R (on the application of SG and others (previously JS and others)) v Secretary of State for Work and Pensions

Indirect discrimination under article 14 may arise where a facially neutral measure disproportionately affects a protected group. A general welfare measure pursuing social and economic policy will ordinarily be respected unless it is manifestly without reasonable foundation. Public expenditure savings may be a legitimate aim, but do not alone establish proportionality.

A benefit cap which affected more women than men was objectively justified where it pursued legitimate aims of limiting welfare expenditure, incentivising work and maintaining confidence in the benefits system, and no credible less discriminatory means would achieve those aims.

An unincorporated treaty is not domestic law. It may inform interpretation of Convention rights only where it is relevant to the particular sphere. Children’s best interests under the UNCRC did not determine whether differential interference with women’s property rights was justified.

The appellants were lone mothers and their children whose housing benefit was reduced under the Benefit Cap (Housing Benefit) Regulations 2012. The cap limited the total welfare benefits payable to non-working households by reference to the net median earnings of working households. Lone-parent households were disproportionately affected and most lone parents were women.

The Divisional Court rejected the challenge: [2013] EWHC 3350 (QB); [2014] PTSR 23. The Court of Appeal upheld that conclusion: [2014] EWCA Civ 156. The appellants contended that the Regulations caused unjustified indirect sex discrimination contrary to article 14 read with article 1 of Protocol No 1, disproportionately affected victims of domestic violence, and failed to treat children’s best interests as a primary consideration under article 3(1) of the UNCRC.

1. Disposition. By a majority of three to two, the appeals were dismissed. Lord Reed delivered the principal judgment and Lord Hughes agreed with it. Lord Carnwath concurred in the result on narrower grounds. Lady Hale and Lord Kerr dissented.

2. Article 14 and social policy. A facially neutral measure may be indirectly discriminatory where it has disproportionately prejudicial effects on a protected group. Discrimination requires a difference in treatment between persons in relevantly similar situations which lacks a legitimate aim or a reasonable relationship of proportionality to that aim. In relation to general measures of economic or social strategy, the considered assessment of Government and Parliament should be respected unless manifestly without reasonable foundation. Judicial scrutiny remained necessary, but the cap involved controversial choices about social policy and public expenditure which were primarily for democratically accountable institutions.

3. Justification of the benefit cap. The cap had a greater effect on women because women headed most non-working lone-parent households receiving high benefits. Its aims were nevertheless legitimate: securing the country’s economic well-being, reducing or constraining welfare expenditure, incentivising employment, imposing a reasonable limit on public support and maintaining confidence in the welfare system. The discriminatory effect was proportionate. No credible alternative had been identified which would avoid affecting more women without materially compromising those aims. The legislation had to be assessed as a system; hardship in particular cases did not determine its compatibility with article 14. The separate claim concerning victims of domestic violence was not established, particularly following protection for refuge accommodation and the availability of discretionary housing payments.

4. The UNCRC. Lord Reed, Lord Carnwath and Lord Hughes agreed that article 3(1) of the UNCRC could not determine the justification of discrimination against women in relation to A1P1. The UNCRC was unincorporated and could inform the ECHR only where it was relevant to interpretation of the Convention right in issue. The impact on children did not supply the necessary connection: children living with lone fathers were affected in the same way as children living with lone mothers. Lord Carnwath nevertheless considered that the Secretary of State had failed, as a matter of the assumed UNCRC obligation, to treat affected children’s interests as a primary consideration. That conclusion had political rather than legal consequences.

5. Dissent. Lady Hale and Lord Kerr considered that the UNCRC informed the proportionality analysis and that children’s interests were inseparable from those of lone parents. They concluded that the best interests of affected children had not received primary consideration and that the discrimination was unjustified. Lord Kerr additionally considered that ratified human-rights treaties should be directly enforceable domestically.

• United Kingdom Supreme Court: In R (on the application of SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2015] UKSC 16, the appeals were dismissed by a majority of three to two.
• Court of Appeal: The court upheld the rejection of the challenge and held that the discriminatory effects of the benefit cap were justified: [2014] EWCA Civ 156.
• Divisional Court of the High Court: The court rejected the judicial-review challenge and held that the benefit-cap scheme was compatible with the Convention rights relied upon: [2013] EWHC 3350 (QB); [2014] PTSR 23.