually no,
information as to the extent by which the difficulties encountered by the DA and DS
cohorts are mitigated by DHPs. There is simply no warrant for the claim that refusal
to extend exemption from the cap to the DA and DS cohorts will improve the
fairness of the social security system or increase public confidence in its fairness.
That sweeping statement partakes of a declamation for which no tangible evidence
is proffered. To the contrary, a proper understanding of the impact on those whom
the appellants represent, so far from increasing public confidence in the social
security system, is likely to lead any right-thinking person to the opposite
conclusion.
190. The other two professed aims of government, to incentivise parents in a nonworking family to obtain work and to achieve fiscal savings have been decisively
refuted by the evidence. One can only incentivise parents to obtain work if that is a
viable option. The evidence in this case overwhelmingly shows that in most cases
in the DA and DS cohorts, this is simply not feasible. In particular, lone parents are
placed in an impossible dilemma. If they go out to work, they must find the resources
for childcare. Those in the DA and DS groups will routinely find it impossible to
obtain employment which will remunerate them sufficiently to make this a sensible
choice. They also face the difficulty of obtaining suitable childcare, irrespective of
whether they can afford it.
191. As to the fiscal savings that might be achieved, Lord Wilson has dealt
summarily and conclusively with that argument in para 32 of his judgment. I agree
entirely with what he has had to say there and need not repeat it.
The application of the proportionality test to this case
192. The enjoinder in article 3.1 of UNCRC that, in all actions concerning children
undertaken by administrative authorities or legislative bodies, the best interests of
the child shall be a primary consideration sets the scene for an examination of
whether the failure to exempt the DA and DS cohorts from the cap is a proportionate
interference with their ECHR rights. It is to be noted that the best interests of the
child must be a primary consideration. Where those interests conflict with other
considerations, although they will not inevitably prevail, their primary status must
be respected. Ephemeral aspirations, however high-sounding or apparently noble,
will not suffice to displace them.
193. The entitlement of children, enshrined in articles 26 and 27 of UNCRC, to
have the state take necessary measures to ensure that their right to social security
Page 67
benefits is fully realised; and that this comprises an adequate standard of living; and
that measures must be taken to assist parents to implement that right all contribute
to the importance that UNCRC places on the welfare of children. Where measures
are adopted by a state which have a demonstrable adverse effect on children, the
hurdle faced by government in showing that these factors have been properly taken
into account is correspondingly heightened.
194. Government, if it is to adhere to its obligations under UNCRC, must have a
clear-sighted understanding of the impact on children that a proposed measure
curtailing their entitlement to social security benefits will have. It must also carry
out a defensible weighing of their interests against the objectives which it proposes
will be achieved by a curtailment of the rights. The preponderance of evidence in
this case strongly supports the conclusion that this is not the way in which the
respondent approached the decision under challenge in this appeal. True it is that it
considered the representations made. But I do not conclude that a proper weighing
of the particular interests of the DA and DS cohorts against what was likely to be
achieved in their case was carried out.
195. It is not enough that notice was taken of the various submissions made, or
that the amendments proposed to the scheme came to the attention of the
government. There must be a frank and objective assessment of whether depriving
these particular individuals of the benefit of exemption from the cap would conduce
in a material way to the realisation of the avowed aims of the scheme. For the reasons
that I have given, I do not consider that such an exercise was undertaken. Further, I
believe that, if it had been, the case for the inclusion of the DA and DS cohorts in
the exemption should have been found to be irresistible.
196. As I have said, I do not consider that breach of article 3 of UNCRC is an
essential prerequisite to a finding that there has been a disproportionate interference
with the appellants’ ECHR rights. But, if such a breach required to be found, I would
have concluded that it was present. The evidence in this case unmistakably points to
the inference that, while the impact on children’s rights was considered, it was not
given a primacy of importance which article 3 requires. Had it been, the conclusion
that the exemption should not be extended to the DA and DS cohorts would not have
been reached.
197. Lord Wilson has amply demonstrated that government and Parliament were
alive to the state’s obligation under article 3 of UNCRC. Where, regretfully, I must
disagree with him is on his conclusion that taking into account the representations
made amounted to a discharge of that obligation.
Page 68
Conclusion
198. I would allow the appeal and make a declaration that the regulations represent
an unjustifiable interference with the appellants’ article 1, Protocol 1 and article 8
rights, taken in combination with article 14 of ECHR.