In R (on the application of DA) v Secretary of State for Work and Pensions/ R (on the application of DS) v Secretary of State for Work and Pensions [2019] UKSC 21 the Supreme Court has (by a 5:2 majority – Lords Wilson, Carnwath, Reed, Hughes and Hodge; Lady Hale and Lord Kerr dissenting) dismissed challenges to the revised benefit cap under the Welfare Reform and Work Act 2016.
In both cases the claimants, who were lone parents, alleged that the Secretary of State’s failure to exempt those in their respective cohorts from the revised cap amounted to unlawful discrimination contrary to Article 14 ECHR, read with Article 1 of the First Protocol (“A1P1”) (right to enjoyment of possessions) and Article 8 (right to family life).
The Court unanimously accepted that being a lone parent was a “status” for Article 14 ECHR purposes. The Court was also prepared to proceed on the basis that being a child under 5 or under 2, or being a parent of such a child, was a status, although four of the Justices expressed doubts about this form of status (Lords Carnwath, Reed, Hughes and Hodge).
The Court unanimously accepted that the cases fell within the ambit of not only A1P1 but also Article 8. The Court also unanimously considered that the correct way to analyse the alleged discrimination was as so-called Thlimmenos discrimination (i.e. treating relevantly different cases in the same way without justification) and that the focus should be on the position of children below school age and their parents.
By a majority of 5:2 the Court confirmed that when considering the justification of the otherwise discriminatory effect of rules on entitlement to welfare benefits the sole question was whether the measure was manifestly without reasonable foundation. Lord Wilson observed: “Let there be no future doubt about it”. The majority therefore rejected the claimants’ contention that the court should apply the four-stage analysis of justification (as set out in R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57) and at the fourth stage itself strike a fair balance between the interests at stake.
Lord Wilson’s judgement also contained a detailed discussion of the relevance of Article 3.1 of the UN Convention on the Rights of the Child (“UNCRC”) to Article 14 ECHR. His conclusions can be summarized thus: (i) the UNCRC is not a part of UK law; (ii) the General Comments of the UN Committee on the Rights of the Child are authoritative, but not binding, as to the interpretation of Article 3.1 and may influence, but not drive a conclusion that Article 3.1 had been breached; (iii) where relevant the UNCRC may inform an inquiry into an alleged breach of Article 14 ECHR; and (iv) insofar as the child claimants claimed violation of their Article 14 rights read with Article 8, their rights had to be construed in the light of the UNCRC, and the interests of the lone parents of children below school age were indistinguishable.
The majority of the Supreme Court found that Article 3.1 UNCRC had not been breached and that not exempting the claimants’ cohorts from the revised cap was not manifestly without reasonable foundation.
Clive Sheldon KC and James Cornwell of 11KBW successfully represented the Secretary of State (together with Simon Pritchard and Shane Sibbel of Blackstone). A copy of the judgment can be found here.
