R (T) v Secretary of State for Education

This judicial review concerned challenges to the Childcare (Early Years) (Provision Free of Charge) (Extended Entitlement) Regulations 2016 made under section 1 of the Childcare Act 2016. The claimants, three lone parents and three children, argued that the Regulations discriminated in breach of Article 14 taken with Article 8 ECHR by providing an extra 15 hours a week of free childcare to children of working parents while excluding children of lone parents who could not work because of substantial caring responsibilities (including those receiving carer’s allowance) or because they were victims of domestic abuse. The Secretary of State accepted differential treatment but relied on objective justification.

The court identified the legal test for Article 14/Article 8 claims (existence of differential treatment on a Convention ground and objective justification by reference to a legitimate aim and proportionality) and applied the established margin of appreciation in social and economic policy (the measure will be struck down only if manifestly without reasonable foundation). The court accepted the statutory and regulatory aim: to incentivise and facilitate parents to undertake paid work.

Having examined legislative materials, the equality impact assessment, pilot evaluations and academic studies (including EPPSE and the later Study of Early Education and Development), the judge found that the differential treatment was rationally connected to the legitimate aim and not manifestly without reasonable foundation. The emergent evidence of some limited benefits from additional hours did not demonstrate that continuation of the Regulations was unlawful; the legislature and executive had considered the policy and were entitled to keep implementation under review. The failure by the defendant initially to disclose a near-final Departmental study of early education was addressed procedurally but did not alter the substantive conclusion. The claim was dismissed.

The claimants were three lone parents and three children who sought judicial review of regulations implementing section 1 of the Childcare Act 2016 which require the Secretary of State to secure 30 hours a week of free childcare for qualifying children of working parents (15 hours already being available to all three- and four-year-olds). The Regulations condition the additional 15 hours on parental work status and certain income thresholds: a parent must be in qualifying paid work (or meet specified exceptions) and have adjusted net income below £100,000. Two claimants cared for others and received carer’s allowance; one was a victim of domestic abuse living in a refuge. Each alleged the Regulations discriminated on an "other status" ground contrary to Article 14 ECHR read with Article 8 by excluding children of lone parents unable to work from the additional entitlement.

Relief sought: declarations and relief by way of judicial review that the Regulations unlawfully discriminate contrary to Article 14 read with Article 8.

Issues framed:

• Whether the Regulations produce differential treatment between (a) families where one parent is working and (b) lone-parent families where the lone parent cannot work because of caring responsibilities or domestic abuse;
• Whether the differential treatment falls within Article 14 as being on the ground of "other status";
• Whether the defendant demonstrated objective justification for the differential treatment (legitimate aim; rational connection; proportionality / fair balance), having regard to evidence and the appropriate margin of appreciation in social and economic policy.

Key factual and legal background: the judge set out the statutory framework (Childcare Act 2016 s.1 and the 2016 Regulations), relevant earlier provisions (Childcare Act 2006 ss.6–7 and the 2014 Regulations) and the policy background (ministerial statements and a December 2015 policy statement). The court had regard to the equality impact assessment, pilot evaluations (early evidence of increased hours for a minority of parents), academic literature (EPPSE) and a later Departmental Study of Early Education and Development finalised in 2018 (the court analysed its limited and qualified findings).

Court’s reasoning: the court accepted there was differential treatment and that the differential treatment fell within Article 14 on the ground of other status (caring responsibilities and refuge residence following domestic abuse were held to be identifiable characteristics). The statutory aim — incentivising and facilitating paid work — was legitimate. The Regulations were rationally connected to that aim because they targeted additional childcare at households where an adult is in qualifying work; extending the entitlement to lone, non-working carers would not in general further that aim. Given the nature of social and economic policy, the court applied the margin of appreciation standard (manifestly without reasonable foundation). The judge closely reviewed the evidence advanced by the claimants (including statistical critiques and the 2018 study) and concluded the available evidence did not show that the differential treatment was unjustified or that the Regulations were manifestly without reasonable foundation. The court considered Article 3 of the United Nations Convention on the Rights of the Child and the associated General Comment but held that the Convention did not require that benefits provided to some children must be provided to all; the UN material did not displace the Article 14 analysis. The court also addressed the defendant’s procedural lapse in failing to disclose the near-final 2018 Study before circulation of the draft judgment; that procedural failing was remedied by admitting the study and holding an additional hearing, but it did not change the substantive outcome.

Result: the claim for judicial review was dismissed; permission to appeal refused.

The claim is dismissed. The court held that, although the Regulations create differential treatment between children of working parents and children of lone parents who cannot work because of caring responsibilities or domestic abuse, that differential treatment pursues a legitimate aim (incentivising and facilitating parents to work), is rationally connected to that aim and is not manifestly without reasonable foundation. The available evidence (including pilot evaluations, EPPSE and the later 2018 Study) did not demonstrate that continuation of the Regulations would be discriminatory under Article 14 read with Article 8. The court also addressed and remedied a disclosure lapse concerning a departmental study, but that did not alter the substantive conclusion.