Ruth Kennedy acts in appeal on whether the administration of the childcare element of universal credit is discriminatory to women or irrational


In R (on the application of Salvato) v Secretary of State for Work and Pensions [2021] EWCA Civ 1482 the Court of Appeal (the Vice President, Andrews LJ and Warby LJ) allowed the Secretary of State’s appeal and set aside the declarations made by Chamberlain J. The Judge below had made declarations that the requirement that a person claiming the childcare component under Universal Credit must have already paid for childcare: (a) subjected the Claimant and single mothers like her to unlawful indirect discrimination on the grounds of sex contrary to Article 14 read with Article 8 and/or Article 1 of Protocol 1 of the European Convention on Human Rights; and (b) was irrational. 

Andrews LJ (with whom the Vice President and Warby LJ agreed) held “not without some hesitation” that the Judge was entitled to hold, on the evidence before him, that there was a prima facie case of discrimination. 

However, the Judge erred in his analysis of whether the measure was objectively justified when applying the four limbs of the Bank Mellat test. When considering whether there was a deliberate policy choice present in the mind of the decision maker, the Judge wrongly approached the matter on the basis that the Secretary of State had to establish that all alternatives for delivery had been considered. This included a “proof of liability” rule i.e. that sums were payable when those making a claim were liable to pay rather than payment having actually occurred. This was not an alternative that was raised for consideration by Ministers at the time. The Judge applied a greater degree of intensity of review than was warranted – a “substantial degree of deference should have been afforded to the judgment of the decision-maker” in these circumstances. 

The Judge further failed to address whether less intrusive measurements could have been used without unacceptably compromising the achievement of the objective. Andrews LJ observed that he made no finding that a proof of liability rule would have been as simple, easy to understand or as good as avoiding fraud or errors. She further held that there was no basis for concluding on the evidence that the proof of liability alternative would achieve a different practical outcome for single mothers like the Claimant. 

Similarly, Andrews LJ held that the measure under challenge was not irrational. The challenge was not borne out of a refusal to “fine tune” the Universal Credit system to offset an arbitrary or harmful effect. Instead, she held, that it aimed to stigmatise one element of Universal Credit that was deliberately chosen and plainly had a rational justification. 

Ruth Kennedy acted for the Secretary of State for Work and Pensions.