R (on the application of DS and others) (Appellants) v Secretary of State for Work and Pensions (Respondent)

THE COURT ORDERED that no one shall publish or reveal the names or addresses of the Appellants who are the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of them or of any member of their families in connection with these proceedings.

Easter Term

[2019] UKSC 21

On appeals from: [2018] EWCA Civ 504 and

[2016] EWHC 698 (Admin)

R (on the application of DA and others) (Appellants) v Secretary of State for Work and Pensions (Respondent) R (on the application of DS and others) (Appellants) v Secretary of State for Work and Pensions (Respondent)

before

Lady Hale, President

JUDGMENT GIVEN ON

15 May 2019

Heard on 17, 18 and 19 July 2018

Appellants

Respondent

(DA and others)	(Secretary of State for Work and Pensions)
Ian Wise QC	Clive Sheldon QC
Caoilfhionn Gallagher QC	James Cornwell
Stephen Broach	Simon Pritchard
Michael Armitage	Shane Sibbel
(Instructed by Hopkin	(Instructed by The
Murray Beskine	Government Legal

Solicitors)	Department)
Appellants

(DS and others)

Richard Drabble QC

Tim Buley

Zoë Leventhal

(Instructed by Child

Poverty Action Group)

Intervener

(Shelter Children’s Legal Services)

Martin Westgate QC

Shu Shin Luh

Connor Johnston

(Instructed by Freshfields Bruckhaus Deringer LLP)

Intervener

(Equality and Human Rights Commission)

Helen Mountfield QC

Raj Desai

(Instructed by Equality & Human Rights Commission)

Intervener

(Just Fair - written submissions only)

Jamie Burton Daniel Clarke

(Instructed by Hansen Palomares)

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

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 (1997) 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 (1995) 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 (1982) 5 EHRR 35 and Pressos Compania Naviera SA v Belgium (1995) 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.