MD & Anor, R (On the Application Of) v Secretary of State for the Home Department

A difference in social-security support may constitute discrimination under article 14 even where it results from an inadvertent administrative error and gives another group an unintended windfall. The relevant question is whether the difference in treatment has a reasonable foundation, not whether the underlying policy judgment was rational.

A wide margin of appreciation protects social and economic policy choices, but it does not provide a licence to maintain discriminatory treatment caused by poor implementation, particularly where the proposed reform has no convincing timetable. The court may award damages under section 8 of the Human Rights Act 1998 where financial and non-financial loss make an award necessary for just satisfaction.

Two Albanian single mothers, recognised as victims of trafficking and later as refugees, challenged the exclusion of dependent-child payments under the Modern Slavery Victim Care Contract while they were receiving asylum support. Comparable victims receiving mainstream benefits received those payments.

The claims alleged direct and indirect discrimination under article 14 of the ECHR, read with article 4 and A1P1, and common-law irrationality. The Secretary of State accepted the difference in treatment but argued that it resulted from an accidental windfall to others, that the underlying policy was rational, and that wholesale reform was being developed. The court also had to determine whether damages were necessary.

1. The claims succeeded. The difference between asylum-seeking trafficking victims with dependent children and comparable victims receiving mainstream benefits was admitted and amounted to direct discrimination for article 14 purposes. The same difference had an adverse impact on lone parents, predominantly women, and therefore established indirect discrimination. The appropriate comparison was with asylum-seeking trafficking victims without dependent children, not male lone parents.
2. The court rejected irrationality as the correct characterisation of the underlying policy. It was rational for the Secretary of State not to make duplicate subsistence payments for children receiving asylum support. The difficulty lay in the policy’s implementation, which left non-asylum-seeking victims receiving an unintended additional payment.
3. The difference in treatment itself required justification. The threshold was whether it was manifestly without reasonable foundation. Although saving public funds could constitute a legitimate aim, the error did not achieve that aim: the supposed windfall continued, while the claimants received less. The margin of appreciation protecting policy choices did not readily protect administrative incompetence. The proposed wholesale reform had no convincing timetable and amounted to uncertain future relief.
4. The court distinguished R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32 and R (Harrison) v Secretary of State for Justice [2020] EWHC 2096 (Admin). Those cases involved conscious policy choices or complex reform questions, whereas the present discrimination apparently resulted from a simple mistake affecting highly vulnerable people.
5. Under sections 8(3) and 8(4) of the Human Rights Act 1998, damages were necessary for just satisfaction. The claimants were entitled to back payments equivalent to the dependent-child support they would have received, together with modest awards for non-financial loss. They were not entitled to recover the specific cost of attending appointments. A declaration of breach was granted, with damages to be assessed in the county court if not agreed.

This was a first-instance judicial review. The claims were brought in July and October 2020. The court refused an adjournment sought by the Secretary of State and determined the substantive claims and damages issue.