R (on the application of DA & Ors) v Secretary of State for Work and Pensions [2019] UKSC 21

Lone parents of young children challenged the revised benefit cap under the Welfare Reform and Work Act 2016, arguing it unlawfully discriminated against them and their children contrary to Article 14 ECHR. The Supreme Court, by a 5-2 majority, dismissed the appeals.

Facts

The revised benefit cap, introduced by the Welfare Reform and Work Act 2016, reduced the annual cap on welfare benefits to £23,000 in Greater London and £20,000 elsewhere for couples and lone parents. Those entitled to working tax credit (requiring 16 hours of work per week for a lone parent) were exempt. The appellants in two conjoined appeals (DA and DS) were lone parent mothers and their children. The DA appellants were lone parents of children aged under two and those children; the DS appellants were lone parents and their children, with a fall-back position concerning lone parents of children aged under five.

Evidence showed that 72% of households affected by the revised cap were lone parent households, and 54% of capped households were lone parents with a child under five. The government relied heavily on Discretionary Housing Payments (DHPs) to mitigate hardship. The Impact Assessment identified three aims: improving fairness, making fiscal savings, and incentivising work.

Issues

The principal issues before the Supreme Court were:

• Whether the claims fell within the ambit of Article 8 and Article 1 of the First Protocol (A1P1) ECHR;
• Whether the appellants had a relevant ‘status’ under Article 14;
• Whether the revised cap discriminated against the appellant cohorts (applying the Thlimmenos principle of treating similarly those in relevantly different situations);
• The correct test for justification, specifically whether the ‘manifestly without reasonable foundation’ (MWRF) test applied;
• The relevance of Article 3.1 of the UN Convention on the Rights of the Child (UNCRC) and whether it had been breached.

Arguments

Appellants

The appellants argued that applying the revised cap to lone parents with young children (and those children) constituted unlawful discrimination. They contended that such lone parents were in a relevantly different situation from other capped households because: childcare obligations severely curtailed their ability to work; the government’s own income support conditions recognised that lone parents should not be expected to work until their youngest child reached school age; free childcare was largely unavailable for children under three; and the cap drove families well below the poverty line, with lasting adverse consequences for young children. They also argued that the MWRF test should not apply to the ‘fair balance’ stage of proportionality and that the government had failed to treat children’s best interests as a primary consideration under Article 3.1 UNCRC.

Respondent

The Secretary of State contended that the revised cap pursued legitimate aims of fairness, fiscal savings, and work incentivisation. DHPs were available to mitigate hardship. The government maintained it had complied with its UNCRC obligations, that better outcomes arose for children in working households, and that the scheme was not manifestly without reasonable foundation.

Judgment

The Supreme Court, by a majority of five to two (Lady Hale and Lord Kerr dissenting), dismissed the appeals.

Lord Wilson (with whom Lord Hodge agreed)

Lord Wilson held that the claims fell within the ambit of Article 8, that the appellants had the requisite status under Article 14, and that there was clear prima facie evidence that the cohorts were in a relevantly different situation from other capped households. However, applying the MWRF test, he concluded that the government’s failure to exempt the appellant cohorts was not manifestly without reasonable foundation. He accepted that the appellants had not substantially challenged the government’s belief that working households produce better long-term outcomes for children, and that DHPs were ‘just about adequate’ in addressing particular hardship. He also held, by a narrow margin, that the government had not breached Article 3.1 UNCRC, since Parliamentary materials demonstrated evaluation of the impact on lone parents with young children.

Lord Carnwath (with whom Lord Reed and Lord Hughes agreed)

Lord Carnwath agreed the appeal should be dismissed. He affirmed that the MWRF test remained the settled test for justification in welfare benefits cases, citing Humphreys, SG and MA. He expressed doubts about the breadth of ‘status’ asserted but accepted the requirement was satisfied. He warned against the courts being invited to act as a Parliamentary Select Committee reviewing policy.

Lord Hodge (with whom Lord Hughes agreed)

Lord Hodge agreed with Lord Wilson’s conclusion and with Lord Carnwath on justification and on doubts regarding status.

Lady Hale (dissenting)

Lady Hale would have allowed the appeals. She questioned whether the MWRF test, derived from Strasbourg’s margin of appreciation doctrine, should apply at all stages of proportionality in the domestic court. She held that the revised cap was not rationally connected to its stated aims and that a fair balance had not been struck between the community’s interests and the interests of young children and their lone parents, particularly given the psychological risks of separating very young children from their primary carers.

Lord Kerr (dissenting)

Lord Kerr agreed with much of Lord Wilson’s analysis but held that the MWRF test had no proper place at the final ‘fair balance’ stage of proportionality in the domestic court, because it was rooted in Strasbourg’s margin of appreciation. He concluded the measure was disproportionate and that the government had failed to give the best interests of children the primacy required by Article 3.1 UNCRC.

Implications

The decision confirms that in challenges to welfare benefits rules under Article 14 ECHR, the applicable justification test is whether the measure is ‘manifestly without reasonable foundation’. The majority (particularly Lord Carnwath) expressly stated this should be regarded as beyond future doubt, resolving apparent tensions in earlier authority (including the Welsh Asbestos and R (A) cases) in favour of the approach taken in Humphreys and MA (the bedroom tax case).

The judgment also clarifies that: (i) entitlement to welfare benefits may fall within the ambit of Article 8 as well as A1P1; (ii) the concept of ‘status’ under Article 14 is broad, though its precise boundaries for sub-groups of lone parents remain uncertain; (iii) Article 3.1 UNCRC may inform the interpretation of Convention rights in actions ‘concerning children’, requiring both substantive evaluation of children’s best interests and a procedural assessment of impact.

Practically, the case affirms significant judicial deference to Parliament and the Executive in matters of economic and social welfare policy. The decision is particularly significant for lone parents with young children affected by the cap, although Lord Wilson’s postscript referred to the Work and Pensions Committee’s March 2019 report calling for urgent review of the cap, which he indicated would have weighed against granting a declaration of incompatibility had one otherwise been appropriate. The strong dissents of Lady Hale and Lord Kerr indicate ongoing debate about the appropriate intensity of review in discrimination challenges to welfare measures, particularly at the ‘fair balance’ stage of proportionality.

Verdict: The appeals were dismissed by a majority of five to two. The Supreme Court held that the revised benefit cap’s application to lone parents of children under two (and under five) and their children was not manifestly without reasonable foundation and therefore did not amount to unlawful discrimination contrary to Article 14 ECHR taken with Article 8 or Article 1 of the First Protocol.

Source: DA & Ors, R (on the application of) v Secretary of State for Work and Pensions [2019] UKSC 21