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.
