LORD WILSON: (with whom
Lord Hodge agrees)
Introduction
1.
The various appellants in each of two appeals, which have been heard
together, challenge the lawfulness of provisions relating to what is known as
the revised benefit cap.
2.
The original benefit cap was introduced by section 96(1) of the Welfare
Reform Act 2012 (“the 2012 Act”). Pursuant to it, the Housing Benefit
Regulations 2006, SI 2006/213, (“the 2006 Regulations”) were amended so as to
provide, in regulation 75A, that, if a household’s total entitlement to
specified welfare benefits were otherwise to exceed an annual limit, its
entitlement should be capped at that limit. The original cap came into force on
15 April 2013.
3.
In R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR 1449, this court, by a majority of three to two, dismissed an
appeal by three lone mothers and three of their children against a decision
that provisions relating to the original cap did not discriminate against women
in the enjoyment of their possession of welfare benefits and so were not
unlawful. I will refer to the SG case as the first benefit cap case.
4.
In its manifesto for the general election which took place on 7 May 2015
the Conservative Party proposed that any Conservative government would
introduce legislation for a revised benefit cap which would cap specified
benefits at a lower level. Following the party’s victory in that election the
government introduced, and Parliament enacted, the Welfare Reform and Work Act
2016 (“the 2016 Act”). By making amendments to the 2012 Act, the 2016 Act
introduced the revised cap, which came into force on 7 November 2016. In making
provision for the original cap, the earlier version of the 2012 Act had, in
section 96(5) to (7), provided for the annual limit, at which the welfare
benefits were to be capped, to be specified in regulations and to be determined
by reference to the estimated average net earnings of a working household in
Britain; and the amended 2006 Regulations had specified that, for couples and
lone parents, the annual limit was £26,000, being a figure apparently
determined in that way.
5.
But the amendments wrought by the 2016 Act have replaced those
provisions; and, for the purposes of the revised cap, they identify the annual
limits in the 2012 Act itself, namely in a new section 96(5A). The effect of
the subsection, when read with a new regulation 75CA inserted into the 2006
Regulations by regulation 2(3) of the Benefit Cap (Housing Benefit and
Universal Credit) (Amendment) Regulations 2016 (SI 2016/909) (“the 2016
Regulations”) is that, for couples and lone parents, the annual limits are
reduced to £23,000 if they reside in Greater London and to £20,000 if they
reside elsewhere. How were these reduced figures calculated? Clearly the
yardstick of average net earnings of a working household was abandoned -
otherwise the figures would not have come down. The government’s Impact
Assessment dated August 2016 relating to the 2016 Act (“the IA”) suggested that
the reduced figures were calculated by reference to the fact that 40% of
households earn less than them. But, say the appellants, the only
arguably relevant figures would relate to the total income of those
households, inclusive in particular of benefits. The amendments made in 2016
provide no automatic adjustment of the limits for inflation; and the reduced
figures have already lost 5% of their real value. But a new section 96A of the
2012 Act requires the Secretary of State to review them at least once during
each Parliament. The welfare benefits subject to the cap, which prior to the
amendments to the 2012 Act were left to be specified in regulations, are also
now specified in the Act itself, namely in section 96(10). Among others, the
benefits there specified include child benefit, child tax credit, housing
benefit and income support.
6.
Various features of the scheme which applied to the original cap have
been retained for application to the revised cap. By regulation 75D of the 2006
Regulations, it is for the local authority to implement the cap by reducing
payment of housing benefit accordingly. By regulation 75F, those in receipt of
certain benefits (now including, pursuant to amendment by the 2016 Regulations,
a carer’s allowance and a guardian’s allowance) are exempt from the cap even if
they also receive benefits which are specified in section 96(10) as being
subject to it. And, most importantly, by regulation 75E(2), those entitled to
working tax credit are exempt from the cap. Under regulation 4(1) of the
Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 (SI
2002/2005) a single person (which here includes a lone parent) is entitled to
working tax credit if, among other things, she or he undertakes work for at
least 16 hours each week. A couple, on the other hand, is entitled to it if,
among other things, they undertake work for at least 24 hours each week,
provided that one of them does so for at least 16 of those hours.
7.
In the IA the government stated that its introduction of the revised cap
had three aims:
(a)
to improve the fairness of the social security system and to increase
public confidence in its fairness, particularly in relation to the government’s
objective not to reward a non-working family with an income in the form of
welfare benefits which exceeded that of an average working family;
(b)
to make fiscal savings which would enable the government to redirect its
limited resources for better deployment elsewhere; and
(c)
to incentivise the parents or parent in a non-working family to obtain
work on the basis in particular that an ethic of work within a family
inculcated better outcomes for its children.
8.
The IA identified the incentivisation of work as the main aim. The
ability of parents to escape the cap by undertaking work for not less than the
specified number of hours is described by the government as a key exemption and
is therefore central to the design of the scheme.
9.
The basic argument on behalf of the appellants is that, in introducing
the revised cap, the government, through Parliament, has unlawfully
discriminated both against the lone parents of young children, whose ability to
work is severely curtailed by their childcare obligations, and against the
young children of lone parents.
10.
In the DA case there are five appellants. Three of them are lone
parent mothers. They all care for children of various ages. At the outset of
the proceedings the children of two of the mothers included a child aged under
two. Those two children then aged under two are the other appellants. Those two
mothers had each suffered a reduction in benefits as a result of the revised
cap. At the outset of the proceedings the third mother was pregnant.
11.
In the DS case there are eleven appellants. Two of them are lone
parent mothers. They both care for children of various ages. The first mother
cares for five children, each of whom is an appellant. The second cares for
four children, each of whom is also an appellant. At the outset of the
proceedings none of these nine children was aged under two but three of them
were aged under five. Both of the mothers had suffered a reduction in benefits
as a result of the revised cap.
12.
Both sets of appellants primarily cast their claim of unlawful
discrimination under the Human Rights Act 1998 (“the 1998 Act”). Their
secondary challenge to the scheme for the revised cap is that, in its
application to them, it is irrational at common law; but, if the primary claim
fails, the application of the scheme to them will not be irrational so the
secondary challenge will not further be addressed.
13.
In the DA case the appellant mothers contend
(a) that
their entitlement to welfare benefits falls within the ambit of their rights
both under article 1 of protocol 1 (“article 1 p 1”) of the European Convention
on Human Rights (“the Convention”) and under article 8 of the Convention;
(b) that,
in that they have the status of lone parents of children aged under two, they
have the right under article 14 of the Convention to claim that their rights
under article 1 p 1 and article 8 have not been secured without discrimination;
(c) that
under the scheme they are subject to the same treatment as other adults who are
in a relevantly different situation from them and that, unless the same
treatment of them is justified, the law requires them to have different
treatment; and
(d) that
the government has failed to justify their subjection to the same treatment as
those other adults and that therefore it has unlawfully discriminated against
them.
14.
In the DA case the appellant children contend
(a) that
their mothers have an entitlement to welfare benefits which falls within the
ambit of the children’s own rights under article 8;
(b) that,
in that they have the status of children aged under two of lone parents, they
have the right under article 14 to claim that their rights under article 8 have
not been secured without discrimination;
(c) that
under the scheme they are subject to the same treatment as other children who
are in a relevantly different situation from them and that, unless the same
treatment of them is justified, the law requires them to have different
treatment; and
(d) that,
in particular in the light of an alleged breach on its part of article 3 of the
UN Convention on the Rights of the Child 1989 (Cm 1976) (“the UNCRC”), the
government has failed to justify their subjection to the same treatment as
those other children and that therefore it has unlawfully discriminated against
them.
15.
In the DS case the appellant mothers contend
(a)
that their entitlement to welfare benefits falls within the ambit of
their rights both under article 1 p 1 and under article 8;
(b)
that, in that they have the status either of lone parents or, as a
fall-back, of lone parents of children aged under five, they have the right
under article 14 to claim that their rights under article 1 p 1 and article 8
have not been secured without discrimination;
(c)
that under the scheme they are subject to such different treatment in
comparison with other adults, particularly with dual-care parents or with lone
parents all of whose children are aged at least five, that, unless the
different treatment of them is justified, the law requires them to have the
same treatment; and
(d)
that the government has failed to justify their subjection to such
different treatment and that therefore it has unlawfully discriminated against
them, whether directly or indirectly.
16.
In the DS case the appellant children contend
(a)
that they have an interest in the welfare benefits to which their
mothers are entitled and that it falls within the ambit of their own rights
under article 8 or, if not, under article 1 p 1;
(b)
that, in that they have the status of children of lone parents or, in
the case of three of them and as a fall-back, that they have the status of
children aged under five of lone parents, they have the right under article 14
to claim that their rights under article 8 or, if not, under article 1 p 1 have
not been secured without discrimination;
(c)
that under the scheme they are subject to such different treatment in
comparison with other children, particularly children of dual-care parents or
children aged at least five of lone parents, that, unless the different
treatment of them is justified, the law requires them to have the same
treatment; and
(d)
that, in particular in the light of an alleged breach on its part of
article 3 of the UNCRC, the government has failed to justify their subjection
to such different treatment and that therefore it has unlawfully discriminated
against them, whether directly or indirectly.
17.
In response to the above contentions the government concedes only that
the entitlement of the two sets of appellant mothers to welfare benefits falls
within the ambit of their rights under article 1 p 1. It disputes every other
contention.
18.
Unlike the DS case, the DA case has been the subject of
adjudication on the merits in the lower courts. By an order dated 22 June 2017,
[2017] EWHC 1446 (Admin), [2017] PTSR 1266, Collins J upheld the claims of the DA
claimants by declaring that the 2006 Regulations, as amended by the 2016
Regulations, unlawfully discriminated against lone parents of children aged
under two and against children aged under two of lone parents. But, by an order
dated 15 March 2018, [2018] EWCA Civ 504, [2018] PTSR 1606, the Court of Appeal
(Sir Patrick Elias who gave the main judgment and Sir Brian Leveson, President
of the Queen’s Bench Division, who gave a short concurring judgment; McCombe LJ
dissenting) set aside the order of Collins J. In effect the court dismissed the
claims and granted permission to appeal to the Supreme Court.
19.
On 26 March 2018, thus 11 days after the order of the Court of Appeal in
the DA case, Lang J heard the DS case. Mr Drabble QC, on behalf
of the DS claimants, submitted to her that the dismissal of their claims
was not strictly mandated by the Court of Appeal’s decision in the DA
case but he conceded that it placed significant hurdles in their way. In light
of the fact that the decision in the DA case was to be reviewed in the
Supreme Court, he persuaded the judge to dismiss their claims without inquiry
into their merits and to grant a leap-frog certificate under section 12 of the
Administration of Justice Act 1969 to the effect that an application on their
part to the Supreme Court for leave to appeal directly to it would be
justified. In due course such an application was made to this court and
granted. The consequence is that there has been no lower court review of the
evidence filed in the DS case.
20.
Although the law of discrimination is inherently difficult, it is
impossible to avoid the conclusion that, for various reasons, the court’s
examination of the issues raised in these appeals has been unnecessarily
cumbersome and complicated.
(a)
The judgments of each of the five members of the court in the first
benefit cap case, all of alleged relevance, proceed in all for 269 paragraphs
and their combined effect has been a matter of acute and protracted debate in
this court and elsewhere.
(b)
The three judgments of the Court of Appeal in the DA case, now
before this court, proceed for 184 paragraphs.
(c)
The written cases presented to this court in the two appeals by the
three principal parties and the three interveners, all of high legal quality,
proceed across 357 pages.
(d)
The evidence filed in both appeals proceeds across more than 3,000 pages.
(e)
119 authorities are presented to the court for consideration.
(f)
The oral argument has continued for two and a half days.
21.
In the above circumstances the compilation of this judgment has had to
be surgical. Reference to all the arguably relevant evidence and submissions
would have submerged it. As it is, I am disappointed with myself in having
failed to contain it within fewer than 91 paragraphs.
Evidence
22.
The impact of the revised cap has been broadly as follows:
(a)
As at August 2017, the benefits of 68,000 households had been reduced by
reference to the revised cap.
(b)
52,000 (ie 77%) of those households would not have suffered reduction by
reference to the original cap; so the revision of the cap has had a substantial
effect.
(c)
Of the 68,000 households which suffered the revised cap, 49,000 (ie 72%)
were lone parent households.
(d)
Since 90% of lone parents are women, 44,000 (ie 65%) of the households
which suffered the revised cap were lone female parent households.
(e)
Of the 68,000 households which suffered the revised cap, 37,000 (ie 54%)
were lone parent households with a child aged under five and, of those, 17,000
(ie 25% of the total) were lone parent households with a child aged under two.
The cap has therefore had a major impact on the former group, of which the latter
are a significant subgroup.
(f)
Families with multiple children, thus in receipt of higher amounts of
child benefit and child tax credits, are more likely to be capped. As at
February 2018, 74% of capped households (not here differentiated between dual-care
and lone parent households) had at least three children.
23.
Has the revised cap incentivised those on benefits to work? The
government accepts that the statistical evidence is sparse; and it is
inappropriate to address it in detail. It suffices to say:
(a)
In putting forward its expectations for the revised cap in the IA, the
government suggested that 41% of those potentially subject to it would be more
likely to work in order to escape it than those not potentially subject to it.
(b)
But the statistic turns out to mean that the number of those more likely
to work in order to escape the cap is 41% larger than the already small group,
namely only 11% of all capped households, who would have moved into work in any
event. Translated into numbers, it means that only about one capped household
out of 20 such households (ie 5%) was considered likely to move into work in
order to escape it. In relation, however, to that one capped household out of 20,
the appeals require the court to consider whether it was more likely to be a
dual-care household than a lone parent household, in particular a lone parent
household with a child aged under five or indeed aged under two.
24.
So, in relation to incentivisation, the government relies less on
statistics and more on what are said to be the obvious financial advantages of
working. These advantages are scarcely in dispute. Evidence on behalf of the
appellants in the DS case suggests, by way of example in relation to one
of the mothers, that, when capped, her annual household benefits were £20,000
but that, were she to have worked for 16 hours each week earning £17,000 net,
her net annual income would have risen to £32,000 because her benefits would
have been reduced by only £5,000.
25.
Irrespective, however, of the financial advantages for a parent who
works hours sufficient to claim working tax credit and thus to escape the cap,
how practicable is it for a lone parent, in particular a lone parent of
a child aged under five or indeed aged under two, to do so?
26.
(a) Is it reasonable to divert the lone parent from caring for
such
children?
(b) Is it
reasonable to take her out of the home if she is a nursing mother?
(c) In
any event can she find local part-time work with set hours at a reasonable time
during the day?
(d) Can
she find a carer in a practicable location who can offer care at the necessary
times and, if she has to pay the carer, can she afford to do so?
(e) As
state regulations about minimum staff ratios appear to recognise, do children
aged under two need more intensive and therefore more expensive care than older
children?
(f) If
the lone parent also has a number of other, older children, is it even less
practicable for her to work?
27.
Central to the government’s response to these questions is its
provision, on certain conditions, of free childcare for 30 hours per
week during term-time under the Childcare (Early Years Provision Free of
Charge) (Extended Entitlement) Regulations 2016 (S1 2016/1257). The IA stressed
its availability and estimated it to be worth about £5,000 pa per child. The
trouble is that the provision extends to free care only for three and four year
olds and also, albeit limited to 15 hours per week, for certain two year olds
in families in receipt of specified benefits. This, no doubt, explains why in
the DA case the appellants are members of families which include a child
aged under two. Mr Wise QC on their behalf therefore points to the grave
difficulty which confronts lone parents in that group in accessing care so that
they can work. To this the government responds that the financial advantages of
escaping the cap by work are so substantial, as explained above, that these
lone parents, if in work, can afford to pay for childcare out of their overall
income inclusive of benefits and that they are substantially assisted in doing
so in the computation of their working tax credit.
28.
But Mr Wise draws a wider point from the limited extent of the provision
for free childcare: it betokens (he says) a considered governmental conclusion
that it is not in the interests of lone parents of children aged under two, nor
in particular in the interests of those children, that their parents should be
diverted from caring for them.
29.
Here Mr Wise and Mr Drabble join in making an allied point. It relates
to the conditions attached to the receipt of income support, which is
likely to be a major constituent of the welfare benefits paid to a lone parent.
The aim of the conditions is to make it easier for her to find work when (but
only when) her youngest child has attained the age of five. One condition
relates to the period when she has a child aged one or two and it requires her
to attend work-focussed interviews about every six months. Another relates to
the period when she has a child aged three or four and it requires her to
engage in some training or other work-related activity in preparation for
future work. The sanction for failing to comply with a condition is a reduction
in income support. Once all her children have attained the age of five, in
other words are of school age, the lone parent not in work must claim
jobseeker’s allowance instead of income support and, to that end, must
demonstrate that she is available to do a limited amount of work and that she
is actively seeking it. The point made on behalf of all the appellants is that
at the heart of the carefully calibrated regime of attaching conditions to the
receipt by lone parents of income support is a recognition by the government
that it is wrong to expect them actually to work until all their children have
attained school age; and that to cap their benefits for failure to work before
all their children have attained school age flies in the face of that policy
decision.
30.
The government’s defence of its application of the revised cap to lone
parents in the circumstances identified in these appeals relates in significant
part to the provision for the possible making to them of a Discretionary
Housing Payment (“a DHP”). Provision for DHPs is made in section 69 of the
Child Support, Pensions and Social Security Act 2000 and in regulations made
under it. A power to make a DHP is conferred on local authorities and, as the
title implies, it must relate to housing costs. So, when a cap requires a local
authority to reduce housing benefit below, or further below, the level of the
recipient’s rent, there is the facility for it to make a DHP to cover the
balance. Central government provides local authorities both with an annual fund
out of which to make DHPs and with a guidance manual in relation to their
distribution of them. A broad discretion is conferred upon the local
authorities. There is no appeal against a refusal to make a DHP but there is,
with whatever degree of difficulty, an opportunity to challenge it by way of
judicial review. DHPs are intended to cover many more situations of hardship
than those created by the cap, including in particular hardship created by the
provisions addressed by this court in R (MA) v Secretary of State for Work
and Pensions [2016] UKSC 58, [2016] 1 WLR 4550 (“the bedroom tax case”);
and it is clear that they are mainly intended to alleviate temporary hardship
and, for those subject to the cap, are intended, in the words of the IA, to
manage “the transition for various customers whilst they make the necessary
changes to adapt to the application of the benefit cap”. The manual however now
includes within a list of possible recipients a household which “contains … a
child … under two years of age where childcare is a barrier to getting work”.
31.
In the light in particular of the provision within the scheme for the
exercise of discretion on the part of local authorities in the making of DHPs,
how far should this court rely on them for alleviation of the worst effects of
the cap on lone parents within the appellant groups? The government refers
powerfully to the fact that five out of the six appellant mothers in these
appeals have at one stage been in receipt of DHPs. The problem is that, as the
government accepts, there is limited data about the extent to which capped
households are rescued by DHPs. Both the appellants in the DA case and
Shelter, as an Intervener in the appeals, present evidence of divergence in
(a)
the degree of complexity, sometimes bewildering, with which local
authorities surround the making of an application for a DHP;
(b)
the time which they take to process it;
(c)
the period for which, subject only to some further award, they agree to
make a DHP in order to alleviate a cap, awards of indefinite duration being
unknown and most being subject to a maximum of 12 weeks; and
(d)
the extent to which any award of a DHP is large enough to cover the
shortfall in housing benefit imposed by the cap.
Similar concerns led Henderson J in Burnip v Birmingham
City Council [2012] EWCA Civ 629, [2013] PTSR 117, at paras 46 and 47, to
reject the attempt by local authorities to rely on DHPs as justifying less
favourable treatment of the disabled in the computation of housing benefit.
32.
Of the other two aims of government in introducing the revised cap, that
of making fiscal savings has scarcely been pressed. The IA forecast that
in the year just past (2018-19) the revised cap would save the state £110m. But
the figure did not include the operational cost of implementing the cap nor the
cost of the support, in particular through DHPs, otherwise provided to capped
claimants, all now estimated at £68m this year. In context the net figure
appears to be 0.03% of the state’s overall annual expenditure on welfare
benefits for those of working age.
33.
Does the revised cap inflict poverty on those subject to it? The
answer is hotly contested. But since the government cannot sensibly argue that
the computation of welfare benefits is intended to provide a family with more
than it needs, it follows that a reduction of those benefits will provide it
with less than it needs. Of course the concept of needs is to some extent
elastic: they can be assessed with somewhat greater or lesser stringency. But
the government does not seek to argue that the lower figures set for the
revised cap have been reached by reference to any scale of needs. Equally, in a
speech in 2016 relied on by the government, Mr Cameron, then the Prime
Minister, acknowledged that the effect of welfare benefits was “to push
people’s incomes just above the poverty line”. It follows that a substantial
reduction in them pulls their incomes well down below the poverty line. In my
view there are sound reasons for accepting the evidence given by the Child
Poverty Action Group in the DS case that the effect of the cap is to
reduce a family well below the poverty line, judged by the generally accepted
measure of less than 60% of median UK income equivalent to the size of the
household.
34.
There ensues striking evidence adduced on behalf of the DA
appellants about the effect on children of an early life of poverty. Professor
Atkinson, the former Children’s Commissioner for England, echoing evidence from
Jonathan Bradshaw, Professor of Social Policy at York University, offers this
summary:
“Living in poverty has a serious
impact on children’s lives, negatively affecting their educational attainment,
health, and happiness as well as having long-term adverse consequences into
adulthood … Even a few years of poverty can have negative consequences for a
child’s development and is especially harmful from the ages of birth to five.”
Issue 1: The ambit of article 8
35.
In M v Secretary of State for Work and Pensions [2006] UKHL 11,
[2006] 2 AC 91, Lord Nicholls observed in para 14 that
“the more seriously and directly
the discriminatory provision or conduct impinges upon the values underlying the
particular substantive article, the more readily will it be regarded as within
the ambit of that article …”
It cannot seriously be disputed that the values
underlying the right of all the appellants to respect for their family life
include those of a home life underpinned by a degree of stability, practical as
well as emotional, and thus by financial resources adequate to meet basic
needs, in particular for accommodation, warmth, food and clothing.
36.
In Petrovic v Austria (2001) 33 EHRR 14 the European Court of
Human Rights (“the ECtHR”) held that a refusal to pay a father, as opposed to a
mother, a parental leave allowance fell within the ambit of his rights under
article 8 because, as explained in para 27, the allowance enabled a parent to
stay at home to look after the children and so affected the way in which family
life was organised. In Okpisz v Germany (2006) 42 EHRR 32 it held that a
decision no longer to pay child benefits to certain aliens fell within the same
ambit. In the bedroom tax case, cited at para 30 above, this court held at para
49 and unanimously, that the so-called bedroom tax, by which housing benefit
was capped by reference to rules about the number of bedrooms which a family
needed, fell within the same ambit. Earlier, in the first benefit cap case, the
court had no need to consider whether the original cap fell within the ambit of
article 8. Nevertheless the government relies on doubts about it which Lord
Reed expressed in para 79. The difficulty is that, as the Intervener, Just
Fair, suggests, Lord Reed there seems to have equated the ambit of article 8
with interference with rights under it, which, with respect, may not be the
usual analysis.
37.
In the DA case Collins J and the Court of Appeal both held that
the revised cap fell within the ambit of the rights under article 8 of the
claimant mothers and children. I have no doubt that they were correct - and of
course the same applies to the claimants in the DS case. The effect of
the provisions for the cap may be that the mother goes to work and escapes it;
if so, her children below school age have to be cared for in some other way. Or
the effect may be that the cap is imposed, with a variety of possible results:
that, as expressly suggested by the government to be an option, the family, no
doubt with great difficulty, has to move to cheaper accommodation; or that the
mother builds up rent arrears and so risks eviction or otherwise falls into
debt; or that, like one of the DA mothers, she has to cease buying meat
for the children; or, as in cases recorded by Shelter, that she has to go
without food herself in order to feed the children or has to turn off the
heating. Whatever their individual effect, provisions for a reduction of
benefits to well below the poverty line will strike at family life.
Issue 2: Status
38.
The government argues, if faintly, that in the DA case the Court
of Appeal was wrong to conclude that the claimants, in other words both the
lone parents and the children, had a “status” on the ground of which they might
seek to complain under article 14 of discrimination in the enjoyment of their
substantive Convention rights. The government submits, for example, that the
parents are women, who admittedly enjoy a status under article 14, and that it is
therefore inappropriate for them to seek to shoehorn themselves into some other
status. The submission is difficult to understand: it is of the essence of the
parents’ case in the DA appeal and of what I regard as a significant
part of their case in the DS appeal that they are lone parents of
children aged under two or under five, and that the discrimination lies in the
difference between their situation and that of others subject to the cap. The
government proceeds to submit that the situation of the appellants can be
transitory in that a parent may not be a lone parent for ever and that a child
will not remain aged under two (or under five) for long. But there is no ground
for concluding that a status for the purpose of article 14 has to be permanent.
Some of the examples of status given in article 14 itself can change -
religion, political opinion, even sex.
39.
In Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250, this court referred in para 21 to previous
authority that the concept of status generally comprised personal
characteristics and that inquiry into it should concentrate “on what somebody
is, rather than what he is doing or what is being done to him”; it observed in
para 22 that, if the complaint of discrimination fell within the ambit of a
Convention right, the ECtHR was reluctant to conclude that the complainant had
no relevant status; and it held in para 23 that, as a “severely disabled child
in need of lengthy in-patient hospital treatment”, the appellant’s deceased son
had had a status within the meaning of article 14. In R (Stott) v Secretary
of State for Justice [2018] UKSC 59, [2018] 3 WLR 1831, this court recently
conducted a detailed examination of the meaning of “other status” in article
14. In the event all members of the court other than Lord Carnwath confirmed
that its meaning was broad; and they proceeded to hold that a prisoner subject
to a particular type of sentence thereby had the status which under article 14
enabled him to allege that its effect had been to discriminate against him in
the enjoyment of his rights under article 5 of the Convention. The present
appellants assert statuses more obviously composed of personal characteristics
than were those recognised in the cases of Mathieson and Stott;
and I have no doubt that all of them have the requisite status in the terms set
out in paras 13(b), 14(b), 15(b) and 16(b) above.
Issue 3: Formulation of the complaints
40.
In R (A) v Secretary of State for Health [2017] UKSC 41, [2017] 1 WLR 2492, I noted in para 29 that the claimants complained that they should
have been treated in the same way as a specified group but in para 30
that they had turned their argument inside out in complaining alternatively
that they should have been treated in a different way from another
specified group. I added in para 31 that in that case the alternative
presentation added only an extra level of unwelcome complexity. Nevertheless
the concept of discrimination is, as Sir Patrick said in para 17 of his
judgment in the DA case, underpinned by the fundamental principle not
only that like cases should be treated alike but also that different cases
should be treated differently. And in some cases, unlike the A case but
exemplified by that in the ECtHR of Thlimmenos v Greece (2000) 31 EHRR
12, the natural formulation of the complaint is indeed that the complainants
have been treated similarly to those whose situation is relevantly different,
with the result that they should have been treated differently.
41.
I have sought to describe in paras 13(c), 14(c), 15(c) and 16(c) above
the way in which the various appellants before the court formulate their
complaints of discrimination.
42.
The DA appellants primarily complain that, in applying the
revised cap (a) to lone parents of children aged under two and (b) to children
aged under two of lone parents (together, “the DA cohorts”), the
government has treated them similarly to others to whom it has applied
the cap but whose situation is relevantly different from theirs. So the DA
appellants say that, unless the similar treatment can be justified, the
government should have treated them differently by exempting them from
the cap.
43.
But, like the appellants in the A case, the DA appellants
can also turn their complaint inside out. They can point to the exemption from
the cap granted to those in receipt of a carer’s allowance (paid to those who
for at least 35 hours a week care for an adult on specified benefits) and of a
guardian’s allowance (paid to those who bring up a child of deceased parents).
So in the alternative the DA appellants can complain that, in applying
the cap to themselves, the government has treated them differently from
carers and guardians to whom it has not applied the cap but whose situation is
relevantly similar to theirs. So, the DA appellants can say that, unless
the different treatment can be justified, the government should have treated
them similarly by exempting them from it.
44.
Although the alternative formulation of the complaint of the DA appellants
has arguable merit, I have no doubt that the natural way of analysing their
complaint accords with their primary formulation of it: it is of discrimination
of the type explained in the Thlimmenos case, namely that, by subjecting
them to the revised cap, the government has treated the DA cohorts
similarly to a specified group whose situation is relevantly different
from theirs and thus that, subject to justification, it should have treated
them differently from it.
45.
I confess that I have found it less easy to understand the way in which
the DS appellants formulate their complaint. They contend that the
revised cap represents discrimination, both direct and indirect, which violates
the Convention rights of all lone parents (and/or women because 90% of lone
parents are women) and of all children of lone parents. A group of all lone
parents would of course include lone parents with children all aged between
five and 18, ie all of school age; and so too a group of all children of lone
parents would include children of school age. But the evidence of the DS
appellants has scarcely been directed to the effect of the cap on households
with children all of school age. Mr Drabble is no doubt entitled, by reference
to the statistics set out in para 22 above, to complain of the particular
effect of the cap on all lone parents and thus on women; but, insofar as they
are lone parents of children all of school age, it is already obvious that the
government can justify it. In my view the complaint of the DS appellants
which the court should proceed to address is their fall-back complaint, namely
that the cap violates the Convention rights (a) of all lone parents with a
child aged under five and (b) of all children aged under five of lone parents
(together, “the DS cohorts”). Although, for reasons unclear, the DS
appellants formulate their fall-back complaint only reluctantly in accordance
with the Thlimmenos case, such seems to me to be, as in the DA
case, its natural formulation, namely that, by subjecting them to the revised
cap, the government has treated the DS cohorts similarly to a specified
group whose situation is relevantly different from theirs and thus that,
subject to justification, it should have treated them differently from it.
Issue 4: Comparators
46.
The question then arises: what is the specified group which the
government is said to have treated similarly to the DA and the DS
cohorts? As here, the identification of a comparator group can be difficult. In
the present case is the proper comparator
(a)
dual-care parents with a child aged under two or under five; or
(b)
lone parents without a child aged under two or under five; or
(c)
all others subjected to the revised cap?
All three answers are tenable. Collins J favoured
comparison with the group at (c); and McCombe LJ found no reason to disagree
with him - see paras 155, 156 and 173 of his judgment. Sir Patrick and Sir
Brian favoured comparison with the group at (b) - see paras 115 and 183 of
their judgments. Mr Drabble commends comparison with the group at (a). This
court’s experience is that, of the various tenable comparators in any
particular case, adroit advocates will commend the one which would best serve
their purpose in relation to the issues which follow. In AL (Serbia) v
Secretary of State for the Home Department [2008] UKHL 42, [2008] 1 WLR 1434, Lady Hale said at para 28:
“… so much argument has been
devoted in this case, and in too many others, to identifying the precise
characteristics of the persons with whom these two young men should be
compared. This is an arid exercise.”
47.
Blessed is simplicity. The complaint made by the appellants is that
their cohorts should not have been subjected to the revised cap. The natural
corollary is, as Mr Wise contends, that they are comparing their cohorts with
all others subjected to the cap: so the natural comparator is the group at (c).
Nevertheless, in arguing that there has been an objectionable similarity of
treatment between the DA and the DS cohorts, on the one hand, and
all others subjected to the cap, on the other, the appellants may seek to
highlight their objection by reference to subgroups, such as those at (a) and
(b), whose situations are alleged to be relevantly different.
Issue 5: Different situations
48.
In DH v Czech Republic (2008) 47 EHRR 3 the Grand Chamber of the
ECtHR said in para 175 that “discrimination means treating differently, without
an objective and reasonable justification, persons in relevantly similar
situations”. Re-cast to cover the type of discrimination recognised in the Thlimmenos
case, the proposition is that it means treating similarly, without an objective
and reasonable justification, persons in relevantly different situations. In Carson
v United Kingdom (2010) 51 EHRR 13 the Grand Chamber explained in para 61
what was meant by the absence of objective and reasonable justification: “in
other words, if it does not pursue a legitimate aim or if there is not a reasonable
relationship of proportionality between the means employed and the aim sought
to be realised”.
49.
Clarity of language aids clarity of thought. It is worthwhile to stress,
as the court did in the Mathieson case in para 24, that the frequent
reference to “justified discrimination” in the domestic discussion of the
concept is, as a matter of law, the expression of a contradiction in terms. As
the terminology long favoured by the Grand Chamber shows, justification
negatives the very existence of discrimination.
50.
In the DH case the Grand Chamber proceeded to explain in para 177
that, once the applicant had shown a difference in treatment of persons in
relevantly similar situations, the burden of proof lay on the state to
establish that it was justified; and in para 178 that what shifted the burden
on to the state was “prima facie evidence”.
51.
There is clear prima facie evidence that - in the terms of the re-cast
proposition - the DA and the DS cohorts are in a relevantly
different situation from those others who have been treated similarly to them
by their common subjection to the revised cap. For it appears
(a)
that, in the case of a lone parent of a child below school age, in
particular of a child below the age of two, it is contrary to the interests
both of herself, of her child and of the family as a whole that she should in
effect be constrained to work also outside the home;
(b)
that, by the conditions which it has attached to the receipt of income
support, the government has itself decided that it is contrary to their
interests;
(c)
that, irrespective of whether it is contrary to their interests for her
to be so constrained, the extra difficulty, beyond that faced by others
subjected to the cap, which confronts such parents in finding not only suitable
work but also suitable childcare is plain;
(d)
that, in the case of a child aged under two, the absence of any free
childcare further increases that difficulty;
(e)
that the incidence of failure of those represented by the DA and
the DS cohorts to escape the cap, namely in the case of the wider DS
cohort 54%, and in the case of the narrower DA cohort 25%, of all those
who suffer it, demonstrates its disproportionate impact upon them; and
(f)
that, while the effect of the cap on all households who suffer it is to
reduce their income below the poverty line, poverty has a disproportionate
effect on the young children within these cohorts, stunting major aspects of
their development in the long term as well as in the short term.
Issue 6: Focus of justification
52.
In the first benefit cap case Lord Reed said in para 14:
“… the cap … affects a higher
number of women than men because of differences in the extent to which the
sexes take responsibility for the care of children following the break-up of
relationships. Whether that differential effect has an objective and reasonable
justification depends on whether the legislation governing the cap, which
brings about that differential effect, has a legitimate aim and is a
proportionate means of realising that aim.”
53.
May I suggest, with respect, that Lord Reed may there have identified
the focus of the justification too widely? He described it as “the legislation
governing the cap”. In A v Secretary of State for the Home Department
[2004] UKHL 56, [2005] 2 AC 68, Lord Bingham of Cornhill stated in para 68:
“What has to be justified is not
the measure in issue but the difference in treatment between one person or
group and another.”
In the first benefit cap case Lady Hale in para 188 of
her dissenting judgment cited Lord Bingham’s statement and concluded:
“It is not enough for the
Government to explain why they brought in a benefit cap scheme. That can
readily be understood. They have to explain why they brought in the scheme in a
way which has disproportionately adverse effects on women.”
54.
I conclude that what the government has to justify in the present case
is its failure to amend the 2006 Regulations so as to provide for exemption of
the DA and DS cohorts from the revised cap. The Secretary of
State does not appear to challenge this conclusion.
Issue 7: Test of justification
55.
This court has been proceeding down two different paths in its search
for the proper test by which to assess the justification under article 14 for
an economic measure introduced by the democratically empowered arms of the
state. In retrospect this duality has been unhelpful. I regret having
contributed to it.
56.
The considerations which have informed the mapping of both paths is best
explained by two citations. First, from the judgment of Lord Hope of Craighead
in In re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] AC 173,
para 48:
“Cases about discrimination in an
area of social policy … will always be appropriate for judicial scrutiny. The
constitutional responsibility in this area of our law resides with the courts.
The more contentious the issue is, the greater the risk that some people will
be discriminated against in ways that engage their Convention rights. It is for
the courts to see that this does not happen. It is with them that the ultimate
safeguard against discrimination rests.”
Second, from the judgment of Lord Reed in the first
benefit cap case:
“92. Finally, it has been
explained many times that the Human Rights Act 1998 entails some adjustment of
the respective constitutional roles of the courts, the executive and the
legislature, but does not eliminate the differences between them: differences,
for example, in relation to their composition, their expertise, their
accountability and their legitimacy. It therefore does not alter the fact that
certain matters are by their nature more suitable for determination by
Government or Parliament than by the courts. In so far as matters of that
nature have to be considered by the courts when deciding whether executive
action or legislation is compatible with Convention rights, that is something
which the courts can and do properly take into account, by giving weight to the
determination of those matters by the primary decision-maker.
93. That consideration is
relevant to these appeals, since the question of proportionality involves
controversial issues of social and economic policy, with major implications for
public expenditure. The determination of those issues is pre-eminently the
function of democratically elected institutions. It is therefore necessary for
the court to give due weight to the considered assessment made by those
institutions ...”
57.
Lord Reed then completed para 93 by adding
“Unless manifestly without
reasonable foundation, their assessment should be respected.”
58.
The appropriateness of an inquiry into whether the adverse effects of
certain measures are manifestly without reasonable foundation is firmly rooted
in the jurisprudence of the ECtHR. In James v United Kingdom (1986) 8 EHRR 123, in which it rejected the challenge to the legislation in England and
Wales for leasehold enfranchisement, that court, in plenary session, held at
para 46 that it should respect the judgment of the national legislature as to
what was in the public interest unless it was manifestly without reasonable
foundation. And in Stec v United Kingdom (2006) 43 EHRR 47, para 52,
which it repeated word for word in Carson v United Kingdom (2010) 51 EHRR 13, para 61, the Grand Chamber, addressing complaints of discrimination
arising out of the rules for entitlement to social security benefits, held that
it should respect the national legislature’s determination of where the public
interest lay when devising economic or social measures unless it was manifestly
without reasonable foundation. It explained that this more benign approach to
the establishment of justification for the adverse effects of a rule flowed
from the margin of appreciation which was wide in this area of decision-making.
59.
I now accept that the weight of authority in our court mandates inquiry
into the justification of the adverse effects of rules for entitlement to
welfare benefits by reference to whether they are manifestly without reasonable
foundation.
60.
In Humphreys v Revenue and Customs Comrs [2012] UKSC 18, [2012] 1 WLR 1545, the court rejected a complaint that a rule for entitlement to child
tax credit discriminated against men on the basis that the different treatment
of men which resulted from the rule was not manifestly without reasonable
foundation. In her judgment, with which the other members of the court agreed,
Lady Hale said in para 19 that in the context of state benefits the normally
strict test for justification of the effect of a rule alleged to be
discriminatory on grounds of sex “gives way”; but she added in para 22 that it
did not follow that such a rule should escape careful scrutiny.
61.
The possible mapping of a different path emerged in the judgment of Lord
Mance in In re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill
[2015] UKSC 3, [2015] AC 1016. But the subject-matter was not the entitlement
to welfare benefits. It was a proposed bill in the National Assembly of Wales
for costs incurred by NHS Wales to be cast upon identified groups. The court’s
decision was that the bill fell outside the assembly’s legislative competence.
But Lord Mance proceeded to consider, in passing, whether the bill would have
infringed the rights of the groups under article 1 p 1. This required him to
consider how the court should assess whether a deprivation of property was
justified. In this regard he referred in para 45 to the four stages of a
conventional inquiry into justification. In para 52 he held that the first
three stages (which require the establishment of a legitimate aim of the
measure, of a rational connection of the measure to the aim and of an inability
to achieve it less intrusively) could be addressed by whether the contentions
in support of the measure were manifestly without reasonable foundation; but
that the fourth stage (which requires the establishment of a fair balance
between all the interests in play) fell for decision by the court, although it
might pay significant respect to the balance favoured by those responsible for
the measure.
62.
A month after delivery of its judgments in the Wales case the
court delivered its judgments in the first benefit cap case. It proceeded on
the agreed basis that, if the analysis reached the stage at which the effect of
the impugned provisions fell to be justified, the appellants had to establish
that it was manifestly without reasonable foundation; and, by a majority, the
court held that they had failed to satisfy this agreed criterion. In their
dissenting judgments Lady Hale and Lord Kerr duly applied the agreed criterion,
albeit with opposite results. But in para 209 of her judgment Lady Hale
referred to para 52 of Lord Mance’s judgment in the Wales case and
observed that a benefit cap closely resembled a deprivation of property; and in
para 210 she floated the idea that, in the absence of agreement upon the
criterion, it might have been possible to limit its application to the stages
of the conventional inquiry referable to the aim of the provisions and to
exclude its application to the final stage referable to its fair balance and
overall proportionality.
63.
Almost two years later the court delivered its judgments in the bedroom
tax case, cited in para 30 above. Two of the three conjoined appeals concerned
claims that the effect of rules for the computation of housing benefit was to
discriminate against disabled people in the enjoyment of their rights under
article 8 and/or article 1 p 1. Giving the main judgment, Lord Toulson recorded
in para 28 the primary contention of the claimants in the first appeal as
having been that the Court of Appeal had erred in asking whether the treatment
of which they complained was manifestly without reasonable foundation. In paras
29 to 38 he then at length set out reasons in support of his conclusion, in
which all the other members of the court concurred, that the Court of Appeal
had not erred when, in assessing justification for the effect of the rules on
the claimants, it had asked itself that single question.
64.
Several months after delivery of the judgments in the bedroom tax case,
the court delivered its judgments in the A case cited in para 40 above.
The case concerned not welfare benefits but the government’s refusal, partly on
grounds of cost, to exercise its power to require the NHS in England to provide
free abortion services to women usually resident in Northern Ireland. One of
the arguments on behalf of the women was that the effect of its refusal was to
discriminate against them in the enjoyment of their rights under article 8 of
the Convention. I gave a judgment, with which Lord Reed and Lord Hughes agreed,
in which I rejected the argument. Lady Hale and Lord Kerr gave judgments in
which they upheld it. It was in the course of my judgment, in para 33, that I
cited the judgment of Lord Mance in the Wales case and asserted it to
have become clear that, of the four aspects of an inquiry into justification
under the Convention of the effect of a measure of economic or social policy,
the fourth, relating to a fair balance, fell to be answered by the court for
itself and not by reference to whether it was manifestly without reasonable
foundation.
65.
We may put aside consideration of whether the government decision
impugned in the A case was of a character, unlike its rules of
entitlement to welfare benefits, which made my suggested approach to its justification
sound in law. For, even if so, I expressed myself too widely. Even though none
of the other members of the court, including those in dissent, took issue with
what I said, I take sole responsibility for it. Probably also emboldened by
Lady Hale’s observations in the first benefit cap case, I reached too quickly
for the observations of Lord Mance in the Wales case. For by then there
was - and there still remains - clear authority both in the Humphreys
case and in the bedroom tax case for the proposition that, at any rate in
relation to the government’s need to justify what would otherwise be a
discriminatory effect of a rule governing entitlement to welfare benefits, the
sole question is whether it is manifestly without reasonable foundation. Let
there be no future doubt about it.
66.
How does the criterion of whether the adverse treatment was manifestly
without reasonable foundation fit together with the burden on the state to
establish justification, explained in para 50 above? For the phraseology of the
criterion demonstrates that it is something for the complainant, rather than
for the state, to establish. The rationalisation has to be that, when the state
puts forward its reasons for having countenanced the adverse treatment, it
establishes justification for it unless the complainant demonstrates that it
was manifestly without reasonable foundation. But reference in this context to
any burden, in particular to a burden of proof, is more theoretical than real.
The court will proactively examine whether the foundation is reasonable; and it
is fanciful to contemplate its concluding that, although the state had failed to
persuade the court that it was reasonable, the claim failed because the
complainant had failed to persuade the court that it was manifestly unreasonable.
Issue 8: Content of UNCRC rights
67.
Article 3 of the UNCRC provides:
“1. In all actions
concerning children, whether undertaken by … courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a
primary consideration.”
A move is afoot, exemplified by Lord Kerr’s judgment in
the first benefit cap case at paras 247 to 257, for UK courts to treat the
UNCRC, which the UK has ratified, as being, exceptionally, part of our domestic
law. At present, however, it forms no part of it.
68.
What does the concept of the best interests of the child in article 3.1
encompass? In the Mathieson case, at para 39, this court approved a
suggestion which Lord Carnwath had made in para 105 of the first benefit cap
case to the effect that authoritative guidance was to be found in para 6 of
General Comment No 14 (2013) of the UN Committee on the Rights of the Child.
There the committee had suggested that the concept had three dimensions:
(a)
a substantive right of the child to have his or her best interests
assessed as a primary consideration when different interests are being
considered in order to reach a decision on the issue at stake;
(b)
an interpretative principle, irrelevant to the present appeals; and
importantly;
(c)
a rule of procedure that, whenever a decision is to be made that will
affect an identified group of children, the decision-making process must
include an evaluation of the possible impact of the decision on them.
69.
In the light in particular of the Mathieson case, the government
cannot deny that the committee’s analysis is authoritative guidance in relation
to the dimensions of the concept in article 3.1. It can submit only, and
correctly, that the guidance is not binding even on the international plane and
that, while it may influence, it should, as mere guidance, never drive a
conclusion that the article has been breached.
70.
The UNCRC also provides:
(a)
under article 26(1) that “States Parties shall recognize for every child
the right to benefit from social security … and shall take the necessary
measures to achieve the full realization of this right in accordance with their
national law”;
(b) under
article 27(1) that “States Parties recognize the right of every child to a
standard of living adequate for the child’s physical, mental, spiritual, moral
and social development”; and
(c) under
article 27(3), having at (2) cast upon parents the primary responsibility for
securing living conditions necessary for their child’s development, that
“States Parties, in accordance with national conditions and within their means,
shall take appropriate measures to assist parents … to implement this right and
shall in case of need provide material assistance … particularly with regard to
nutrition, clothing and housing”.
Issue 9: Relevance of UNCRC rights
71.
The ECtHR has made it clear that, where relevant, the content of another
international convention, in particular one relating to human rights such as
the UNCRC, should inform interpretation of the Convention: Neulinger v
Switzerland (2010) 54 EHRR 1087, paras 131 and 132.
72.
It follows that, when relevant, the content of the UNCRC can inform
inquiry into the alleged violation of article 14 of the Convention, when taken
with one of its substantive rights.
73.
But in what circumstances is any breach of article 3.1 of the UNCRC
relevant to an alleged violation of article 14? The question was addressed by
each of the five members of this court in the first benefit cap case, in which
the suggested violation of article 14 lay in the cap’s alleged discrimination against
women in the enjoyment of their right to possession of welfare benefits under
article 1 p 1. The answers were as follows:
(a)
Lord Reed assumed, rather than held, in para 88 that the cap breached
article 3.1 of the UNCRC but held at para 89 that such breach was irrelevant to
the alleged discrimination against women.
(b)
Lord Carnwath held in paras 122 to 128 that the cap did breach the
article but held in paras 125 to 131 that such breach was irrelevant to the
alleged discrimination.
(c)
Lord Hughes held in para 146 that any such breach was irrelevant to the
alleged discrimination and in paras 148 to 155 that in any event the cap did
not breach the article.
(d)
Lady Hale held in para 224 that any breach of the article was relevant
to the alleged discrimination and in paras 226 to 229 that the cap did breach
it.
(e)
Lord Kerr, like Lady Hale, held in para 262 that the cap did breach the
article and in paras 263 to 268 that the breach was relevant to the alleged
discrimination.
74.
In the present case the complaint of discrimination differs from the
complaint in the first benefit cap case. The adult victims of the alleged
discrimination are now cast not merely as women but as lone parents of children
below school age. Moreover these children are now cast as further victims of it
in their own right. And, although the lone parents repeat their complaint of
discrimination in the enjoyment of their rights under article 1 p 1 of the
Convention, both they and their children now complain of it in relation to the
enjoyment of their respective rights to respect for their family life under
article 8.
75.
In explaining in the first benefit cap case that a breach, if any, of
article 3.1 was irrelevant to the alleged discrimination, Lord Reed, Lord
Carnwath and Lord Hughes each stressed in the paragraphs cited above that in
their view the alleged discrimination could not be said to be directed against
children. It is clear that the government cannot import their reasoning into
the present proceedings. Equally it undertakes a mammoth task in maintaining
the argument that, in setting the terms of the revised cap, it was not taking
an action “concerning children” within the meaning of article 3.1. If valid in
relation to the revised cap, the argument would have been valid in relation to
the original cap. But it was rejected by Lord Carnwath, Lady Hale and Lord
Kerr; and it was specifically upheld neither by Lord Reed nor by Lord Hughes.
In para 107 Lord Carnwath referred further to General Comment No 14, namely to
para 19 in which the committee explained that the duty under article 3.1
applies to all decisions on the part of public authorities which directly or
indirectly affect children.
76.
Insofar as in the present appeals the children themselves claim a
violation of rights of their own under article 14, taken with article 8, their
rights should be construed in the light of the UNCRC as an international
convention which identifies the level of consideration which should have been
given to their interests before subjecting their households to the revised cap.
77.
But can the lone parents themselves also claim that their own rights
under article 14, taken with article 8, must be construed in the light of the
provision in the UNCRC for consideration of their children’s interests? The
interests of the lone parents in play in the present appeals are
indistinguishable from the interests of their children below school age. Their
claim is as parents: so, without their children, it would not exist. Indeed
their claim is as lone parents: so responsibility for their children in effect
rests solely upon them. And their claim is to defend furtherance of their
family life from the effects of a cap on benefits specifically computed by
reference to the needs of their children and themselves taken together. Never
more apt than to the present appeals is the observation of Lady Hale in Beoku-Betts
v Secretary of State for the Home Department [2008] UKHL 39, [2009] AC 115,
in para 4 that:
“The right to respect for the
family life of one necessarily encompasses the right to respect for the family
life of others, normally a spouse or minor children, with whom the family life
is enjoyed.”
78.
The claims of all the appellant cohorts under article 14, taken with
article 8, therefore require the court to proceed to assess whether, in setting
the terms of the revised cap, the government breached article 3.1 of the UNCRC.
Were the court to hold that it had done so, what would the effect of it be? The
overarching inquiry is whether its decision not to exempt the appellant cohorts
from the cap was manifestly without reasonable foundation. As McCombe LJ
observed, albeit more forcefully, in para 178 of his dissenting judgment in the
DA case, a foundation for the decision not made in substantial compliance
with article 3.1 might well be manifestly unreasonable.
Issue 10: Breach of UNCRC rights
79.
In deciding upon the terms of the revised cap, did the government have
regard, as a primary consideration, to the best interests of children below
school age of lone parents and did it evaluate the possible impact of its
decision upon them?
80.
In answering this question within its overarching inquiry into the
alleged violation of Convention rights, the court can, without constitutional
impropriety, have regard to Parliamentary materials which explain the
background to the government’s decision and in particular its policy
objectives: Wilson v First County Trust Ltd (No 2) [2003] UKHL 40,
[2004] 1 AC 816, paras 61 to 66.
81.
It is worthwhile to preface an attempted answer to the question by
adverting to two features of the Parliamentary discussion of the Bill which
introduced the original cap, both briefly noted by Lord Reed in his judgment in
the first benefit cap case at paras 29 and 40.
(a)
In May 2011 Ms Buck MP tabled an amendment before the Public Bill
Committee of the House of Commons to the effect that households should be
exempt from the cap if childcare costs outweighed earnings. She referred in
particular to lone parents with four or five children, of whom one was aged
under five. The government opposed the amendment, which Ms Buck withdrew.
(b)
In November 2011 the Lord Bishop of Ripon tabled an amendment before the
Lords’ Grand Committee that lone parents of children aged under five should be
exempt from the cap. He said:
“The exemption of lone parents
with children under five is particularly important. The current system …
recognise[s] that those additional commitments make it hard for them to move
into work and, indeed, recognise[s] that they are not expected to seek work …
it seems unreasonable to place a cap on the benefits that they should receive
when we acknowledge that they should not be put under pressure to seek work.”
The government opposed the amendment on the basis that
encouragement to work did not equate to a requirement to work and that there
had to be a limit to the amount of a household’s benefits. In the end the
bishop did not press his amendment.
82.
On 8 September 2015, following presentation to Parliament of the Bill
which included provision for the revised cap, the government published its
Memorandum to the Joint Committee on Human Rights, in which, pursuant to its
duty under section 19 of the 1998 Act, it stated that in its view the provision
was compatible with Convention rights. In the memorandum the government
(a)
accepted in para 18 that the provision fell within the ambit of article
1 p 1 and arguably of article 8;
(b)
noted in para 19 the decision of this court in the first benefit cap
case;
(c)
accepted in para 19 that 60% of those capped under the original scheme
had been lone parents;
(d)
contended in para 21 that, to the extent that the revised cap impacted
upon them disproportionately to its impact on others, its impact was justified
in the interest of the economic well-being of the UK and of incentivising
people to work; and
(e)
claimed in para 77 that, in the light of this court’s decision in the
first benefit cap case, it had, in relation to the proposed revision of the
cap, fully considered what it described as its “obligations” under the UNCRC
because the best interests of children overall were promoted when their parents
were in work and because work remained the surest route out of poverty.
83.
On 10 September 2015 Gingerbread made representations to the Public Bill
Committee of the House of Commons in respect of the proposed revision of the
cap. Its policy director said:
“Over 60% of people capped so far
have been single parents; 70% of them have children under five and 34% have
children under two … the younger the child is when the parent is capped, the
harder it is for them to get into work … we really also need to be looking at
the contradiction between the benefit cap and the conditionality policy that
exists. … If you are capping up to 20,000 single parents who have children
under two, there is no childcare support available for that group at present.
There is also … a real shortage of childcare available, so there are really
clear reasons why that group of single parents will not be able to go into
work. [The government’s] research, again, has shown that where those people who
are capped do not find work, it is likely that 40,000 more children would be
pushed into poverty. When we are looking at the benefit cap we need to look at
the circumstances of the family and the age of the child.”
84.
On 17 September 2015 Ms Thornberry MP, then the shadow minister of state
for employment, tabled before the same committee an amendment to the Bill to
the effect that the revised cap should not apply to “persons … responsible for
the care of a child aged below two”. The group proposed to be exempted was
therefore close to the DA cohorts. But it was not identical in that Ms
Thornberry’s amendment appeared to exempt dual-care parents as well as lone
parents, although at one point in the discussion she seemed to suggest
otherwise. In arguing for her amendment Ms Thornberry suggested that the
original cap had overwhelmingly applied to people who were recognised within
the benefits system itself as being unable to work. She referred to the
evidence which the committee had heard a week earlier, including no doubt that
of Gingerbread, and she explained that the narrow exemption which she proposed
was for a group that was perhaps the most acutely vulnerable and the least able
to change its circumstances. But the committee rejected the amendment by ten
votes to five.
85.
Between November 2015 and February 2016 the House of Lords in debates
and in committee considered in detail the provision for the revised cap. In
summary
(a)
Baroness Lister suggested that it was not reasonable to expect a lone
parent with a child aged under one to work. She suggested that the government
had not properly assessed the best interests of different groups of children
pursuant to its obligation under article 3.1 of the UNCRC.
(b)
Baroness Manzoor suggested that the lower cap would disproportionately
affect single parents with a child aged under five.
(c)
Baroness Hollis suggested that lone parents with children aged under
three were effectively out of the labour market. She tabled an amendment to
exempt carers of children aged under nine months from the cap.
But the amendment proposed by Baroness Hollis failed; and
the government did not act on the various suggestions. Lord Freud on its behalf
stressed the importance of the message that work pays and that households on
benefits should not receive more than working households; and he declared that
the way to address hard cases was by DHPs, to which the government would
allocate £870m over the following five years.
86.
The government’s Equality Analysis dated September 2016 in relation to
the 2016 Regulations, like its IA dated August 2016, claimed that the
government had taken the UNCRC into account. It stated that it was not in the
best interests of children to live in workless households and referred to
studies which concluded that children in such households exhibited greater behavioural
problems from the age of seven and poorer academic attainment. It recognised
that lone parents might find it hard to work as a result of childcare
responsibilities but pointed out that measures of mitigation, in particular
free childcare and DHPs, had been put in place.
87.
By a narrow margin I am driven to conclude that, in relation to its
refusal to amend the 2006 Regulations so as to exempt the appellant cohorts
from the revised cap, the government did not breach article 3.1 of the UNCRC in
either of the relevant dimensions of its concept of the best interests of a
child. The Parliamentary and other materials to which I have referred
demonstrate that it did evaluate the likely impact of the revised cap on lone
parents with young children; and that it did assess their best interests at a
primary level of its overall consideration. This court must impose on itself
the discipline not, from its limited perspective, to address whether the
government’s evaluation of its impact was questionable; nor whether its
assessment of the best interests of young children was unbalanced in favour of
perceived long-term advantages for them at the expense of obvious short-term
privation.
Issue 11: Conclusion on justification
88.
I am also driven to conclude that the government’s decision to treat the
appellant cohorts similarly to all others subjected to the revised cap was not
manifestly without reasonable foundation. In this regard, for reasons which I
will not rehearse, the DA cohorts have a stronger case than have the DS
cohorts; but, again by a narrow margin, even the stronger case fails. The
appellants have not entered any substantial challenge to the government’s
belief that there are better long-term outcomes for children who live in
households in which an adult works. The belief may not represent the surest
foundation for the similarity of treatment in relation to the cap; but it is a
reasonable foundation, in particular when accompanied by provision for DHPs
which are intended on a bespoke basis to address, and which on the evidence are
just about adequate in addressing, particular hardship which the similarity of
treatment may cause.
Disposal
89.
There has been no Convention-related discrimination. The appeals must be
dismissed.
90.
Had discrimination existed, the court would have proceeded to consider
whether to make a declaration that the failure to include the appellant cohorts
in the list of exemptions in the 2006 Regulations was incompatible with their
Convention rights. A declaration is a discretionary remedy; and to decide
whether to exercise the discretion would have precipitated substantial inquiry
into the institutional propriety for this court to make a declaration in
relation to decisions about entitlement to welfare benefits made by the
government in Parliament following protracted debate. But it is this same
crucial, if sometimes problematic, concept of institutional propriety which informs
the test of justification, generous to the government, of a measure such as
that of the revised cap; and it is therefore at that stage that, in relation to
such a measure, the concept will usually play its part.
Postscript
91.
These appeals were rightly brought. The arguments raised in them have
been of such weight as to attract this court’s most careful and sympathetic
consideration; and they have led two members of the court to enter a powerful
dissent from the majority’s dismissal of the appeals. On 12 March 2019, shortly
prior to the delivery today of these judgments and long after our hearing of
the appeals, the Work and Pensions Committee of the House of Commons published
its report on “The Benefit Cap”, 24th Report of Session 2017-19, HC 1477. Although
in form a study of the effect of the original as well as of the revised cap,
the report inevitably focusses on the current, more severe, effects of the
revised cap. It addresses, although in far greater detail, all the factors to
which I have referred in paras 22 to 34 above under the heading “Evidence”; as
well, of course, as many more relevant factors. In the report the committee
calls on the government urgently to conduct a full audit of the policy behind
the benefit cap; to reconsider the limits at which benefits are capped; and in
particular to disapply the cap to those who, by reference to the conditions
attached to the receipt of income support, are not yet expected to look for
work. The fact that a committee of the House of Commons is at this present time
calling for urgent review of the provisions of the revised cap would in my view
have fortified a decision, had the need to make it been reached, that
institutional propriety militated against the grant of a declaration of
incompatibility at this stage: R (Nicklinson) v Ministry of Justice
[2014] UKSC 38, [2015] AC 657, paras 113-118 (Lord Neuberger of Abbotsbury
PSC).
LORD CARNWATH: (with
whom Lord Reed and Lord Hughes agree)
92.
I agree with Lord Wilson that the appeal should be dismissed, for the reason
that the approach adopted by the government, even if in other respects meeting
the tests for discrimination under article 14, was not, as he says, “manifestly
without reasonable foundation”. However, having been a member of the majority
in the related case of SG, I add some comments on the
relationship between the two cases, and some remaining points of difference (or
difference of emphasis).
93.
The benefit cap imposes a cap on the total amount of annual welfare
benefits that a given household can receive. The legality of the previous
scheme under the Welfare Reform Act 2012 was upheld by this court (by a
majority) in R (SG) v Secretary of State for Work and Pensions [2015] 1 WLR 1449. Although the scheme was agreed to be discriminatory against women for
the purposes of articles 14 and A1P1, it was held to be justified because (in
the words of the headnote):
“… the legislature’s policy choice
in relation to general measures of economic or social strategy, including
welfare benefits, would be respected unless it was manifestly without
reasonable foundation; that the view of the Government, endorsed by Parliament,
that achieving the legitimate aims of fiscal savings, incentivising work and
imposing a reasonable limit on the amount of benefits which a household could
receive was sufficiently important to justify making the Regulations despite
their differential impact on men and women, had not been manifestly without
reasonable foundation.”
That to my mind is an accurate summary of the leading
judgment of Lord Reed, agreed in terms by Lord Hughes, and implicitly by
myself.
94.
Furthermore the majority held that the case was not strengthened by
reference to article 3.1 of the UNCRC. It is convenient again to refer to the
summary in the headnote:
“… even on an assumption (per Lord
Reed and Lord Hughes JJSC) or an acceptance (per Lord Carnwath JSC) that the
Secretary of State had failed to show how the Housing Benefit Regulations 2006
were compatible with the article 3.1 obligation to treat the best interests of
children as a primary consideration, such failure did not have any bearing on
whether the legislation unjustifiably discriminated between men and women in
relation to their enjoyment of A1P1 property rights …”
In this respect also, there was full agreement between the
members of the majority on the legal principles to be applied, articulated most
fully by Lord Reed (at paras 78-91). In short, while article 3.1 is not a
source of substantive rights or duties under the European Convention, it may
where appropriate be taken into account as an aid to interpretation of those
rights or duties. Although we differed as to whether article 3.1 had been in
fact been complied with, we were agreed that it had no relevance to the issue
then before us of discrimination under article 14 in relation to the A1/P1
property rights of women.
95.
The benefit cap legislation was politically controversial and subject to
vigorous debate in Parliament, directed to both the principle and the detail.
The difficulty posed by the legal issues in that appeal is apparent from the
division of opinion within the court, and from the time taken to reach a
decision (almost 11 months). However, it must be taken as settling the issues
of principle, absent a challenge to the reasoning of the majority, some material
change in the relevant legislation or the circumstances of the individual
cases, or some new argument of substance which was not addressed.
96.
The present challenge is to the amended scheme under the Welfare Reform
and Work Act 2016. By section 8 of the 2016 Act, the applicable cap was reduced
from £26,000 per annum for all families to £23,000 for families living in
Greater London, and £20,000 for families living outside London (“the Revised
Benefit Cap”). A significant change is that the amount of the cap is embodied
in primary legislation, rather than regulations, as is the list of benefits to
which it applies, including child benefits and child tax credit (section
96(10)). It is rightly not suggested that these aspects of scheme, as now
incorporated in primary legislation, are in themselves open to review or
incompatible with the Convention. To that extent the scope for challenge has
been reduced.
97.
The 2012 Act gave the Secretary of State the power to make detailed
provision for the implementation of a benefit cap by way of regulations. Under
section 96(4)(c) of the 2012 Act, this includes a discretion to make exceptions
to the application of the cap. The Benefit Cap (Housing Benefit) Regulations
2012 (SI 2012/2994) provide, inter alia, that adults who are entitled to
“working tax credit” are not subject to the benefit cap. In the case of a lone
parent, receipt of working tax credit requires that he or she engages in work
for at least 16 hours per week. It is the regulations which are the focus of
the present attack. In summary the appellants argue that their parental
responsibilities, combined with the lack of adequate care support, make it in
effect impracticable for them to achieve the 16 hours of work necessary to
qualify for exemption. It is argued that failure to make an appropriate
exception for them under the regulations involved unjustified discrimination
contrary to article 14 of the ECHR.
98.
Apart from the change in legislation, there appear to be three main
differences from the arguments as presented in the earlier cases:
i)
Article 8 Particular emphasis has been placed on article 8 of the
Convention (rather than article 1 of Protocol 1 (“A1P1”) which was the main
focus of attention in SG), and its relevance to the “best interests”
test under the UNCRC;
ii)
Status The focus has shifted to the so-called Thlimmenos principle,
and the groups allegedly discriminated against have been recalibrated and
re-defined in various ways: (DS appellants) (i) lone parents, (ii) lone
parents with children under the age of five (iii) children of parents in groups
(i) or (ii); (DA appellants) (iv) lone parents with children under two
(v) children of such parents.
iii)
Test for justification It is argued that in the light of more
recent Supreme Court authority, the “manifestly without reasonable foundation”
criterion applied in SG, has been superseded by a broader “fair balance”
test.
99.
I will consider each of these points in turn before explaining my
conclusions in the present appeals.
(i) Article 8
100.
As I noted in SG (para 99) article 8 had been mentioned by Mr
Wise in his printed case, not as a free-standing claim, but as an alternative
route into article 14, or as supporting his “best interests” claim in respect
of the children under article 3.1 of the UNCRC. I noted that article 8 was not
relied on by Mr Drabble QC, then appearing for the Child Poverty Action Group.
I was not at that time persuaded that “either of Mr Wise’s formulations adds anything
of substance to the claim based on A1P1”. It may be in retrospect that we
should have given more attention to this aspect of Mr Wise’s submissions. In
any event, there is no doubt that the main weight of the argument at that time,
and the reasoning of the majority, were directed to A1P1 rather than article 8.
101.
Lord Hughes in particular drew a clear distinction between the two in
the particular context of the “best interests” principle under article 3.1 of
the UNCRC:
“146. If the rights in question
are the A1P1 property rights of women, and their associated derivative right
not to be discriminated against in relation to those rights, it is an
impermissible step further to say that there is any interpretation of those
rights which article 3 of the UNCRC can inform. In the case of article 8, the
children’s interests are part of the substantive right of the parent which is
protected, namely respect for her family life. In the case of A1P1 coupled with
article 14, the children’s interests may well be affected (as here), but they
are not part of the woman’s substantive right which is protected, namely the
right to be free from discrimination in relation to her property. There is no
question of interpreting that article 14 right by reference to the children’s
interests …”
This approach is also consistent with established authority
on the application of the best interest principle in the context of article 8.
As Lord Hodge said for the court in Zoumbas v Secretary of State for the
Home Department [2013] UKSC 74; [2013] 1 WLR 3690, para 10:
“The best interests of a child are
an integral part of the proportionality assessment under article 8 of the
Convention.”
102.
Accordingly the present appeal has required us to look in more detail at
the application of article 8. As to the application of article 14 in connection
with article 8, it is unnecessary to repeat Lord Wilson’s review of the
relevant Strasbourg authorities under his issue 1. In agreement with him I am
satisfied that the present claims fall within “the ambit” of article 8 so as to
engage the issue of discrimination under article 14. I also agree with him that
in that context the “best interests” principle under article 3.1 is potentially
relevant. I have more difficulty with the issue of “status” to which I now
turn.
(ii) Identifying the relevant group or “status”
103.
Although the Thlimmenos principle is now well-established, it
does not in my view materially change the nature of the inquiry from that
undertaken in SG. In particular it does not diminish the need under
article 14 to show that the alleged discrimination arose from a relevant
“status”, and to identify a relevant “comparator” with whose treatment that of
the claimant group can be compared (Lord Wilson’s issues 2 and 4).
104.
In Thlimmenos v Greece the applicant was a Jehovah’s Witness who
had been convicted of insubordination under the Military Criminal Code for
refusing to wear a military uniform at a time of general mobilisation. He was
subsequently refused appointment as a Chartered Accountant under rules which
excluded those convicted of serious crimes. He argued that the lack of an
appropriate exception for those whose conviction was due to religious
considerations constituted unlawful discrimination under article 14 taken with
article 9 of the Convention.
105.
The argument was accepted by the Grand Chamber. Having noted that
article 14 had hitherto been applied to differential treatment of persons in
analogous situations without objective and reasonable justification, the court
continued:
“However, the court considers that
this is not the only facet of the prohibition of discrimination in article 14.
The right not to be discriminated against in the enjoyment of the rights
guaranteed under the Convention is also violated when states without an
objective and reasonable justification fail to treat differently persons whose
situations are significantly different.” (para 44)
106.
Although the court’s formulation of the principle does not refer to
“status” as a criterion, it is apparent from the preceding discussion that this
point was not in issue. In that respect the applicant’s argument as recorded by
the court relied on his position as a Jehovah’s Witness:
“The class of persons to which the
applicant belonged, namely male Jehovah’s Witnesses whose religion involved
compelling reasons for refusing to serve in the armed forces, was different
from the class of most other criminal offenders. The Government’s failure to
take account of this difference amounted to discrimination not tolerated by article
14 of the Convention taken in conjunction with article 9.” (para 34)
That aspect of his case was not challenged. It is also
clear that an important feature of the case was the close link between the
alleged discrimination and the protected religious rights under article 9.
107.
The Thlimmenos formulation has been often repeated and is not in
doubt. However, there are few illustrations of its practical scope and
application. An example is EB v Austria (Application No 31913/07,
judgment of November 7, 2013), in which the First Section found that the
principle required an exception to the general rule that convictions remained
on the person’s record even if the offence in question had since been
abolished. In that case, there was a violation of article 14 taken with article
8 as convictions for homosexual acts, later found to be incompatible with the
ECHR, remained on the applicants’ criminal records. We were referred to no Strasbourg
case in which the principle has been applied in the context of social welfare
legislation such as is in issue in this case. Although there is no reason to
exclude its operation in this context, the absence of successful cases in
Strasbourg may reflect the court’s recognition in this context of the “need for
national rules to be framed in broad terms” (SG para 15 per Lord Reed
citing Carson v United Kingdom (2010) 51 EHRR 13 para 62), and the
consequent difficulty of challenging the treatment of particular groups.
108.
I must accept (as Lord Wilson says: para 39) that in R (Stott) v
Secretary of State for Justice the majority of this court adopted a
relatively broad view of the concept of “status”. On that basis I would agree
that “lone parents” can properly be regarded as having a status within the Thlimmenos
principle. In agreement with Lord Hodge, I am much more doubtful as to the
appropriateness of the other narrower forms of status relied on in this case.
In particular I find it hard to see any basis for defining the parents and the
children as distinct groups; the adverse effects are on the families, in which
the interests of parents and children are jointly affected. However, in the
absence of any directly relevant Strasbourg authority on these points, it is
difficult to reach a concluded view. Like Lord Hodge I am content to assume for
present purposes that the “status” requirement is satisfied in respect of each
such group.
109.
The relevant issues therefore are whether those groups or sub-groups are
sufficiently different from other comparable groups to have required separate
treatment under the Thlimmenos principle to avoid interference with
their article 8 rights, and whether a failure in that regard can be justified.
(iii) Test for Justification
110.
The argument that a less demanding test should be applied than
“manifestly without reasonable foundation” (or its hard-to-escape acronym
“MWRF”) was most fully articulated by Mr Wise QC for DA. For the reasons
given by Lord Wilson (issue 7) I agree with him that this argument must be
rejected, and that the application of the MWRF should be regarded as beyond
“future doubt”. However, since this view is not accepted by all the members of
the court, I feel it necessary to add some comments of my own on Mr Wise’s
arguments.
111.
He started from the four-stage approach as summarised by Lady Hale in R
(Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57; [2015] 1 WLR 3820, para 33:
“(i) does the measure have an
legitimate aim sufficient to justify the limitation of a fundamental right;
(ii) is the measure rationally connected to that aim; (iii) could a less
intrusive measure have been used; and (iv) bearing in mind the severity of the
consequences, the importance of the aim and the extent to which the measure
will contribute to that aim, has a fair balance been struck between the rights
of the individual and the interests of the community?”
112.
He accepted that the MWRF test was adopted by this court in Humphreys
v Her Majesty’s Revenue and Customs Comrs [2012] UKSC 18; [2012] 1 WLR 1545
(alleged discrimination in respect of state benefits), following the ECHR
decision in Stec v United Kingdom (2006) 43 EHRR 47, and in other more
recent cases. However, in those cases, as he submitted (in his written case) -
“the Supreme Court did not
distinguish between the different elements of the justification analysis and,
in particular, did not distinguish between the questions whether a
discriminatory measure (i) pursued a legitimate aim or aims and (ii) was
proportionate in the sense of striking the requisite ‘fair balance’.”
At the latter stage, he argued, MWRF has no application.
For this he relied on what was said by Lord Mance, with the agreement of the
majority of the court in the Welsh Asbestos case, and repeated in R (A)
v Secretary of State for Health (as Lord Wilson has explained: paras 61,
64).
113.
With respect to those members of the court who think otherwise, it is
clear in my view that the MWRF test remains the appropriate test in the present
context. There is nothing in the later cases to support a departure from the
position, as accepted by all parties, and adopted by the court in the SG case.
It is useful to begin by reference to what was said by Lady Hale (with the
agreement of the rest of the court) in the Humphreys case itself:
“17. The phrase ‘manifestly
without reasonable foundation’ dates back to James v United Kingdom
(1986) 8 EHRR 123, para 46, which concerned the compatibility of leasehold
enfranchisement with article 1 of the First Protocol. In the Stec case
43 EHRR 47, the court clearly applied this test to the state’s decisions as
to when and how to correct the inequality in the state pension ages, which had
originally been introduced to correct the disadvantaged position of women.
‘Similarly, the decision to link eligibility for the reduced earnings allowance
to the pension system was reasonably and objectively justified, given that this
benefit is intended to compensate for reduced earning capacity during a
person’s working life’ (para 66). The Grand Chamber applied the Stec
test again to social security benefits in Carson v United Kingdom (2010)
51 EHRR 369, para 61, albeit in the context of discrimination on grounds of
country of residence and age rather than sex.
18. The same test was
applied by Lord Neuberger of Abbotsbury (with whom Lord Hope of Craighead, Lord
Walker of Gestingthorpe and Lord Rodger of Earlsferry agreed) in R (RJM) v Secretary
of State for Work and Pensions [2009] 1 AC 311, which concerned the denial
of income support disability premium to rough sleepers. Having quoted para 52
of the Stec case he observed, at para 56, that this was ‘an area where
the court should be very slow to substitute its view for that of the executive,
especially as the discrimination is not on one of the express, or primary
grounds’. He went on to say that it was not possible to characterise the views
taken by the executive as ‘unreasonable’. He concluded at para 57:
‘The fact that there are grounds
for criticising, or disagreeing with, these views does not mean that they must
be rejected. Equally, the fact that the line may have been drawn imperfectly
does not mean that the policy cannot be justified. Of course, there will come a
point where the justification for a policy is so weak, or the line has been
drawn in such an arbitrary position, that, even with the broad margin of
appreciation accorded to the state, the court will conclude that the policy is
unjustifiable.’
19. Their Lordships all
stressed that this was not a case of discrimination on one of the core or
listed grounds and that this might make a difference. In R (Carson) v
Secretary of State for Work and Pensions; [2006] 1 AC 173, both Lord
Hoffmann and Lord Walker drew a distinction between discrimination on grounds
such as race and sex (sometimes referred to as ‘suspect’) and discrimination on
grounds such as place of residence and age, with which that case was concerned.
But that was before the Grand Chamber’s decision in the Stec case ... It
seems clear from Stec, however, that the normally strict test for
justification of sex discrimination in the enjoyment of the Convention rights
gives way to the ‘manifestly without reasonable foundation’ test in the context
of state benefits. The same principles were applied to the sex discrimination
involved in denying widow’s pensions to men in Runkee v United Kingdom
[2007] 2 FCR 178, para 36. If they apply to the direct sex discrimination
involved in the Stec and Runkee cases, they must, as the Court of
Appeal observed at para 50, apply a fortiori to the indirect sex discrimination
with which we are concerned …”
114.
As that passage shows, authority at the highest level in this country
for the application of the MWRF test goes back at least to the House of Lords
in RJM. Also noteworthy is her reference to the distinction drawn by the
House of Lords between the “core” grounds such as race and sex, and other
grounds; and her acceptance that, even in the core context of sex
discrimination, the “normally strict test” for justification “gives way” to the
MWRF test in the context of state benefits. In the SG case itself the
discrimination was said to be against women, and thus within one of the core
grounds. As one moves further away from those concepts to the more distant
groups identified in the present case, there is still less reason to depart
from the MWRF approach.
115.
SG was argued in April 2014 but not decided until March 2015. As
already noted, there was no disagreement between the parties as to the
application of the MWRF test. By that time the decision in the Welsh
Asbestos case had been given (and was mentioned by Lady Hale: para 209);
but it was not treated by the majority, or indeed the parties, as requiring any
qualification of the MWRF test. Nor was there any such departure or qualification
in the Tigere case itself (decided in July 2015). The case concerned
discrimination in relation to eligibility for student loans. There was a
disagreement between the members of the court over the appropriate test on the
facts of that case, but not on the correctness of the MWRF as applied in the
cases of Humphreys or SG. Lords Sumption and Reed would have
applied the MWRF test. Lord Hughes concluded that the appeal should be allowed
whatever the test. Lady Hale (paras 27-29, with the agreement of Lord Kerr)
referred to those judgments without adverse comment, saying “… education is
rather different”. She went on to cite the Strasbourg decision in Ponomaryov
v Bulgaria (2011) 59 EHRR 799, including in particular to observation of
the court that “unlike some other public services, education is a right that
enjoys direct protection under the Convention ...”.
116.
As Lord Wilson says (para 63), the issue was in any event put beyond
reasonable argument by the seven-justice court (including Lady Hale and Lord
Mance) in the “bedroom tax” case (R (MA) v Secretary of State for Work and
Pensions). Giving the leading judgment (with the agreement on this point of
all members of the court), Lord Toulson noted the submission that, because in Humphreys
the unsuccessful appellant had not argued for anything other than the Stec
test, it was appropriate to ask whether there was good reason to depart from what
Lady Hale had said (para 31). As he then pointed out (para 32):
“The fundamental reason for
applying the manifestly without reasonable foundation test in cases about
inequality in welfare systems was given by the Grand Chamber of the European
Court of Human Rights in Stec, para 52. Choices about welfare systems
involve policy decisions on economic and social matters which are pre-eminently
matters for national authorities.”
He quoted the relevant passage from Lady Hale’s judgment in
Humphreys and noted her comment that the less stringent test “did not
mean that the justifications put forward should escape ‘careful scrutiny’”.
Having commented in detail on the parties’ submissions, and the more recent
Strasbourg authorities, he concluded by simply affirming what had been said in
that passage (para 38).
117.
In her judgment in the present case, as I understand it, Lady Hale does
not seek to question the application of the MWRF principle in these appeals,
but suggests that the court may need to return to it in the future. I cannot
with respect agree. She accepts that the decision in MA was reached
following “a wholesale attack” on the MWRF principle, but observes that there
was no discussion of a “more nuanced” approach along the lines suggested by
Lord Mance in the Welsh Asbestos case. I do not see that this in any way
diminishes the authority of the decision. It is to be noted that, in spite of
the presence of Lord Mance, and although the Welsh Asbestos case was
included in the list of authorities cited, neither he nor anyone else seems to
have regarded it as relevant in that context. That may well have been because
the context in which the issue was considered was quite different from MA (and
from the present case): not social security benefits, but compensation for
asbestos-related disease; and not article 14 discrimination, but interference
with property rights under A1P1. Indeed in Welsh Asbestos there had been
no reference to Stec or Humphreys in either the judgment or in
the submissions.
118.
Lord Kerr goes further and would hold, in agreement with Mr Wise’s submission,
that the MWRF test should not be applied to the final stage of the
proportionality analysis. Although he does not in terms explain how he feels
able to disregard the authority of MA, he emphasises that the technique
applied to that question by the national court is to be distinguished from that
applied in Strasbourg at the supra-national level. However, the fact that the Strasbourg
court uses the MWRF test when applying the margin of appreciation and that the same
margin of appreciation does not necessarily apply at the national level does
not entail that domestic courts cannot also use the MWRF test. It is being used
as a means of allowing the political branches of the constitution an
appropriately generous measure of leeway when assessing the proportionality of
measures concerning economic and social policy. The seven-justice decision in MA
surely settled the point for the foreseeable future.
Conclusion
119.
In conclusion I adopt with respect what was said by Sir Patrick Elias in
the Court of Appeal in DA (which related solely to the group said to be
constituted by lone parents with children aged under two):
“No one should underestimate the
very real hardships caused by the imposition of the cap, and the particular
circumstances of the individual claimants in this case bear witness to the
harsh circumstances in which they and those similarly placed live, as does
detailed evidence from Shelter. But they are difficulties which have to be
borne by all non-working households to a greater or lesser extent; they are not
unique to this cohort, nor does the cap necessarily bear more harshly on them.
There is no linear relationship between the financial impact on families caused
by the cap and the age of the children. Indeed, it is obvious … that households
with a greater number of children will typically suffer more, whatever the age
of their children, simply because the parent or parents have more mouths to
feed and are likely to need larger accommodation ...
It follows that the proper focus
in this case must be whether the problems faced by the particular cohort of
parents in securing effective and affordable child care are sufficiently
different from problems facing other lone parents to entitle the court to
conclude that it is manifestly without reasonable foundation to fail to exempt
them from the operation of the cap …” (paras 105-106)
120.
Although the number of possible groups has been extended in the appeals
as they have come to this court, the thrust of that passage remains valid. It
is necessary to distinguish between the general impact of the cap, which is
undoubtedly harsh, but is inherent in the scheme as approved by Parliament, and
particular effects on an identifiable group which can properly be the subject
of a distinct claim under article 14.
121.
Applying that approach, I ask whether there are factors in the present
cases which require the court to reach a different overall conclusion from that
reached in SG. I have noted that in some respects the task facing the
appellants is more difficult. The amount of the cap, and the benefits to which
it applies (including child benefit) are enshrined in primary legislation,
which is admittedly not open to challenge. Although I have accepted that the
various groups identified by the claimants can be regarded as meeting the
“status” requirement for the purposes of article 14, they are far from the
“core” grounds to which special protection is given under that article, and in
relation to which the court should be especially slow to substitute its view
for that of the executive (see para 113 above, citing RJM para 57).
122.
On the other side, I have accepted that, in contrast to the position in SG,
the claimants are able to pray in aid the best interests principle under
article 3.1 of the UNCRC. However, in that respect the extracts from the
Parliamentary debates quoted by Lord Wilson show that careful consideration was
given, not only by the executive, but also by Parliament, to the extent to
which further exceptions should be enacted, and in particular to the interests
of the children potentially affected. I agree with him that it has not been
shown that the failure to enact further exemptions involved any breach of that
principle. My contrary conclusion on that issue in SG was narrowly based
on the deficiencies in the Secretary of State’s evidence on this aspect (paras
110-112, 127-128), and has no relevance to the present appeals. Overall I agree
with Lord Wilson that the approach ultimately adopted by the executive, with
the support of Parliament, was not manifestly without reasonable foundation,
and that the appeals must accordingly be dismissed.
123.
As a final comment, and without disrespect for the care and skill with
which the cases have been presented to the court, I observe that the dangers of
departing from the restrictive approach laid down by Lord Toulson in MA are
amply demonstrated by the experience of this appeal. We have been faced with
detailed submissions based on conflicting factual and statistical evidence,
much of it produced for the first time in this court. Some of this evidence has
come in support of submissions from interveners. Their experience of the
practical implications of the legal issues can be of great value, but the court
must be careful to ensure that such interventions do not lead to the
introduction of new evidence which has not been fully tested, and which cannot
be properly tested within the limitations of this court’s proper function. At
times it has seemed as though the court were being invited to take on the task
of a Parliamentary Select Committee, undertaking a review of the policy and
factual basis of the legislation. That is not our role.
LORD HODGE: (with whom
Lord Hughes agrees)
124.
I agree with Lord Wilson that the appeals should be dismissed for the
reasons which he gives. I wish to add only one qualification to my agreement
and that relates to the question of status. In this regard I share the doubts
which Lord Carnwath expresses on this issue in para 108 of his judgment.
125.
I also agree with Lord Carnwath’s view on justification (the “MWRF
test”) in paras 110-118 of his judgment, which tallies with that of Lord
Wilson. As Lord Kerr states, the precise reason why the ECtHR adopted the MWRF
test does not apply to the domestic court. But it is open to a domestic court
to adopt that test in relation to socio-economic policy decisions of the
executive in recognition of the institutional constraints on and the
constitutional role of the judiciary. That is what both the House of Lords and
the Supreme Court have done in the cases of R (RJM), Humphreys, SG
and MA, as Lord Carnwath demonstrates in his judgment.
126.
For the purposes of these appeals I am content to assume that each of
the claimants has the required status to mount a challenge under article 14 of
ECHR. But this appeal, like the appeal which this court heard in R (Stott) v
Secretary of State for Justice [2018] UKSC 59; [2018] 3 WLR 1831, raises
questions on the boundaries of “other status” in article 14, a subject on which
there is, as yet, little clarity. Some may argue that the requirement of status
is not an important hurdle for a claimant to overcome and that the Convention
requires the state to justify any failure to treat differently people whose
situation is relevantly different. But as national rules on social security
benefits are required to be expressed in broad terms which will affect
different people differently, the lack of clarity as to the entitlement of
groups and sub-groups to challenge is a mischief. I do not therefore wish to
endorse the view that each of the cohorts of claimants has the necessary
status.
127.
In these appeals, the DA appellants assert a status as lone
parents of children aged under two and as children aged under two of lone
parents. The adult DS appellants assert a status as either lone parents
or, as a fall back, as lone parents with children aged under five. The children
who are DS appellants assert a status as children of lone parents or, as
a fall back, as children aged under five of lone parents. Thus, the court faces
the question whether lone parents of children of any age, lone parents of
children aged under five, lone parents with children aged under two, and their
respective children each enjoy a separate status under article 14.
128.
When one considers an arrangement which requires someone in a household
to work for a minimum number of hours per week in order to escape the benefit
cap, it is not difficult to see that a lone parent household is in a different
situation from a two parent household. Indeed, the government recognizes that
difference by setting a lower minimum number of hours of work per week for the
lone parent household. But, as Lord Wilson points out, there will be many
within this cohort of lone parents whose children are all of school age. It is,
as he states (para 45), a simpler task for the government to justify the
requirement that a lone parent with children all of school age should work at
least 16 hours per week to escape the benefit cap than it is to justify that
requirement for lone parents with children under school age.
129.
When children are under school age, a lone parent’s ability to work at
least 16 hours per week is dependent on the availability of the support of
others in child care. Lone parents with babies and toddlers can be expected to
have greater difficulty in working those hours without such childcare support.
But where does one draw the line or lines? Is there not a sliding scale? The
government’s rules on the availability of financial support for childcare
supports the view of the policy director of Gingerbread: “the younger the child
is when the parent is capped, the harder it is for them to get into work” (see
Lord Wilson’s judgment para 83 above). But the age of the youngest child is not
the only variable which influences how hard it is for a lone parent to obtain
work. The availability of part-time work, the proximity of family or friends
who can provide child care, and the availability and funding of childcare
facilities are equally important variables. Ill-health and other adverse
circumstances of the parent or children in a large family may militate against
a lone parent’s ability to work, regardless of the age of the youngest child.
130.
Looking more broadly, the difficulty in escaping from the benefit cap is
only one feature of the cap. Other circumstances are also relevant to the
burden which the cap imposes on parents. As Sir Patrick Elias stated in his
leading judgment in the Court of Appeal (para 105), there is no linear
relationship between the age of the children and the financial impact on
families caused by the cap. The greater the number of dependent children of
whatever age there is within a household, the more mouths there are to feed and
larger is the accommodation that the family needs.
131.
I am left with some doubt as to whether the age of a lone parent’s
youngest child is the basis for giving the parent and child a status for the
purpose of article 14 in the circumstances of this challenge. The people with
the strongest case for having their circumstances recognised as giving rise to
a status, it seems to me, are the DA cohort of lone parents with
children aged under two and those children, having regard both to the degree of
dependence of the child and the manner in which the government recognises that
dependence both in the non-provision of free child care to most two year olds
(para 28 above) and in the conditions set for the receipt of income support
which are graduated by reference to the age of the child (para 30 above). But I
am content to leave the question of status to future dialogue with the ECtHR.
LADY HALE: (dissenting)
132.
It is indeed regrettable that there is a variety of opinions among the
judges who have considered these cases and accordingly that it has taken this
court so long to produce its judgment: regrettable but not at all surprising.
These are cases about equality and equality is the most complicated and
difficult of all the fundamental rights, even without the delicate context of
entitlement to welfare benefits. A professional lifetime of struggling with
equality issues has persuaded me that some degree of complexity is inevitable
and we should not apologise for it. The law may be complicated and sometimes
difficult to apply but for the most part it does not lack clarity. There is no
difference of opinion between Lord Wilson and me as to the legal principles
applicable: we disagree only on the application of the principle of
justification to the facts of these cases.
133.
The delicacy arises because these are cases about equality in an area,
not principally of social policy, but of economic policy. Constitutionally,
economic policies are decided by those organs of government which are directly
accountable to the people. The courts cannot make those decisions for them. But
that does not mean that the courts have no role to play. In a constitution
which respects and protects fundamental rights, it is the role of the courts to
protect individuals from unjustified discrimination in the enjoyment of those
fundamental rights. There are no “no go” areas. The courts might very well have
declared that denying certain widows’ benefits to widowers was incompatible
with the Convention rights, had the Strasbourg court not got there first: see Willis
v United Kingdom (2002) 35 EHRR 21. More recently, this court has declared
the denial of widowed parent’s allowance to a surviving parent who was not
married to the deceased parent of their children incompatible with the Convention
rights: see In re McLaughlin [2018] 1 WLR 4250. But those examples are
more clear-cut than these. Nor do they mean that the courts will not recognise
that the government is both constitutionally and institutionally more competent
than the courts to make the delicate judgments involved: see, for example, R
(Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681.
134.
The argument before us now is very different from the argument which was
before us in R (SG) v Secretary of State for Work and Pensions [2016] 1
WLR 1449, although that too concerned the benefit cap, albeit in its original
and less draconian version. In SG the complaint was of indirect
discrimination against lone parent women. It was indirect because the benefit
cap applied equally to all lone parents, men and women. But the government
acknowledged that it had a disproportionate impact upon women because the
overwhelming majority of lone parents are women. The debate was about whether
it could be justified and about the relevance of the United Kingdom’s
international obligations under the United Nations Convention on the Rights of
the Child (UNCRC) to that question. A majority of this court concluded that the
government had not complied with its obligation, under article 3.1 of UNCRC, to
treat the best interests of the children concerned as a primary consideration.
But a majority also concluded that this was not relevant to whether the
indirect discrimination against women was justified. Although I disagreed with
that conclusion, I found it completely understandable. The children of lone
parents were hit equally hard by the benefit cap whether their parents were men
or women. The relevance of their interests to the alleged sex discrimination
was therefore questionable. Indeed, as I had said in Humphreys v Revenue and
Customs Comrs [2012] 1 WLR 1545, a case alleging indirect sex
discrimination in the rules governing entitlement to child benefit, which did
not allow the benefit to be split between shared carers (para 20):
“The reality is that … the
complaint would be exactly the same if it did not discriminate between the
sexes. Mothers who share the care of their children for a shorter period each
week while living on subsistence level benefits have exactly the same problem.
The real object of the complaint is the discrimination between majority and
minority shared carers.”
The reason why I disagreed with the majority in SG
was that, in indirect discrimination, it is the measure itself, rather than its
discriminatory impact, which has to be justified. (This is the case in domestic
law and I see no reason why it should not also be the case in Convention law.
If the discrimination is direct, of course, it is the discriminatory impact
which has to be justified.) The best interests of the children affected were,
in my view, undoubtedly relevant to the justification for the measure itself.
But I agree with McCombe LJ, in the DA case, that SG does not
give us the answer to the very different cases we now have to consider.
135.
In these cases, the basic complaints are of discrimination between, on
the one hand, lone parents and their children and, on the other hand, dual
parents and their children. In DA, it is narrowed down to a complaint of
discrimination against lone parents with a child or children under the age of
two and their children, whether compared with dual parents with children under
two or other lone parents. Both complaints are easier to grasp than the
complaints in SG.
136.
Article 14 of the European Convention on Human Rights (ECHR), as is well
known, provides:
“The enjoyment of the rights and
freedoms set forth in this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority,
property, birth or other status.”
In deciding complaints under article 14, four questions
arise: (i) Does the subject matter of the complaint fall within the ambit of
one of the substantive Convention rights? (ii) Does the ground upon which the
complainants have been treated differently from others constitute a “status”?
(iii) Have they been treated differently from other people not sharing that
status who are similarly situated or, alternatively, have they been treated in
the same way as other people not sharing that status whose situation is
relevantly different from theirs? (iv) Does that difference or similarity in
treatment have an objective and reasonable justification, in other words, does
it pursue a legitimate aim and do the means employed bear “a reasonable
relationship of proportionality” to the aims sought to be realised (see Stec
v United Kingdom (2006) 43 EHRR 47, para 51)?
Ambit
137.
There is nowadays no doubt that entitlement to state benefits, even
non-contributory means-tested benefits, is property for the purpose of article
1 of the First Protocol (A1P1), which protects property rights. Indeed, the
benefit cap can be seen as a species of deprivation of property, as it takes
away rights which the claimants would otherwise have. But, as Lord Wilson
explains (para 36), benefits which enable a family to enjoy “a home life
underpinned by a degree of stability, practical as well as emotional, and thus
the financial resources adequate to meet basic needs, in particular for accommodation,
warmth, food and clothing” are clearly one of the ways (“modalities”) whereby
the state manifests its respect for family life and therefore fall within the
ambit of article 8 (see Petrovic v Austria (2001) 33 EHRR 14 and Okpisz
v Germany (2006) 42 EHRR 32). That we are concerned here, not only with the
right to property, but also with the right to respect for family life is
clearly relevant to the issue of justification.
Status
138.
The government’s argument that, because the claimants are women, who already
have a status under article 14, they should not seek to shoehorn themselves
into some other status (see para 39 above) is clearly unsustainable. Men also
have a status under article 14, but they often qualify for some other status,
such as being married or unmarried (In re G (Adoption: Unmarried Couple [2009] 1 AC 173), disabled or not disabled (R (RJM) v Secretary of State for
Work and Pensions [2009] 1 AC 311) or serving an extended sentence of
imprisonment or some other sentence (R (Stott) v Secretary of State for
Justice [2018] 3 WLR 1831). In any event, the DA claimants are not
complaining of discrimination because they are women. A male lone parent could
have brought exactly the same complaint. And that also applies to the DS
claimants (although they also revive the indirect sex discrimination claim in SG).
Lone parent is clearly a status within the meaning of article 14. And I agree
with Lord Wilson and Lord Kerr that it can be sub-divided according to the ages
of the children, and in particular that having a child or children under
compulsory school age is obviously a status for this purpose, just as being a
disabled child who needed more than 84 days’ hospital in-patient care was a
status in Mathieson v Secretary of State for Work and Pensions [2015] 1 WLR 3250 and indeed being a particular type of prisoner was a status in R
(Stott) v Secretary of State for Justice, above.
Differences or similarities in treatment
139.
I agree with Lord Wilson and Lord Kerr that the natural way to formulate
the DA complaint is that these lone parents, and their children, should
have been treated differently from other lone parents, and from dual parent
families, because their situation is relevantly different from the situation of
other families who are subject to the benefit cap: that is, discrimination
within the meaning of Thlimmenos v Greece (2000) 31 EHRR 12.
140.
I also agree that the natural way to formulate the DS complaint
is of Thlimmenos-type discrimination, whether it extends to lone parents
of children of up to school-leaving age or only to lone parents of children
under compulsory school age. As already explained, I think that any attempt to
formulate the DS complaint as one of indirect discrimination against
women would run into the same difficulties as were encountered in SG.
141.
In both cases, the natural comparator is a dual parent family with
children of the same age. But this is complicated because dual parent families
are, in at least two respects, less favourably treated than lone parent
families: they are subject to the same cap on their benefits although they have
one more adult mouth to feed; and they can only escape if between them they
work outside the home for a total of 24 hours a week. Although this does not
necessarily present insuperable problems, these do not arise if the DS complaints
are limited to those with a child or children under five. Then both the DA and
the DS claimants can compare themselves with lone parents who only have
older children.
142.
It can immediately be seen that the situation of these claimants is
relevantly very different from the situation of lone parents with children of
school age. Lord Wilson has summarised this with great clarity in para 51
above. I would lay particular stress in what he says at para 51(a), which is
worth repeating:
“that, in the case of a lone
parent of a child below school age, in particular of a child below the age of
two, it is contrary to the interests both of herself, of her child and of the
family as a whole that she should in effect be constrained to work also outside
the home.” (My emphasis)
143.
It is dangerous for a judge to indulge in moral indignation but few
mothers (and indeed few lone fathers) who have chosen to work also outside the
home while their children are very young can have escaped being made to feel
guilty that they may have been harming their children’s healthy development by
doing so. We were brought up on John Bowlby’s classic work, Child Care and
the Growth of Love, the foundation of modern attachment theory. Children
need to form stable and healthy attachments early in life in order to be able
to lead healthy lives and form stable attachments of their own in the future.
The foundation for this is stable, consistent and loving care from a parent or
parents (or parent-substitutes) who have bonded early with the child. No-one
who has sat as a judge in the family courts can have escaped hearing constant
evidence about the risks of significant harm to children who are denied such
healthy attachments.
144.
This is not to say that children cannot also thrive if their parents do
go out to work. Such work may bring psychological as well as financial benefits
to their parents, as well as to society, and this may also benefit their
children. But for this the children need good, stable and consistent
alternative care arrangements, preferably in familiar surroundings: children
develop attachments to places as well as people. Such arrangements are in short
supply and very expensive. The availability of help towards the cost of up to
15 hours’ child care for some of these children does not necessarily fit this
bill. The government itself has recognised that parents of very young children
should not be obliged to seek work outside the home, both by the conditions
they have set for eligibility for state benefits and by the limits they have
set for free child care. The psychological risks to children whose lone parents
are obliged to work outside the home in order that their children may have
enough to live on, whether or not this is in their children’s best interests, have
to be set against the psychological risks to children who grow up in
benefit-claiming families, risks to which the government has attached so much
importance.
145.
Of course, those risks will be less if the parent can find suitable work
as well as suitable child care. She may be lucky enough, for example, to find
some evening shifts in a very local supermarket and have a willing grandparent
or neighbour to look after the children while she does so. But any lone parent
who has small children will face considerable difficulties in finding suitable
work which will fit in with her child care arrangements and also, in many
cases, with her commitments to her other children.
Justification
146.
The one matter on which the law may be open to debate relates to the
standard by which the government’s justification for discriminatory measures
such as this is to be judged. In Humphreys v Revenue and Customs Comrs [2012] 1 WLR 1545, this court, in a judgment of mine with which the other Justices
agreed, adopted the “manifestly without reasonable foundation” standard derived
from the Strasbourg Grand Chamber decision in Stec v United Kingdom (2006) 43 EHRR 47, albeit with the qualification that this did not mean that the
justification advanced should escape “careful scrutiny” (para 22). But that
test was not disputed in Humphreys, any more than it had been in R
(RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311.
147.
However, Lord Kerr is surely right to question whether the test which
the Strasbourg court will apply in matters of socio-economic policy should also
be applied by a domestic court. The Strasbourg court applies that test, not
because it is necessarily the proper test of proportionality in this area, but
because it will accord a “wide margin of appreciation” to the “national
authorities” in deciding what is in the public interest on social or economic
grounds. The national authorities are better able to judge this because of
their “direct knowledge of their society and its needs” (see Stec, para
52). It does not follow that national courts should accord a similarly wide
discretion to national governments (or even Parliaments). The margin of
appreciation is a concept applied by the Strasbourg court as part of the
doctrine of subsidiarity. The standard by which national courts should judge
the measures taken by national governments is a matter for their own
constitutional arrangements.
148.
Not only that, it has been noted that, in Stec, the Grand Chamber
cited James v United Kingdom (1986) 8 EHRR 123 as authority for its
“manifestly without reasonable foundation” standard. But in James, it is
fairly clear that the Strasbourg court drew a distinction between two
questions: first, was the measure “in the public interest” for the purpose of
A1P1 (or, in article 8 terms, does it pursue a legitimate aim); and second, was
there a reasonable relationship of proportionality between the means employed
and the aim sought to be realised. This latter requirement had been expressed
in Sporrong and Lönnroth v Sweden 5 EHRR 35, at para 69, as “whether
a fair balance was struck between the demands of the general interest of the
community and the requirements of the protection of the individual’s fundamental
rights” (see James, para 50). The “manifestly without reasonable
foundation” standard was applied to the first but not the second question.
149.
When discussing (albeit strictly obiter) whether the
imposition of charges for NHS treatment for asbestos related diseases caused by
employers’ breach of duty was compatible with the A1P1 rights of employers and
their insurers, in In re Recovery of Medical Costs for Asbestos Diseases
(Wales) Bill [2015] AC 1016, para 51, Lord Mance noted that our domestic
law had also drawn a distinction between whether the aims are legitimate and
whether a fair balance had been struck. Both Lord Hope and Lord Reed had
adopted this approach in AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868. Even in relation to the “fair balance” question, of course, “domestic
courts cannot act as primary decision makers and principles of institutional
competence and respect indicate that they must attach appropriate weight to the
informed legislative choices at each stage of the Convention analysis: see the
AXA case, … para 131” (Asbestos, para 54).
150.
I pause only to note that if Lord Hope, Lord Mance and Lord Reed were
correct in separating the issues of legitimate aim and fair balance in A1P1
cases, and applying a different standard to each, it would be wrong to apply a
different approach to those same questions when they come up in the context of
discrimination in the enjoyment of the right to respect for family life. The principles
applicable when, say, insurance companies challenge interferences with their
property rights should not be more favourable to them than the principles
applicable when children challenge discrimination in their right to respect for
their family lives.
151.
In R (MA) v Secretary of State for Work and Pensions [2016] 1 WLR 4550, the so-called “bedroom tax” case, a wholesale attack was mounted upon the
“manifestly without reasonable foundation” test. The attack was rejected in
favour of the continued application of the Humphreys approach (para 38).
There was no discussion of a more nuanced approach along the lines suggested by
Lord Mance in Asbestos. Even applying Humphreys the removal of
the spare room subsidy was found to be without justification in two respects. I
agreed with that judgment (para 81).
152.
It seems to me that the court may well have to return to this difficult
question in another context at some point in the future. But this is neither
the case nor the context to do so. Nor is it necessary. The government has put
forward three aims for the revised benefit cap: (i) fairness as between those
in work and those on benefits, in that those in work should always be better
off than those who are not, and with it the maintenance of public confidence in
the benefits system; (ii) fiscal savings; and (iii) incentivising work outside
the home. These are indeed legitimate aims, whatever the standard by which they
are judged.
153.
However, it is also an essential element in justification that the
measures adopted should be rationally related to their legitimate aims (see,
among many, Lord Reed in Bank Mellat v HM Treasury (No 2) [2014] AC 700,
para 76). This is another way of putting the requirement in European Union law
that a measure be “suitable” to achieving its aims. It seems to me that it has
been comprehensively demonstrated by the mass of evidence before the trial
judge in DA, Collins J, and summarised by Lord Wilson and Lord Kerr,
that the revised benefit cap is not suitable to achieving any of its declared aims.
It does not achieve fairness as between those in work and those on benefits,
because those in work will always be better off than those who are not. The
fiscal savings are very small and liable to be offset by increased costs in
other budgets. These include discretionary housing payments and the cost of
housing and rehousing families made homeless as a result of the cap, as well as
the costs resulting from the harm done to children by the disruption to their
lives and education, as well as by living in poverty, in their early years: the
fact that these costs will mainly fall upon local authorities rather than
central government makes no difference in principle. There will be other costs
if the lone parent is driven to take work outside the home, but it has not been
shown that the benefit cap has this effect on this particular group of lone
parents.
154.
But even if it could be shown that the benefit cap does have some effect
in fiscal savings overall and inducing lone parents of young children to work
outside the home, the question of a fair balance between the benefits to the
community and the detriment to the children and their parents would still
arise. The government is under an obligation in international law to treat the
best interests of the children concerned as “a first priority”. It has been
held on several occasions that whether it has fulfilled that obligation is
relevant to whether it has acted compatibly with the Convention rights of the
children concerned: see ZH (Tanzania) v Secretary of State for the Home
Department [2011] 2 AC 166, H (H) v Deputy Prosecutor of the Italian
Republic, Genoa [2013] 1 AC 338, Zoumbas v Secretary of State for
the Home Department [2013] 1 WLR 3690.
155.
In showing that a fair balance has been struck, it is not enough for the
government to show that it was aware of the concerns raised by many in and
outside Parliament about the effect of the revised benefit cap on the welfare
of children in lone parent families. Awareness is not the same as taking the
best interests of those children seriously into account. Even taking them into
account is not the same as giving them first priority which is an intrinsic
part of striking a fair balance where children’s rights are concerned.
156.
Striking a fair balance would have set the very limited benefits to the
public interest against the damage done to the family lives of young children
and their lone parents if either their parents are forced to work outside the
home in order to have enough for themselves and their children to live on or they
are unable or unwilling to work outside the home and are thus forced to attempt
to live on less than the state has decided that they need. In particular, there
is little or no evidence that proper account has been taken of the risks of
psychological harm to very young children if they are separated from their
primary carers, or the multiple risks to the health, development and life
chances of children living in poverty in their early years. There is little or
no evidence that these very real and well-documented risks have been fairly
balanced against the much more speculative risks of spending those very early
years in a household dependent on welfare benefits - we are talking here of
children who are below compulsory school age, whose understanding of where the
money to live on comes from will be limited, although of course there may be
older children in the same household. Once all the children are of school age,
there will be ample incentive for their parents to try and find work outside
the home if they can.
157.
Therefore, with the greatest respect for the institutional competence of
the government as primary decision-maker in these matters, this seems to me a
clear case where the weight of the evidence shows that a fair balance has not
been struck between the interests of the community and the interests of the
children concerned and their parents. I would therefore allow the appeals and
make the declaration made by Collins J in DA, amended to include
families with children under compulsory school age in DS, as follows:
“The Housing Benefit Regulations
2006, as amended by the Benefit Cap (Housing Benefit and Universal Credit)
(Amendment) Regulations 2016, are unlawful insofar as they apply to lone
parents with a child or children under the age of five, in that:
a. They involve
unjustified discrimination against lone parents of children under the age of
five, contrary to article 14 of the ECHR read with (i) article 1 of the First Protocol
and (ii) article 8 of the ECHR;
b. They involve
unjustified discrimination against children under the age of five with lone
parents, contrary to article 14 of the ECHR read with article 8 of the ECHR in
the light of article 3 of the United Nations Convention on the Rights of the
Child.”
LORD KERR: (dissenting)
158.
There is much in the judgment of Lord Wilson with which I completely
agree. Indeed, the areas of disagreement between us, although important, are
relatively few. It is right that I should express my admiration for his
judgment and my indebtedness to Lord Wilson for his distillation of the many
complex issues that arise in this difficult appeal.
159.
In particular, I agree with Lord Wilson, for the reasons which he gives
in paras 35 and 36 of his judgment, that the appellants’ claims fall within the
ambit of article 8 of ECHR; that all the appellants have the requisite status
to advance claims under article 14 - paras 38 and 39; and that the natural way
to analyse the complaints of the DA appellants is as discrimination of
the type explained in the Thlimmenos case - para 40. I also agree that,
in relation to the DS appellants, the court should address the fall-back
complaint (ie that relating to lone parents of children under five) and should
again do so as a Thlimmenos complaint - paras 44 and 45.
160.
In paras 46 and 47 of his judgment, Lord Wilson explains why he
considers that the natural comparators to the cohorts whom the appellants
represent are all others subject to the revised benefit cap. I agree with his
analysis, and I also agree with his conclusion that it is open to the
appellants, in advancing the argument that there has been an objectionable
similarity of treatment of the DA and DS cohorts and all who have
been subject to the cap, to draw particular attention to the marked difference
between their situation and those in sub-groups (a) and (b), namely dual-care
parents with a child under two or under five, and lone parents without a child
under two or under five. Treating the DA and DS cohorts in
precisely the same way as the members of those groups when there are
significant differences in their respective circumstances sounds directly on
the issue of justification.
161.
It follows from what I have said in the previous paragraph that I agree
with Lord Wilson that there is clear prima facie evidence that the appellants
are in a relevantly different situation from others who are subject to the
revised benefit cap - para 51 of his judgment. The factors identified in
sub-paras (e) and (f) of para 51 are of especial significance.
Justification
162.
As Lord Wilson has pointed out in para 53 of his judgment, the
authoritative statement on what requires to be justified is found in the speech
of Lord Bingham in A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68, para 68. What requires to be justified is the
difference in treatment between one group and another. That requirement
translates in the present case to justification of the same treatment to two
disparate groups where their circumstances differ to the extent that they
plainly call for differential treatment. Specifically, what must be justified
here is the decision not to make provision for exemption of the DA and DS
cohorts by amending the 2006 Regulations.
163.
In para 55, Lord Wilson adverts to “two different paths” which this
court has followed in its pursuit of the proper test against which
justification is to be measured where what is involved is an economic
measure “introduced by the democratically empowered arms of the state.” Lord
Wilson considers that this “duality” has been unhelpful and expresses regret
for having contributed to it. In my view, there is no reason for regret and,
while the divergence of opinion on this issue might be considered unfortunate,
it is, I am afraid, unavoidable and cannot be swept away.
164.
The divergence centres on the question of the use of the formula
commonly known as “manifestly without reasonable foundation”, when examining
the proportionality of measures devised by government or the legislature in the
fields of economic or social policy. This principle, if it is appropriate to
describe it as such, is the creature of the European Court of Human Rights
(ECtHR). Its provenance is the margin of appreciation which ECtHR accords to
decisions of national authorities in the fields of economic and social policy
particularly. Thus, as Lord Wilson observed in para 58, in the cases of James
and Carson the Strasbourg court held that respect should be shown to
the national legislature’s decision on matters of public interest when devising
economic or social measures unless it was manifestly without reasonable
foundation. It is significant that, as Lord Wilson explained, what he described
as this more benign approach “flowed from the margin of appreciation”. The
manifestly without reasonable foundation formula should be recognised as a
fundamental element of the margin of appreciation doctrine, therefore.
165.
This much is clear from the decision of the Grand Chamber in Stec v
United Kingdom (2006) 43 EHRR 47. In that case ECtHR endorsed the
manifestly without reasonable foundation approach in assessing whether a
measure of economic policy, said to offend article 14 of the Convention, was
justified. But this was expressly linked to the application of the margin of
appreciation principle. At para 52 the court explained the reason for its
reluctance to interfere in this way:
“Because of their direct knowledge
of their society and its needs, the national authorities are in principle
better placed than the international judge to appreciate what is in the public
interest on social or economic grounds ...”
166.
The interconnectedness between the manifestly without reasonable
foundation rubric and the margin of appreciation doctrine is therefore clear.
On that account, a failure to acknowledge that rubric as an element or sub-set
of the margin of appreciation principle can lead to an unwitting importation of
a quasi-margin of appreciation approach into the national courts’ consideration
of the proportionality of a measure. This is impermissible even in the fields
of economic or social policy. There may have been a tendency to do precisely
that, however, in some earlier decisions of this court. Thus, for instance, in MA
[2016] UKSC 58; [2016] 1 WLR 4550, para 32, Lord Toulson adopted for the purposes
of national courts’ review the standard prescribed by Strasbourg when he said:
“The fundamental reason for
applying the manifestly without reasonable foundation test in cases about
inequality in welfare systems was given by the Grand Chamber of the European
Court of Human Rights in Stec, para 52. Choices about welfare systems
involve policy decisions on economic and social matters which are pre-eminently
matters for national authorities.”
167.
But there is plenty of authority which acknowledges that measures falling
within the United Kingdom’s margin of appreciation, when viewed from the
supra-national perspective of ECtHR, will not necessarily survive judicial
scrutiny on the national stage. In In re Recovery of Medical Costs
for Asbestos Diseases (Wales) Bill [2015] UKSC 3; [2015] AC 1016, para
54 Lord Mance said:
“At the domestic level, the margin
of appreciation is not applicable, and the domestic court is not under the same
disadvantages of physical and cultural distance as an international court. The
fact that a measure is within a national legislature’s margin of appreciation
is not conclusive of proportionality when a national court is examining a
measure at the national level: In re G (Adoption: Unmarried Couple)
[2009] AC 173; R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd
intervening) [2015] AC 675, per Lord Neuberger PSC at p 781, para 71, Lord
Mance JSC at p 805, para 163 and Lord Sumption JSC at pp 833-834, para 230.
However, domestic courts cannot act as primary decision makers, and principles
of institutional competence and respect indicate that they must attach
appropriate weight to informed legislative choices at each stage in the
Convention analysis: see the AXA case, para 131, per Lord Reed JSC, and R
(Huitson) v Revenue and Customs Comrs [2012] QB 489, para 85. But again,
and in particular at the fourth stage, when all relevant interests fall to be
evaluated, the domestic court may have an especially significant role.”
168.
Lord Neuberger picked up this theme in Nicklinson [2014] UKSC 38;
[2015] AC 657 where, at para 74, he said:
“In an interesting passage in para
229 below, Lord Sumption suggests that, where an issue has been held by the
Strasbourg court to be within the margin of appreciation, the extent to which
it is appropriate for a UK court to consider for itself whether the Convention
is infringed by the domestic law may depend on the reason why the Strasbourg
court has concluded that the issue is within the margin. I agree that the
reasoning of the Strasbourg court must be taken into account and accorded
respect by a national court when considering whether the national law infringes
the Convention domestically, in a case which is within the margin of
appreciation - just as in any other case as section 2(1)(a) of the 1998 Act
recognises. However, both the terms of the 1998 Act (in particular sections
2(1) and 4) and the principle of subsidiarity (as expounded for instance in
Greens and MT v United Kingdom [2010] ECHR 710, para 113) require United Kingdom
judges ultimately to form their own view as to whether or not there is an
infringement of Convention right for domestic purposes.” (Emphasis added)
169.
The importation of the test “manifestly without reasonable foundation”
to all aspects of the national court’s consideration of proportionality
imperils the proper discharge of its duty. This was a technique devised by the
Strasbourg court in order to promote the proper application of the margin of
appreciation. In my view, it has no place in the national court’s consideration
of whether a measure which interferes with a Convention right is proportionate,
since, as Lord Mance observed in the In re Recovery of Medical Costs case,
at the domestic level, the margin of appreciation is not applicable. Indeed, in
the national setting, this court, in a number of cases, has articulated an
approach to examination of the proportionality of the interference where
consideration of the question whether it was “manifestly without reasonable foundation”
is conspicuously absent.
170.
As Lord Reed said in Bank Mellat (No 1) [2013] UKSC 39; [2014] AC 700, pp 789-790, para 71:
“One important factor in relation
to the Convention is that the Strasbourg court recognises that it may be less
well placed than a national court to decide whether an appropriate balance has
been struck in the particular national context. For that reason, in the
Convention case law the principle of proportionality is indissolubly linked to
the concept of the margin of appreciation. That concept does not apply
in the same way at the national level, where the degree of restraint
practised by courts in applying the principle of proportionality, and the
extent to which they will respect the judgment of the primary decision maker,
will depend upon the context, and will in part reflect national traditions and
institutional culture. For these reasons, the approach adopted to
proportionality at the national level cannot simply mirror that of the
Strasbourg court.” (Emphasis added)
171.
This is an important statement. It emphasises that not only is the
technique adopted by the national court to the question of the proportionality
of a measure different from that of the Strasbourg court but the basis on which
there should be reticence on the part of a national court to interfere is also
different. In Strasbourg it is recognised that the court may be “less well
placed than a national court to decide whether an appropriate balance has been
struck”. By contrast, the national court may consider itself constrained by
“national traditions and institutional culture”. One can quite see how the
concept of ‘manifestly without reasonable foundation’ assists in the
examination by the Strasbourg court of the proportionality of a measure. Very
different considerations arise when the national court examines
proportionality.
172.
The steps in the proportionality analysis at the national level are well
settled. When considering whether legislative measures which interfere with a
Convention right satisfy the requirements of proportionality, “four questions
generally arise”, as Lord Wilson explained in R (Aguilar Quila) v Secretary
of State for the Home Department [2012] 1 AC 621, para 45. These
were discussed by Lord Reed in Bank Mellat at paras 20ff:
“(a) is the legislative
objective sufficiently important to justify limiting a fundamental right?; (b)
are the measures which have been designed to meet it rationally connected to
it?; (c) are they no more than are necessary to accomplish it?; and (d) do they
strike a fair balance between the rights of the individual and the interests of
the community?”
173.
Has the manifestly without reasonable foundation formula any part to
play in the answer to be given to any of these questions? In R (SG (previously
JS)) v Secretary of State for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449, paras 209 and 210, Lady Hale addressed this issue:
“209. The references cited for
the ‘manifestly without reasonable foundation’ test were James v United
Kingdom (1986) 8 EHRR 123, para 46, and National & Provincial
Building Society v United Kingdom 25 EHRR 127, para 80, both cases
complaining of a violation of article 1 of the First Protocol. In AXA
General Insurance Ltd v HM Advocate [2011] UKSC 46; [2012] 1 AC 868, both
Lord Hope of Craighead DPSC at para 31, and Lord Reed JSC at para 124, treated
this test as directed towards whether the measure is ‘in the public interest’,
in other words to whether it has a legitimate aim. They dealt separately with whether
the interference with property rights was proportionate. They relied upon cases
such as Pressos Compania Naviera SA v Belgium 21 EHRR 301, para
38, where the Strasbourg court appears to have regarded this as a separate
question:
‘An interference with the
peaceful enjoyment of possessions must strike a ‘fair balance’ between the
demands of the general interest of the community and the requirements of the
protection of the individual’s fundamental rights. ... In particular, there
must be a reasonable relationship of proportionality between the means employed
and the aim sought to be realised by any measure depriving a person of his
possessions.’ (p 75)
(See also In re Recovery of
Medical Costs for Asbestos Diseases (Wales) Bill [2015] 2 WLR 481, para
52). In this case, the complaint is of discrimination in interfering with the
peaceful enjoyment of possessions rather than of deprivation of possessions as
such. Nevertheless, the benefit cap does come close to a deprivation of
possessions, given that it removes, by reference to a fixed limit, benefit to
which the claimants would otherwise be entitled by virtue of their needs and,
more importantly, the needs of their children.
210. When it comes to
justifying the discriminatory impact of an interference with property rights, a
distinction might similarly be drawn between the aims of the interference and
the proportionality of the discriminatory means employed. However, it has been
accepted throughout this case that the ‘manifestly without reasonable
foundation’ test applies to both parts of the analysis; but that, as this court
said in Humphreys v Revenue and Customs Comrs [2012] 1 WLR 1545, para
22, ‘the fact that the test is less stringent than the ‘weighty reasons’
normally required to justify sex discrimination does not mean that the
justifications put forward for the rule should escape careful scrutiny’.”
174.
I was one of those who accepted in the SG case that the
manifestly without reasonable foundation test applied to all of the stages in
the proportionality analysis. I was wrong to have done so. In the In
re Recovery of Medical Costs case Lord Mance in para 46 had drawn a
distinction between the first three stages of the proportionality assessment
and the final stage:
“Initially, in Handyside v
United Kingdom (1976) 1 EHRR 737, para 62, followed in Marckx v Belgium
(1979) 2 EHRR 330, para 63, the court said that the state was the sole judge of
necessity for the purposes of deciding whether a deprivation of property was ‘in
the public interest’. That no longer represents the position on any view. But
the Counsel General for Wales and Mr Fordham disagree as to the current
position. The Counsel General submits that the court will at each of the four
stages of the analysis ‘respect the legislature’s judgment as to what is ‘in
the public interest’ unless that judgment be manifestly without reasonable
foundation’: James v United Kingdom (1986) 8 EHRR 123, para 46. Mr
Fordham on the other hand submits that this passage was or, at least in
subsequent authority, has been restricted in application to the first or at all
events the first to third stages. In my opinion, Mr Fordham is basically correct
on this issue, at least as regards the fourth stage which presently matters,
although that does not mean that significant weight may not or should not be
given to the particular legislative choice even at the fourth stage.”
175.
At para 51 Lord Mance referred to the Axa case and pointed out
that both Lord Hope and Lord Reed had treated the questions of ‘legitimate aim’
and whether the measure was proportionate separately. The question of whether
the measure pursued a legitimate aim was to be determined on the basis that it
should be considered to have done so unless the claim that it did was
manifestly unreasonable. But in relation to proportionality, as Lord Mance observed,
Lord Hope applied the fair balance test, citing Sporrong and Lönnroth v
Sweden 5 EHRR 35 and Pressos Compania Naviera SA v Belgium
21 EHRR 301.
176.
It is clear from this that, even in the supra-national context of
Strasbourg review, a distinction is to be drawn between, on the one hand, the
pursuit of a legitimate aim for the measure and, on the other, the balancing of
the interests of the state against the impact which a measure interfering with
a Convention right has on those affected by it. The inaptness of applying the
manifestly without reasonable foundation standard when the matter of where the
balance lies is being considered by a national court is all the more obvious.
177.
I have concluded, therefore, that, certainly so far as concerns the
final stage in the proportionality analysis, the manifestly without reasonable
foundation standard should not be applied. Quite apart from the imperative
provided by the authorities, I consider that to impose on the appellants the
obligation of showing that a measure is manifestly without reasonable
foundation is objectionable for two reasons: firstly, it requires proof of a
negative; secondly, and more importantly, much, if not all, of the material on
which a judgment as to whether there is a reasonable foundation for the measure
will customarily be in the hands of the decision-maker and not readily
accessible to the person who seeks to challenge the proportionality of the
measure which interferes with their Convention rights. The proper test to apply
in relation to the final stage of the proportionality assessment is whether the
government has established that there is a reasonable foundation for its
conclusion that a fair balance has been struck.
UNCRC
178.
In para 67 of his judgment, Lord Wilson says that a move is afoot, as
exemplified by observations made by me in the SG case, for UK courts to
treat the UNCRC as part of our domestic law. So far as I am aware, the
statements that I made there have not been taken up by any court and I make
clear that, for the purposes of this case, I do not rely on the view that I
there expressed, nor do I wish to reopen a debate on that issue. I am content
to adopt Lord Wilson’s approach to the significance of UNCRC in the resolution
of this case. In particular, I agree with his description (in para 68) of the
elements of the concept of the “best interests” of the child in article 3.1. As
Lord Wilson says, authoritative guidance is to be found in para 6 of General
Comment No 14 (2013) of the UN Committee on the Rights of the Child. This was
recognised by Lord Carnwath in the SG case and endorsed by this court in
the Mathieson case. Lord Wilson has suggested, and I agree, that the
concept has three dimensions. The most important of these, so far as concerns
the present case, is the third, namely, that, whenever a decision is to be made
that will affect an identified group of children, the decision-making process
must include an evaluation of the possible impact of the decision on them.
179.
That obligation, when allied to the duty of the government to reach a
decision which is proportionate, according to the principles earlier discussed,
means that the respondent must assess the impact on the children in a way that
balances their interests against the interests of the community. It must,
moreover, be satisfied that the decision strikes a fair balance and must be in
a position, when challenged, to establish that it has a reasonable foundation.
180.
The provisions in articles 26 and 27 of UNCRC, set out by Lord Wilson in
para 70 of his judgment, provide an essential backdrop to that exercise. Thus,
the state’s duty is to take necessary measures to ensure that children’s right
to social security benefits is fully realised; to recognise children’s
entitlement to an adequate standard of living; and to take measures to assist
parents to implement the right to a proper standard of living, particularly
with regard to nutrition, clothing and housing.
181.
Even if these provisions are not directly binding on the government
(which is the premise on which I am prepared to proceed in the present case),
they are central to the judgment which the state must make in introducing
social security measures which will affect the living conditions of children.
Moreover, they provide an indispensable yardstick against which the
proportionality of the measures under attack in this appeal falls to be
examined.
182.
For the reasons given by Lord Wilson in paras 75 and 76, the government
cannot assert that the measures under attack are not directed at children. And
I agree with his conclusion in para 78 that the interests of the lone parents
in the present appeals are indistinguishable from the interests of their
children below school age. The issue which is then starkly exposed as critical
to the outcome of this appeal is the effect of article 3.1 on the
proportionality of the government’s decision not to exempt from the revised
benefit cap the cohorts whom the appellants represent.
183.
I say “the effect of article 3.1 on proportionality” advisedly. Lord
Wilson has carried out (in paras 81-86) a comprehensive review of the
Parliamentary materials and other policy documents which disclose the
background to the government’s decision and its objectives. I have nothing to
add to that review. Where I part company with Lord Wilson, however, is in his
concentration on the question whether the government has acted in
breach of article 3 of UNCRC.
184.
Lord Wilson concludes “by a narrow margin” that the government did not
breach article 3.1 by its refusal to amend the 2006 Regulations so as to exempt
the appellant cohorts from the revised cap. As I understand his judgment,
largely on that account, he considers that the appeal must be dismissed. In a
telling sentence in para 87 he says:
“This court must impose on itself
the discipline not, from its limited perspective, to address whether the
government’s evaluation of its impact was questionable; nor whether its
assessment of the best interests of young children was unbalanced in favour of
perceived long-term advantages for them at the expense of obvious short-term
privation.”
185.
I do not agree that the questionability of the government’s decision or
its avowed lack of balance should not be addressed by this court. Conclusions
on those matters will not - at least, not necessarily - be determinative of the
appeal. But, inasmuch as they sound on the question of the proportionality of
the government’s decision, they are matters to be taken into account. I will
return to this theme in paras 188-190 of this judgment.
186.
In the meantime, it is important to deal with the significance to be
attached to a finding that the government has not acted in breach of article 3
of UNCRC. One may begin by recognising that, of course, if the government was
found to have acted in breach of that provision, this would go a long way towards
showing that the decision not to exempt the appellant cohorts from the revised
cap was disproportionate, if indeed it would not be conclusive on that issue.
But a finding that no breach of article 3 arose does not establish the
converse.
187.
But I query the premise (which I believe to be implicit in Lord Wilson’s
judgment) that the question of whether the government was in breach of the
article is pivotal to the issue of proportionality. UNCRC contains a number of
enjoinders to those countries which subscribe to it. Some of these are
expressed in imperative terms. The duty of the state is to keep faith with the
spirit of the Convention. Whether it has discharged that duty is not to be
answered solely on whether it can be said to be in technical breach of its
terms. The proportionality of a government measure which has an impact on the
best interests of children is not to be judged by a mechanistic approach to the
question whether there has been technical compliance with article 3. It must be
assessed on the basis of whether, given the injunctions in UNCRC, the
government’s decision, taking into account where the best interests of children
lie, represents a balanced reaction to those interests and the aims which a
particular measure seeks to achieve. I should say, however, if the
proportionality of the government’s decision not to exempt the appellants from
the benefit cap depended on whether there was a failure to comply with it, I
would have held that the government was in breach of article 3. I will discuss
the reasons for that conclusion later in this judgment.
188.
Article 3 (and articles 26 and 27) provide a context as well as a
backdrop to the government’s decision as to those who should be covered by the
cap. That decision is not insulated from challenge on proportionality grounds
by the government’s claim that it took representations into account, nor even
that it carried out an evaluation of their weight and persuasiveness. The
government must show that it reached a balanced conclusion, taking into account
the impact which the refusal to exempt the cohorts whom DA and DS represent has
had upon them, when weighed against the interests of society which the
conclusion is said to protect.
189.
The impact of the decision not to exempt the DA and DS groups is well described
in the submissions of Gingerbread made to the Public Bill Committee of the
House of Commons in September 2015, referred to in para 83 of Lord Wilson’s
judgment. No real answer to the criticisms of the scheme has been provided by
the government. Its principal defence is its reliance on the DHP scheme. The
shortcomings of that scheme have been vividly described in paras 30 and 31 of
Lord Wilson’s judgment. Quite apart from the myriad of difficulties to which he
there refers, the fundamental point to be made is that DHPs are not tailored to
deal with the spectrum of difficulties which the appellants face, merely one
aspect of them: housing costs. They do nothing to alleviate problems with
childcare costs and complications in obtaining childcare, even if it could be
afforded. And, of course, there is, as Lord Wilson pointed out in para 31,
scant, indeed, virtually no, information as to the extent by which the
difficulties encountered by the DA and DS cohorts are mitigated by DHPs. There
is simply no warrant for the claim that refusal to extend exemption from the
cap to the DA and DS cohorts will improve the fairness of the social security
system or increase public confidence in its fairness. That sweeping statement
partakes of a declamation for which no tangible evidence is proffered. To the
contrary, a proper understanding of the impact on those whom the appellants
represent, so far from increasing public confidence in the social security
system, is likely to lead any right-thinking person to the opposite conclusion.
190.
The other two professed aims of government, to incentivise parents in a
non-working family to obtain work and to achieve fiscal savings have been
decisively refuted by the evidence. One can only incentivise parents to obtain
work if that is a viable option. The evidence in this case overwhelmingly shows
that in most cases in the DA and DS cohorts, this is simply not feasible. In
particular, lone parents are placed in an impossible dilemma. If they go out to
work, they must find the resources for childcare. Those in the DA and DS groups
will routinely find it impossible to obtain employment which will remunerate
them sufficiently to make this a sensible choice. They also face the difficulty
of obtaining suitable childcare, irrespective of whether they can afford it.
191.
As to the fiscal savings that might be achieved, Lord Wilson has dealt
summarily and conclusively with that argument in para 32 of his judgment. I
agree entirely with what he has had to say there and need not repeat it.
The application of the proportionality test to this case
192.
The enjoinder in article 3.1 of UNCRC that, in all actions concerning
children undertaken by administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration sets the scene for
an examination of whether the failure to exempt the DA and DS cohorts from the
cap is a proportionate interference with their ECHR rights. It is to be noted
that the best interests of the child must be a primary consideration.
Where those interests conflict with other considerations, although they will
not inevitably prevail, their primary status must be respected. Ephemeral
aspirations, however high-sounding or apparently noble, will not suffice to
displace them.
193.
The entitlement of children, enshrined in articles 26 and 27 of UNCRC,
to have the state take necessary measures to ensure that their right to social
security benefits is fully realised; and that this comprises an adequate
standard of living; and that measures must be taken to assist parents to
implement that right all contribute to the importance that UNCRC places on the
welfare of children. Where measures are adopted by a state which have a
demonstrable adverse effect on children, the hurdle faced by government in
showing that these factors have been properly taken into account is
correspondingly heightened.
194.
Government, if it is to adhere to its obligations under UNCRC, must have
a clear-sighted understanding of the impact on children that a proposed measure
curtailing their entitlement to social security benefits will have. It must
also carry out a defensible weighing of their interests against the objectives
which it proposes will be achieved by a curtailment of the rights. The
preponderance of evidence in this case strongly supports the conclusion that
this is not the way in which the respondent approached the decision under
challenge in this appeal. True it is that it considered the representations
made. But I do not conclude that a proper weighing of the particular interests
of the DA and DS cohorts against what was likely to be achieved in their case
was carried out.
195.
It is not enough that notice was taken of the various submissions made,
or that the amendments proposed to the scheme came to the attention of the
government. There must be a frank and objective assessment of whether depriving
these particular individuals of the benefit of exemption from the cap would
conduce in a material way to the realisation of the avowed aims of the scheme.
For the reasons that I have given, I do not consider that such an exercise was
undertaken. Further, I believe that, if it had been, the case for the inclusion
of the DA and DS cohorts in the exemption should have been found to be
irresistible.
196.
As I have said, I do not consider that breach of article 3 of UNCRC is
an essential prerequisite to a finding that there has been a disproportionate
interference with the appellants’ ECHR rights. But, if such a breach required
to be found, I would have concluded that it was present. The evidence in this
case unmistakably points to the inference that, while the impact on children’s
rights was considered, it was not given a primacy of importance which article 3
requires. Had it been, the conclusion that the exemption should not be extended
to the DA and DS cohorts would not have been reached.
197.
Lord Wilson has amply demonstrated that government and Parliament were
alive to the state’s obligation under article 3 of UNCRC. Where, regretfully, I
must disagree with him is on his conclusion that taking into account the
representations made amounted to a discharge of that obligation.
Conclusion
198.
I would allow the appeal and make a declaration that the regulations
represent an unjustifiable interference with the appellants’ article 1,
Protocol 1 and article 8 rights, taken in combination with article 14 of ECHR.
