R v Secretary of State for Work and Pensions

In challenges to general rules governing entitlement to welfare benefits under article 14 of the Convention, the sole test of justification is whether the discriminatory effect is manifestly without reasonable foundation. The court must scrutinise the reasons proactively, while giving due weight to the institutional competence of government and Parliament in socio-economic policy.

A failure to treat relevantly different groups differently may engage article 14. What must be justified is the impugned similarity or difference in treatment, rather than the scheme in the abstract. The Convention may be interpreted in the light of the United Nations Convention on the Rights of the Child, although that Convention is not part of domestic law.

Two groups of lone parents and their young children challenged the revised benefit cap. The cap reduced specified welfare benefits and could generally be escaped by working enough hours to qualify for working tax credit. The claimants argued that applying it without an exemption for lone-parent families with children under two or under five unlawfully discriminated against them under article 14, read with article 8 and article 1 of Protocol 1.

In the DA proceedings, the High Court upheld the claim, but the Court of Appeal allowed the Secretary of State’s appeal by a majority: [2018] EWCA Civ 504. The DS claims were dismissed without a merits inquiry, with a leapfrog certificate, and permission was granted to appeal directly.

The central issue was whether the failure to exempt the identified cohorts was manifestly without reasonable foundation, informed by article 3.1 of the United Nations Convention on the Rights of the Child.

1. Disposition. By a majority of five to two, the appeals were dismissed. Lord Wilson, with whom Lord Hodge agreed, held that the failure to exempt the appellant cohorts from the revised benefit cap did not amount to Convention discrimination. Lord Carnwath, with whom Lord Reed and Lord Hughes agreed, reached the same conclusion. Lord Hodge also agreed with Lord Carnwath on justification. Lady Hale and Lord Kerr dissented.
2. Article 14 framework. The revised cap fell within the ambit of article 8 because reducing subsistence benefits well below the poverty line could strike directly at the stability and practical conditions of family life. A status under article 14 need not be permanent. Lord Wilson considered the claimed statuses established. The other members of the majority were content to assume status, while expressing doubts about the narrower age-defined cohorts. A complaint may rest on a failure, without objective and reasonable justification, to treat differently persons whose situations are significantly different. Lord Wilson treated all others subjected to the cap as the natural comparator, but the result did not depend on a definitive choice of comparator.
3. Focus and standard of justification. The state had to justify its failure to exempt lone parents with children under two or under five, and those children, rather than merely justify the benefit-cap scheme generally. For an allegedly discriminatory rule governing welfare-benefit entitlement, the sole domestic question is whether the adverse treatment is manifestly without reasonable foundation. That standard applies to the proportionality inquiry as a whole. The court nevertheless conducts careful, proactive scrutiny; the formulation does not turn the case on a formal burden of proof.
4. Children’s interests. The United Nations Convention on the Rights of the Child is not part of domestic law, but can inform the interpretation of Convention rights. Article 3.1 required the best interests of affected children to be treated as a primary consideration and the likely impact on them to be evaluated. The parliamentary and policy materials showed that government had evaluated the effect on lone parents with young children and had considered their children’s interests at a primary level. There was therefore no breach of article 3.1.
5. Application. The cohorts were in a relevantly different situation because of childcare burdens, the difficulty of obtaining work and care, and the especially serious effects of poverty on young children. Even so, the government’s belief that children have better long-term outcomes in a working household supplied a reasonable foundation for applying the cap. Lord Wilson also relied on discretionary housing payments intended to address individual hardship. The foundation was therefore not manifestly unreasonable.
6. Dissent. Lady Hale and Lord Kerr would have allowed the appeals. They considered that the scheme lacked a sufficient rational connection or fair balance, that children’s interests had not received the required priority, and that the impugned regulations unjustifiably discriminated against the cohorts.

1. United Kingdom Supreme Court: Dismissed both appeals by a majority of five to two, affirming the Court of Appeal’s dismissal of the DA claims and the dismissal of the DS claims.
2. Court of Appeal: In the DA proceedings, allowed the Secretary of State’s appeal by a majority, set aside the High Court’s declaration and dismissed the claims: [2018] EWCA Civ 504.
3. High Court: In the DA proceedings, Collins J declared that the amended Housing Benefit Regulations 2006 unlawfully discriminated against lone parents of children under two and those children: [2017] EWHC 1446 (Admin). In the DS proceedings, Lang J dismissed the claims without examining their merits and granted a leapfrog certificate.