A, R (On the Application Of) v The Secretary of State for Work And Pensions

A welfare-benefit scheme is not unlawful merely because it creates hardship for a small, vulnerable group. Where the scheme pursues a legitimate economic and social policy, the court applies the stringent manifestly without reasonable foundation standard, while scrutinising the justification carefully. A broad, locally administered discretionary-payment scheme may provide a lawful means of addressing hard cases, including cases not expressly identified in policy materials. The public sector equality duty requires due regard to protected characteristics before and during policy-making, but does not require the decision-maker to identify every conceivable consequence or permit judicial micro-management of policy. An asserted future risk of an Article 8 breach will not succeed without a sufficiently serious interference or an inadequate safeguard.

The claimant, a survivor of serious domestic violence, lived with her son in a council house adapted under a Sanctuary Scheme. The Housing Benefit (Amendment) Regulations 2012 treated the property as containing an unoccupied bedroom and reduced her housing benefit by 14 per cent. A discretionary housing payment previously covered the shortfall, but transitional protection ended and the payment was cancelled.

She sought judicial review of the regulations, alleging sex discrimination contrary to article 14 of the Convention, breach of the public sector equality duty under section 149 of the Equality Act 2010, and an unacceptable risk of future breach of article 8. The central issues were whether the treatment was justified, whether the Secretary of State had had due regard to sex equality, and whether the combined scheme of reduced benefit and discretionary payments was unlawful.

1. Article 14. The regulations were prima facie discriminatory because their disproportionate effect fell principally on women, and article 14 was engaged through article 1 of Protocol 1. The relevant question was whether the different treatment had an objective and reasonable justification.
2. The applicable standard was whether the discrimination was manifestly without reasonable foundation. That is stringent, but requires careful scrutiny of the justification and whether there was a serious flaw producing an unreasonable discriminatory effect. The court considered the scheme as a whole, including its policy aims, parliamentary consideration, funding and safeguards.
3. The discretionary housing payment scheme was sufficiently flexible to address hard cases. It was locally administered, capable of longer-term or indefinite awards, supported by substantial funding, and subject to public-law and Convention duties. The absence of an express reference to Sanctuary Scheme residents did not make reliance on the scheme unlawful. The decision to use discretionary payments rather than create a specific exemption was not irrational or manifestly without reasonable foundation.
4. Public sector equality duty. Section 149 required due regard to the protected characteristic of sex, not to domestic violence as a separate characteristic. The Equality Impact Assessment recognised the greater impact on women. The duty required a substantive and conscientious consideration before and during policy-making, but did not require the Government to list every consequence of a major national policy or dictate the weight to be given to equality considerations.
5. Article 8. The claimant had not yet suffered the alleged interference. Even if an interference arose when the account credit was exhausted, the circumstances fell short of the high threshold for an Article 8 obligation to provide housing or welfare support, and the discretionary-payment scheme supplied an adequate safeguard. The application was refused. Permission was refused, so far as relevant, for the reformulated Article 8 ground.

First-instance judicial review in the Administrative Court. No earlier decision in the same proceedings is stated.