MD v Secretary of State for the Home Department

Damages under section 8 of the Human Rights Act 1998 are awarded only where necessary to afford just satisfaction. Where a claimant receives the same substantive support through another statutory route, a difference in label or payment mechanism causes no compensable loss. The court must distinguish the disadvantage actually pleaded from other differences, such as the absence of mainstream benefits caused by immigration status. In an indirect sex discrimination claim, the relevant question is differential impact between men and women within the affected pool, not merely that the pool predominantly comprises women. A fixed rate of child support may be justified within the Government’s wide policy discretion. Article 12 ECAT leaves the Government choice as to implementation, subject to rationality, and does not require a separate childcare payment.

Two Albanian single mothers, recognised victims of trafficking and asylum-seekers, challenged their exclusion from victim-of-trafficking dependent child support while receiving asylum support. Kerr J upheld claims of direct status discrimination and indirect sex discrimination under article 14 of the ECHR, read with article 4 and article 1 of the First Protocol, and awarded damages under the Human Rights Act 1998. The Secretary of State appealed against the damages decision and the finding of indirect discrimination, but not the direct discrimination finding or its justification. The appeal concerned the equivalence of asylum support and trafficking support, damages for an allegedly anomalous comparator advantage, and whether the fixed-rate support regime indirectly discriminated against women or lone parents.

The lower court’s decision was reported as [2021] EWHC 1370 (Admin).

1. Disposition. The appeal was allowed on both surviving grounds. Element (b) of the declaration, concerning indirect discrimination against women, was set aside. The damages provisions were set aside in their entirety. The direct discrimination declaration was not challenged on appeal and remained undisturbed.
2. Damages. Under section 8 of the Human Rights Act 1998, damages are available only where necessary to afford just satisfaction. The principles derive from Strasbourg case law, including Greenfield [2005] UKHL 14, Van Raalte v The Netherlands [1997] ECHR 6 and Wilkinson [2005] UKHL 30. Where more favourable treatment of a comparator is an unjustifiable anomaly, compliance would ordinarily require removal of that advantage rather than extending it to others.
3. The claimants received asylum-seeker dependent child support equivalent to the trafficking-dependent child support which they alleged had been withheld. The difference was therefore nominal and caused no financial loss. The judge had conflated that disadvantage with the separate absence of mainstream benefits, which depended on nationality and immigration status. No damages for distress were available because the specific difference complained of had caused no loss or distress. Hooper [2003] EWCA Civ 813 illustrated the same distinction between the amount and form of support.
4. Indirect discrimination. The judge’s approach was legally flawed. The relevant comparison was not between a pool predominantly comprising women and another pool, but whether the measure had a differential impact between men and women within the affected pool. The court did not finally determine whether prima facie discrimination was established. It decided the claim on justification.
5. A fixed rate of support for a dependent child was within the Secretary of State’s wide discretion, even if lone parents might generally have greater financial needs. The proposed future needs-based scheme did not make the existing policy unjustifiable. Article 12 of ECAT imposed general obligations and left the Government to choose a rational method of implementation; it did not require separate funding of childcare for appointments.

1. Court of Appeal (Civil Division) — The Secretary of State’s appeal was allowed on damages and indirect discrimination. Element (b) of the declaration and the damages orders were set aside.
2. High Court of Justice, Queen’s Bench Division, Administrative Court — Kerr J, in [2021] EWHC 1370 (Admin), upheld direct and indirect discrimination claims, granted declaratory relief and awarded damages under section 8 of the Human Rights Act 1998.