T & Ors, R (on the application of) v The Secretary of State for Education

For the purposes of Article 14 read with Article 8 ECHR, the court must justify the discriminatory effect of a measure, rather than the policy considered in the abstract. In cases concerning economic or social policy, substantial respect is owed to choices made by Parliament and the executive, particularly where the relevant eligibility criteria have been consciously considered.

A scheme providing additional benefits to incentivise working parents may legitimately exclude lone parents unable to work, provided the differential treatment pursues a legitimate aim, is rationally connected to it and strikes a fair balance. The absence of significant established educational benefits from the additional childcare, together with continuing review of emerging evidence, supported objective justification. The claim was dismissed.

Three parents and three children sought judicial review of regulations implementing an additional 15 hours of free childcare for qualifying three- and four-year-old children of working parents. The claimants included lone parents receiving carer’s allowance and a lone parent who had experienced domestic abuse and was living in a refuge.

The claimants alleged differential treatment on grounds of other status, contrary to Article 14 read with Article 8 ECHR. The Secretary of State accepted differential treatment and relied on the legitimate aim of facilitating and incentivising parents to work or increase their hours. The central issue was whether the differential treatment was objectively justified, both when the Regulations were made and while they remained in force.

1. The claim was dismissed. Permission to appeal was refused. There was no order as to costs, and the claimants’ publicly funded costs were subject to detailed assessment.

2. The court accepted that the scheme created differential treatment on grounds of other status, falling within the ambit of Article 8. The relevant comparison was between children of working parents who received the additional 15 hours and children of lone parents unable to work because of caring responsibilities or domestic abuse.

3. The aim of the Childcare Act 2016 and the Regulations was to facilitate and incentivise parents to work or increase their working hours. The court had to justify the discriminatory effect of the measure. The statutory purpose, ministerial statements and policy material could be considered in identifying that aim.

4. The court considered both the manifest-without-reasonable-foundation approach and the more structured proportionality approach. The measures pursued a legitimate aim and were rationally connected to it. Extending the entitlement to non-working lone parents would pursue a different aim, including respite or educational assistance, rather than being a less intrusive means of achieving the existing aim.

5. Parliament and the executive had considered the exclusion of non-working lone parents and the relevant evidence. The available evidence did not establish significant educational or developmental benefits from the additional 15 hours when the Regulations were made. The subsequent study disclosed some possible benefits, but their scale and significance remained limited or uncertain, and the executive was keeping the evidence under review.

6. The United Nations Convention on the Rights of the Child was not directly applicable in domestic law. Article 3 did not require every benefit conferred on some children to be extended to all children. Even if Article 3 considerations were relevant, they did not prevent objective justification in this case.

7. The continuation of the Regulations remained objectively justified. The children retained their existing 15-hour entitlement, the measure was directed to enabling parents to work, and other social-policy legislation addressed separate needs for assistance or services.

First-instance judicial review in the Administrative Court. The claim was dismissed and permission to appeal was refused.