DA & Orss, R (On the Application Of) v The Secretary of State for Work and Pensions

Thlimmenos discrimination requires a claimant to show that the relevant group is in a materially and significantly different situation from the comparator group. General hardship is insufficient where the wider measure is accepted as justified. The question is whether equal treatment is clearly unfair and whether the failure to make an exception is manifestly without reasonable foundation. Discretionary payments may be relevant to individual hardship, although they do not cure structural discrimination. A benefit cap may fall within the ambit of Article 8 where it has more than a tenuous connection with family life. However, Article 3 of the United Nations Convention on the Rights of the Child is not engaged merely because children are affected or are claimants, where the substance of the discrimination is against lone parents. The appeal was allowed.

The appeal concerned regulations implementing a reduced benefit cap under the Welfare Reform and Work Act 2016. Four lone mothers with children under two, and the children themselves, challenged the regulations under Article 14 of the European Convention on Human Rights, read with Article 1 of the First Protocol and Article 8. They argued that this cohort was materially different from other lone parents because of childcare difficulties, and that Article 3 of the United Nations Convention on the Rights of the Child required the children’s best interests to be a primary consideration.

Collins J declared the regulations unlawful insofar as they applied to the claimants. The central issue was whether the failure to exempt lone parents with children under two was discriminatory and manifestly without reasonable foundation.

1. Appeal allowed. The majority, comprising Sir Patrick Elias and the President, held that the regulations were not unlawful. Lord Justice McCombe dissented.
2. The claimants had the relevant status for Article 14 purposes. Temporary status was not disqualifying, and lone parents with children under two and the children themselves could fall within the concept of other status. It was unnecessary to measure the precise extent of a disproportionate impact before considering justification.
3. The claim was principally one of Thlimmenos discrimination. The claimants had to show that their circumstances were materially and significantly different from those of other affected lone parents. It was not enough to show childcare difficulties, poverty or hardship shared by other non-working households. The evidence and statistics did not establish that the cohort faced substantially greater or virtually insuperable difficulties in obtaining work.
4. Childcare costs and the absence of free childcare for children under two might reduce the financial benefit of working, but did not establish inability to obtain employment. The conditionality argument did not address that issue. Discretionary housing payments were a relevant, though limited, factor because they could respond to individual and transitional hardship.
5. The cap fell within the ambit of Article 8. Welfare benefits could be a modality of exercising family-life rights, and the cap had more than a tenuous connection with family life because it was designed to encourage work and could lead to changes of accommodation. The rights of parents and young children were inextricably linked.
6. Nevertheless, Article 3 of the United Nations Convention on the Rights of the Child was not engaged in the Article 14 claims. The substance of the alleged discrimination remained the disadvantage suffered by lone parents because of childcare responsibilities. Relying on Article 8, or bringing claims in the children’s names, did not alter that characterisation. The majority followed the relevant reasoning in SG and considered that the children’s claims added nothing of substance.
7. The manifestly without reasonable foundation threshold applied to this economic and social policy measure. The threshold was particularly high because the regulations had been approved by Parliament and the proposed exemption had been considered and rejected. The Secretary of State was entitled to conclude that the cohort need not be exempted.
8. McCombe LJ would have dismissed the appeal. He considered that the judge was entitled to find a distinct cohort on the evidence, and that the failure to evaluate the children’s best interests properly made the policy manifestly without reasonable foundation.

1. Court of Appeal (Civil Division) In [2018] EWCA Civ 504, the majority allowed the Secretary of State’s appeal and rejected the declaration of unlawfulness.
2. Administrative Court, Queen’s Bench Division Collins J upheld the judicial review challenge and declared the regulations unlawful insofar as they applied to lone parents with children under two and those children.