OAJ & Ors, R (on the application of) v His Majesty's Treasury & Anor

Eligibility rules for targeted childcare support may exclude persons subject to immigration control where the enabling legislation confers sufficiently broad regulation-making powers and Parliament has adopted a policy of limiting access to non-contributory support.

Differential treatment based on immigration status in general economic or social schemes attracts a wide margin of appreciation. A challenge under articles 8 and 14 of the ECHR will generally require a strong justification for judicial intervention.

The public sector equality duty is a duty of process. A decision-maker must rigorously and conscientiously consider the statutory equality criteria, but the court does not reweigh those matters. Under section 31(3)(D) of the Senior Courts Act 1981, permission must be refused where it is highly likely that a lawful process would not have produced a substantially different outcome.

The claimants, a Nigerian skilled worker subject to a no-recourse-to-public-funds condition and her two young children, challenged eligibility rules excluding persons subject to immigration control from tax-free childcare and extended free childcare for working parents.

They alleged that the rules were ultra vires, discriminatory under articles 8 and 14 of the ECHR, irrational and made in breach of the public sector equality duty under section 149 of the Equality Act 2010. The court also considered delay, permission and interim relief.

The central issues were whether the regulations exceeded the enabling Acts, whether the differential treatment was objectively justified, whether the rules were irrational, and whether any breach of the equality duty could justify permission despite the likely outcome of a properly conducted process.

1. Permission and interim relief. The claim was brought promptly from the date on which the claimant resumed work and required childcare. Permission to apply for judicial review was refused on all grounds, and interim relief was consequently unavailable.
2. Ultra vires. Regulation 7(3)(c) of the Childcare Payments (Eligibility) Regulations 2015 validly treated a person subject to immigration control as not being in the United Kingdom for the purposes of the tax-free childcare scheme. Sections 8(1) and 8(2)(a) of the Childcare Payments Act 2014 contemplated that regulations could specify when a person was to be treated as being, or not being, in the United Kingdom.
3. The equivalent exclusion from extended free childcare was also within the powers conferred by section 1 of the Childcare Act 2016. The power to impose conditions on the parent making the declaration was broad enough to support the eligibility criterion.
4. Discrimination and rationality. Articles 8 and 14 of the ECHR were engaged and the rules discriminated on immigration-status grounds, but the differential treatment was objectively justified. The schemes pursued legitimate social-policy aims, including facilitating and incentivising work while allocating limited resources. The state enjoyed a wide margin of appreciation, and courts should exercise considerable caution before interfering with schemes approved by Parliament. Excluding those who had accepted a no-recourse condition, and those unlawfully in the United Kingdom, was rational.
5. Public sector equality duty. The Secretary of State for Education had adequately discharged the duty in relation to extended free childcare through successive consideration of the equality impacts. The Treasury had not adequately discharged the duty for tax-free childcare because the earlier assessments did not address the eligibility criteria at ministerial level. Nevertheless, under section 31(3)(D) of the Senior Courts Act 1981, permission had to be refused because the recent detailed assessment made it highly likely that the outcome would not have been substantially different. The same conclusion would apply to extended free childcare if there had been a breach. There were no exceptional public-interest reasons to disapply the statutory requirement.

First-instance judicial review claim. The judgment states that earlier applications for expedition and interim relief had been refused or adjourned, but gives no appellate decision.