LMN & Anor, R (on the application of) v The Secretary of State for Work and Pensions

A challenge to welfare-benefit regulations cannot succeed merely because the claimant identifies a morally compelling or politically controversial case for greater support. Where Parliament has lawfully adopted a two-child limitation, secondary legislation creating limited exceptions must be assessed consistently with that scheme’s legitimate aims.

In an Article 14 challenge, the court must examine status, comparison and justification, while avoiding a rigidly formulaic approach. In social and economic policy, substantial weight is ordinarily given to legislative and executive judgment, although suspect grounds require careful scrutiny. The court cannot substitute its view of socio-economic fairness for a policy choice which the law does not prohibit. Article 3 does not generally require welfare legislation to provide financial compensation or enhanced benefits for historic domestic abuse.

Two mothers receiving Universal Credit challenged the Universal Credit Regulations 2013, as amended, concerning the ordering of children for the two-child limitation and the scope of the non-consensual conception exception.

Both claimants had children conceived in circumstances involving rape or coercive control. They argued that applying the limitation to later consensually conceived children, while treating adoption and non-parental care exceptions differently, amounted to unlawful discrimination under Articles 14 and 8, and Article 1 of Protocol 1, engaged Article 3 duties, and was irrational.

The central issue was whether the regulations were legally required to provide additional exceptions or different ordering rules for mothers of non-consensually conceived children.

1. Grounds 1 and 3 dismissed. The court dismissed the Article 14 discrimination and irrationality challenges. The two-child limitation in the primary legislation was not open to challenge, having been upheld by the Supreme Court in R (SC) v Secretary of State for Work and Pensions. The present challenge had to be confined to the exercise of the exception-making power and the ordering provisions.
2. “Mothers of non-consensually conceived children” was an objectively ascertainable status. It was not impermissibly defined by the alleged difference in treatment. Because it was connected with sex and gender-specific violence, any discrimination on that ground required careful and potentially intense scrutiny.
3. The court accepted that the regulations pursued legitimate and important aims. These included controlling public expenditure and maintaining a fair benefits system by avoiding an economic advantage for supported families over self-supporting families when adding children beyond two. The non-consensual conception exception addressed cases where there had been no choice to add an additional child. The adoption and non-parental care exceptions pursued a distinct aim of supporting family alternatives to local-authority care.
4. Those aims rationally explained the different ordering rules. Biological mothers retained default parental responsibility for their children, whatever the circumstances of conception. That was materially different from adopters and non-parental carers assuming parental responsibility for children who were not their own. No less intrusive measure was identified.
5. At the proportionality stage, the regulations concerned highly sensitive social and economic policy and had substantial democratic legitimacy. The court was required to give significant respect to Parliament’s and government’s assessment of competing versions of fairness. The claim ultimately asked the court to resolve a political law-reform question for which there were no legal standards capable of compelling the proposed outcome.
6. Ground 2 dismissed. Article 3 was not engaged by the welfare regulations. The recognised positive duties under Article 3 did not establish a duty to provide enhanced welfare payments or financial reparation for historic domestic abuse. The claimants’ autonomy had not been displaced by state control, and no real and immediate risk or sufficiently specific systems duty was established.
7. The claim was dismissed.