R (SC) v Secretary of State for Work and Pensions

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 the Appellants or of any members of their family in connection with these proceedings.

Trinity Term
[2021] UKSC 26

On appeal from: [2019] EWCA Civ 615

Appellants

Respondents

Richard Drabble QC	Sir James Eadie QC
Tom Royston Ciara Bartlam	Galina Ward

Yaaser Vanderman

(Instructed by Child	(Instructed by The
Poverty Action Group)	Government Legal

Department)

Intervener
(Equality and Human Rights
Commission)
Helen Mountfield QC
Raj Desai

(Instructed by Equality and Human Rights Commission)

LORD REED: (with whom Lord Hodge, Lady Black, Lord Lloyd-Jones, Lord
Kitchin, Lord Sales and Lord Stephens agree)

1. This appeal concerns the fact that entitlement to one of the components of one of the welfare benefits available in the United Kingdom, namely the individual element of child tax credit, is limited to a maximum amount, calculated as the amount payable in respect of two children. That limitation is challenged in these proceedings as being incompatible with the European Convention on Human Rights (“the Convention”, or “the ECHR”), as given effect by the Human Rights Act 1998. The appeal raises a number of important questions in relation to the relevant articles of the Convention, and in relation to the constitutional law of the United Kingdom.

2. In view of the length of this judgment, it may be helpful at the outset to explain how it is laid out, and the conclusions reached.

(1) After summarising the child tax credit scheme (paras 3-10 below), the facts relating to the appellants (paras 11-12 below), the history of the legislation (paras 13-20 below), and the history of these proceedings (paras 21-23 below), I consider arguments that the limitation of entitlement to the individual element of child tax credit to the amount payable in respect of two children is incompatible with the rights of adults and children affected by it, under article 8 of the Convention, and conclude that those arguments should be rejected (paras 24-33 below).

(2) I next consider an argument that the limitation is incompatible with the rights of adults affected by it, under article 12 of the Convention, and conclude that that argument should also be rejected (paras 34-35 below).

(3) After an introductory discussion of article 14 (paras 36-38), I next consider an argument that the limitation constitutes indirect discrimination against women as compared with men, contrary to article 14 taken together with article 8 or with article 1 of the First Protocol to the Convention (“A1P1”). I conclude that the evidence raises a presumption of discrimination on the ground of gender, and that it is therefore for the Government to establish that the limitation has an objective and reasonable justification (paras 39-54 below).

(4) I next consider an argument that the limitation constitutes direct discrimination against children as compared with adults, contrary to article 14 taken together with article 8, and conclude that that argument should be rejected (paras 55-60 below).

(5) I next consider an argument that the limitation constitutes indirect discrimination against children as compared with adults, and conclude that that argument should be rejected (paras 61-65 below).

(6) I next consider an argument that the imposition of a limitation on entitlement based on the amount payable in respect of two children constitutes direct discrimination against children living in households with more than that number of children, as compared with children living in households with that number of children or fewer. The question whether this argument raises a relevant ground of discrimination is considered, and answered in the affirmative (paras 66-72 below).

(7) In relation to the question whether the measure in question, in so far as it raises a presumption of discrimination on the ground of gender, has an objective and reasonable justification, and the question whether the difference in treatment of children living in households containing three or more children is justifiable, the submissions raise three preliminary questions of general importance (para 73).

(i) The first is whether it is appropriate for our domestic courts to determine whether the United Kingdom has violated its obligations under unincorporated international law. That question is considered at paras 74-96 below, and is answered in the negative.

(ii) The second is whether the approach to proportionality under article 14 set out by this court in Humphreys v Revenue and Customs Comrs [2012] UKSC 18; [2012] 1 WLR 1545, and followed in several later cases, to the effect that the court will respect the policy choice of the executive or the legislature in relation to general measures of economic or social strategy unless it is “manifestly without reasonable foundation”, accurately reflects the approach of the European Court of Human Rights (“the European court”) and should continue to be followed. That question is considered at paras 97-162 below. The answer, put shortly, is that the case law of the European court supports a nuanced approach which is not fully captured by a “manifestly without reasonable foundation” standard of review, and which in some circumstances calls for much stricter scrutiny.

(iii) The third question concerns the use which can be made of Parliamentary debates and other Parliamentary material when considering whether primary legislation is compatible with Convention rights, having regard to Parliamentary privilege. That question is considered at paras 163-185 below. The answer, in summary, is that the will of Parliament is expressed in the language used by it in its enactments, which must be the primary source when identifying the aim of the legislation; that ministerial statements, and documents emanating from the executive, such as a ministerial statement of compatibility, cannot be attributed to Parliament or treated as indicative of Parliament’s intention; that material placed before Parliament, and statements made in the course of debates, may be relevant as background information in ascertaining the objective of the legislation and its likely practical impact; that material of that kind may also be relevant in demonstrating, as a matter of fact, that issues bearing on proportionality were considered by Parliament during the course of the legislative proceedings; but that the proportionality of a statutory measure is not to be judged by the quality of the reasons advanced in support of it in the course of parliamentary debate, or by the subjective state of mind of individual ministers or other members of the legislature.

(8) The final issue, considered at paras 186-209 below, is whether, in the light of the answers to those three questions, (i) the measure in question has an objective and reasonable justification, notwithstanding its greater impact on women, and (ii) the differential treatment of children living in households with more than two children is justifiable. The conclusion reached in each case is that the measure has such a justification, and that the appeal should accordingly be dismissed.

The child tax credit scheme

3. The United Kingdom has for many years operated a system of welfare benefits in order to support individuals and families. Most families with new claims for benefit are supported by universal credit, a holistic benefit which was established by the Welfare Reform Act 2012. But a majority of families receiving benefits at the present time are supported by a variety of longer-established benefits. This appeal is concerned primarily with one such benefit, known as child tax credit, but the aspect of it which is challenged is also a feature of universal credit. It is sufficient for the court to consider the position in relation to child tax credit, since it is common ground that the relevant considerations are the same in each case.

4. Child tax credit is a non-contributory benefit intended to provide financial support to families with children. It was introduced by the Tax Credits Act 2002 (“the 2002 Act”). It can be claimed by persons who are in work as well as by those who are not. Persons in work who are earning up to £16,385 per annum (or more, depending on their entitlement to working tax credit) can continue to receive child tax credit in full. Above that level of earned income, the amount of child tax credit received is reduced in proportion to the claimant’s income until it eventually tapers out altogether.

5. Child tax credit can be claimed either jointly by a couple or by a single person who is not entitled to make a joint claim: section 3(3) of the 2002 Act. In order to be entitled to child tax credit, the claimant, or either or both claimants in a couple, must be responsible for one or more children or “qualifying young persons”: section 8(1). Children are defined as persons aged under 16, and qualifying young persons are defined as young people aged 16 to 19 who are in “advanced education” or “approved training”. For the sake of simplicity, this judgment will refer to “children” as encompassing both categories. Thus, the person entitled to child tax credit is not the child, but the person responsible for him or her. For this purpose, a person is treated as responsible for a child who is normally living with him or her: the Child Tax Credit Regulations 2002 (SI 2002/2007) (“the 2002 Regulations”), regulation 3.

6. Child tax credit consists of three elements: (1) a “family element” of £545 per annum (all figures are as at 2020/21), (2) an “individual element” of £2,830 per annum in respect of each child, subject to the limitation described in the next two paragraphs, and (3) a “disability element” of £3,415 per annum in respect of each child who is disabled, and of £4,800 per annum in respect of each child who is severely disabled: section 9 of the 2002 Act.

7. A limitation on the maximum amount of the individual element is imposed, and certain exceptions to that limitation are allowed, under section 9(3A) and (3B) of the 2002 Act, as amended by section 13(4) of the Welfare Reform and Work Act 2016 (“the 2016 Act”). They provide:

“9(3A) Subsection (3B) applies in the case of a person or persons entitled to child tax credit where the person is, or either or both of them is or are, responsible for a child or qualifying young person born on or after 6 April 2017.

(3B) The prescribed manner of determination in relation to the person or persons must not include an individual element of child tax credit in respect of the child or qualifying young person unless -

(a) he is (or they are) claiming the individual

element of child tax credit for no more than one other
child or qualifying young person, or

(b)	a prescribed exception applies.”

Those provisions received Royal Assent on 16 March 2016 and were brought into force on 6 April 2017. They are reflected in the terms of the regulations prescribing the maximum rate at which a claimant or joint claimants are entitled to child tax credit: regulation 7 of the 2002 Regulations, as amended by the Child Tax Credit (Amendment) Regulations 2017 (SI 2017/387) (“the 2017 Regulations”).

8. The effect of those provisions is that, in calculating the maximum amount of a person’s entitlement to the individual element, no account is taken of third or subsequent children born on or after 6 April 2017, unless one of the prescribed exceptions apply. Those exceptions are set out in the 2017 Regulations. They allow a person or couple to claim an additional individual element of child tax credit for a third or subsequent child born on or after 6 April 2017 for whom they are responsible in the cases of multiple births, adoption, non-parental caring arrangements and non- consensual conception.

9. Child tax credit is separate from, and additional to, numerous other benefits which are payable to families with children. For example, child benefit is payable to the person responsible for a child, at a rate of £1,076.40 per annum for the first child and £712.40 per annum for each subsequent child. There is no limit referable to the number of children in respect of whom child benefit is paid. A person’s entitlement to housing benefit, which is payable in respect of the cost of housing, will also increase if he or she requires a larger property, and therefore has higher housing costs, as a result of children being added to the family, without any limit referable to the number of children. Other support available to families with children includes 70% assistance with childcare costs as part of working tax credit, discretionary assistance with childcare costs for those working less than 16 hours per week, free childcare for younger children, free school meals, and a variety of other benefits. None of these benefits is subject to any limitation relating to the number of children.

10. In addition to the limitation on a person’s entitlement to the individual element of child tax credit, there is also an overall limitation or “cap” on the total amount of welfare benefits which a person may receive (subject to various exceptions). That cap was challenged unsuccessfully in earlier proceedings in this court, where it was argued to be incompatible with the Convention: see R (SG) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening) [2015] UKSC 16; [2015] 1 WLR 1449 (“SG”), which concerned the cap as originally introduced by the Welfare Reform Act 2012, when it was set at a figure equivalent to the net median earnings of working households, and R (DA) v Secretary of State for Work and Pensions (Shelter Children’s Legal Services intervening) [2019] UKSC 21; [2019] 1 WLR 3289 (“DA”), which concerned a revised version of the cap which was introduced by the 2016 Act, when it was set at the figure of £20,000 per annum (or £23,000 per annum for claimants living in London).

The appellants

11. Although this appeal is a test case brought with the support of a campaigning organisation, the Child Poverty Action Group, acting as the appellants’ solicitors, in order to challenge legislation which that organisation unsuccessfully opposed during its passage through Parliament, there are a number of individual appellants who are said to be the victims of violations of their Convention rights. The first group of appellants comprises SC and three children for whom she is responsible. The youngest of those children was born after 6 April 2017, and SC therefore receives no additional child tax credit by reason of the birth of that child. According to the witness statement which she provided when these proceedings were before the Administrative Court, she was receiving at that time welfare benefits in the form of income support, child tax credit and child benefit totalling £12,081.68 per annum, plus housing benefit which paid in full her rent of £5,720 per annum. She also received some financial support from the father of her youngest child. She stated that she was making ends meet, and that she managed but it was not easy. She was and remains subject to the overall cap on welfare benefits of £20,000 per annum, inclusive of housing benefit, and at the time of her statement was receiving £17,801.68.

12. The second group of appellants are CB and five children for whom she is responsible, the youngest of whom was born after 6 April 2017. According to the witness statement which she provided to the Administrative Court, she was at that time receiving welfare benefits in the form of maternity allowance, working tax credit, child tax credit, child benefit and housing benefit totalling £544.59 per week (as a recipient of working tax credit, CB was not subject to the benefit cap). She did not receive any financial support from the fathers of her children. She stated that she was budgeting to the best of her ability, but that her children were unable, for example, to emulate friends who held their birthday parties at commercial venues.

The history of the legislation

13. The proposal to introduce the limitation on entitlement to child tax credit was announced by the Government on 8 July 2015 as one of a number of measures intended to fulfil a commitment made in the Conservative Party manifesto for the 2015 General Election to reduce spending on welfare benefits by £12 billion. The Bill was introduced in the House of Commons the following day. In accordance with section 19(1)(a) of the Human Rights Act, the Minister in charge of the Bill made a statement to Parliament that in his view its provisions were compatible with Convention rights.

14. The Bill received its Second Reading in the House of Commons on 20 July 2015. Parliament was provided with an impact assessment produced by the Treasury and the Department for Work and Pensions. It identified the problem which the Bill was intended to address:

“The government has made clear its objective of tackling the deficit [ie the fiscal deficit: the shortfall in the Government’s income as compared with its spending] and rebalancing the welfare state. Welfare expenditure is a significant driver of public spending and the government is committed to delivering a more sustainable welfare system, including the changes to tax credits, to put the system on a more sustainable footing.

The current benefits structure, adjusting automatically to family size, removes the need for families supported by benefits to consider whether they can afford to support additional children. This is not fair to families who are not eligible for state support or to the taxpayer.”

15. The impact assessment noted that tax credit expenditure had “more than trebled in real terms between 1999/00 and 2010/11, with total expenditure in 2014/15 estimated to be around £30 billion”. The proposed limitation on entitlement was “part of a package which will deliver a more sustainable welfare system and return expenditure on tax credits to 2007/08 levels in real terms”. The option of doing nothing was rejected on the grounds that it was unfair to families not eligible for state support and to the taxpayer, and would not return welfare spending to a sustainable level. The impact assessment also stated that delivering welfare savings was “a vital part of the government’s deficit reduction plan. Had the budget not announced such significant welfare savings, steep reductions in public service spending would have been required - or higher borrowing and debt or higher taxes”. It was estimated that the measure would result in annual savings of £1.365 billion by 2020/21 and that those savings would continue to rise thereafter. The number of households which would be affected by the limitation was accurately predicted. It was also noted that “women … are more likely to be affected, in the absence of behavioural change”, since “[a]round 90% of lone parents are women, and a higher proportion of this group are in receipt of CTC [child tax credit]”.

16. The Bill was the subject of considerable scrutiny and debate during its passage through Parliament. The proposed limitation on child tax credit, in particular, was politically contentious. Numerous documents were placed before Parliament to assist members in their consideration of the Bill, including various impact assessments, written evidence received from over 80 interested organisations and individuals, and briefing papers and notes provided by the libraries of both Houses. Parliamentary scrutiny included consideration of the Bill by the Joint Committee on Human Rights. A Government memorandum to the committee anticipated arguments made in these proceedings that the limitation would affect large families, and was more likely to affect women (because they were more likely to claim child tax credit), and was therefore incompatible with the ECHR and with the United Nations Convention on the Rights of the Child (“the UNCRC”). It rejected arguments based on article 14 of the ECHR on the basis that the measure pursued a legitimate aim and was necessary and proportionate. The stated justification was that:

“The changes are part of the wider reforms to the welfare system aimed to bring about savings on the UK’s welfare spend and reduce the economic deficit. Taking into account the wide margin of appreciation for the State’s administration of social security benefits, the policy is based on a number of political, economic and social considerations. These include a desire to ensure families in receipt of benefits are encouraged to make the same financial decisions as families supporting themselves solely through work, to ensure fairness for the taxpayer and to secure the economic recovery of the country.”

17. Before the House of Commons Bill Committee (“the committee”), it was explained that the current level of spending on child tax credit, amounting to £30 billion per annum, was unsustainable. The limitation on entitlement to the individual element of child tax credit to the amount payable in respect of two children was proposed in light of the fact that the average number of dependent children in families in the UK was 1.7. In order to give families time to prepare, the changes would not be brought into effect until April 2017, and would only apply in respect of children born after that date.

18. The committee received submissions from the Equality and Human Rights Commission which stated that the proposed changes to child tax credit might affect the living standards of poor families with more than two children. The Commission expressed concern that, although the Government asserted that the proposals in the Bill were in the best interests of children, since the savings achieved by reducing spending on welfare would allow it to protect expenditure on education, childcare and health, and would improve the country’s economic situation, its impact assessment did not address the consequences of the proposals for the children directly affected.

19. The committee also received a large volume of other evidence about the potential impact of the Bill, including evidence concerned with the impact of the limitation upon children in families which might be affected by it. It included evidence from numerous organisations concerned with social policy, and more particularly with children and poverty, including the Child Poverty Action Group. The committee was provided with a 283 page document containing written submissions from that organisation and others, which was also made available to other members of both Houses of Parliament. The committee devoted the whole of one of its sessions to the proposed limitation. Amendments to the Bill moved by the Opposition in committee to retain entitlement to the individual element of child tax credit (and the child element of universal credit) without such a limitation, or to set the limitation at a greater number of children than two, were either defeated on a vote or withdrawn after debate. An Opposition amendment at the report stage in the House of Commons, to leave the current arrangements for child tax credit in place, was also defeated.

20. The Bill was then considered in the House of Lords, where the debate echoed that in the House of Commons. Evidence about the potential impact of the Bill on child poverty was circulated to all members. The proposed limitation, and the proposed exceptions to it, were extensively debated in committee and were the subject of public consultation. The ECHR and the UNCRC were prayed in aid by those opposing the Bill. The draft regulations implementing the exceptions (para 8 above) were referred to the independent Social Security Advisory Committee for its comments. The final debate in the House of Commons was on 23 February 2016, following which the Bill received Royal Assent on 16 March 2016. Steps were taken to ensure that all recipients of child tax credit were informed of the impending changes.

These proceedings

21. In these proceedings, it is argued that the limitation on entitlement to the individual element of child tax credit to the amount payable in respect of two children, where subsequent children have been born on or after 6 April 2017 and fall outside the scope of the prescribed exceptions, is incompatible with the adult appellants’ rights (1) under article 8 of the Convention, to respect for their private and family life, (2) under article 12, to the right to found a family, (3) under article 14 taken together with article 8, to the enjoyment of the right to respect for their private and family life without discrimination, and (4) under article 14 taken together with A1P1, to the enjoyment of the right to the peaceful enjoyment of their possessions without discrimination. It is also argued that the limitation is incompatible with the child appellants’ rights under article 14 taken together with article 8. It will be necessary to consider each of these arguments in turn. The appellants’ case in relation to article 14 is supported by the Equality and Human Rights Commission, which appears as an intervener.

22. The court has been requested to grant leave to allow the adult appellants to appeal on two additional grounds. The first is that the limitation is incompatible with their rights under article 14 taken together with article 9 (the right to freedom of thought, conscience and religion). The second is that the limitation is incompatible with their rights under article 14 (taken together, presumably, with article 8) in relation to their control of their bodies. Such leave is however refused. The proposed grounds of appeal do not have any basis in the pleadings or the evidence. They do not appear to the court to arise on the facts of the appellants’ cases, for the reasons explained in para 28 below, or to be arguable in any event.

23. The judge, Ouseley J, dismissed the claims for reasons given in a judgment dated 20 April 2018: see [2018] EWHC 864 (Admin); [2018] 1 WLR 5425. An appeal against that decision was dismissed by the Court of Appeal (Patten, Leggatt and Nicola Davies LJJ) on 16 April 2019, for reasons explained in a judgment given by Leggatt LJ: see [2019] EWCA Civ 615; [2019] 1 WLR 5687. This court has been greatly assisted by both the judgments below.

Article 8

24.       Article 8 provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

25. Article 8 has never been held to impose an obligation on the state to have in place a programme of financial support for private or family life: see, for example, Petrovic v Austria (1998) 33 EHRR 14, para 26 (“Petrovic”). Accordingly, counsel did not seek to argue that article 8 directly imposed an obligation on the state to provide an unlimited entitlement to the individual element of child tax credit. Instead, counsel argued that article 8 indirectly imposed such an obligation.

26. First, focusing on the position of the adults receiving child tax credit, counsel argued that the limitation was known and intended to affect their reproductive choices, by discouraging them from having more than two children. They had to decide whether to engage in sexual abstinence, contraception or abortion, or to have another child for whom they would receive no additional support in the form of child tax credit. That was incompatible with respect for their dignity. Even if a woman decided to continue with a pregnancy, she would have to consider whether to have an abortion: something which, absent the limitation, she might not have needed to do. That affected her psychological integrity, which was an important aspect of private life. Reliance was placed on the case of Botta v Italy (1998) 26 EHRR 241, where the European Court of Human Rights observed at para 33 that the positive obligations imposed by article 8 “may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves”.

27. Secondly, focusing on the position of children affected by the limitation (ie children living in households which include a third or subsequent child, born on or after 6 April 2017, not falling within one of the prescribed exceptions), counsel argued that the failure to make additional payments of child tax credit in respect of those children had a damaging effect on their integration into their families. Reliance was placed on the case of Marckx v Belgium (1979) 2 EHRR 330, where the European court stated at para 31 that “respect for family life implies in particular, in the court’s view, the existence in domestic law of legal safeguards that render possible, as from the moment of birth, the child’s integration in its family”.

28. I am unable to accept those submissions. Considering first the argument relating to adults, the first point to be made is that the argument does not arise on the facts of this appeal. SC states that, when she became pregnant with her youngest child, “the pregnancy was unplanned so even if I had heard of the two child rule, it would not have resulted in me not getting pregnant and, because of my views on abortion, it would not have made a difference to me continuing with the pregnancy”. CB states that “I was not aware of the two child rule at the time that I became pregnant but, as the pregnancy was completely unplanned and I was on the pill, if I had known about it, it would not have made a difference to my behaviour nor, because of my ethical principles, would it have changed my decision to keep the baby”. So the measure had no effect on either woman’s decision-making in relation to the birth of children.

29. Furthermore, the factual premise of the argument is that the limitation on entitlement to child tax credit was known and intended to have the effect of discouraging adult recipients from having more than two children. That contention was rejected by both courts below in the light of the relevant evidence.

30. Counsel relied before the judge on statements in the impact assessment (paras 14-15 above) that “encouraging parents to reflect carefully on their readiness to support an additional child could have a positive effect on overall family stability”, and that “in practice people may respond to the incentives that this policy provides and may have fewer children”. Those statements were argued to demonstrate that the measure was intended to influence intimate behaviour by creating an incentive for people receiving child tax credit to have smaller families. The judge accepted that it was anticipated that an effect of the measure might be that some people would decide not to have a child when they might otherwise have done so. But he rejected the contention that discouraging larger families could properly be described as an aim of the legislation. He also found that there was no evidence from which it could be inferred that the legislative change was actually having an effect on decisions made about family size. He noted that studies in the United States of the impact of analogous legislation had found little or no effect on the number of children born per family.

31. The Court of Appeal saw no basis for challenging those findings. Leggatt LJ concluded that there was no reason to attribute to the Government or to Parliament any aims in introducing the limitation other than those which were repeatedly stated during the legislative process. Those aims included encouraging people in receipt of tax credits to consider, before having additional children, whether they could afford to support them, and incentivising people to support themselves and their families through work. But the aims of the measure did not include any goal of reducing the size of families. The purpose was not to discourage people on lower incomes from having larger families, but to reduce public expenditure by limiting welfare benefits and to leave choices about family size to the individuals concerned in the knowledge of what state support would be available.

32. As explained at paras 166 and 174-176 below, the relevant intention, when one is considering the intention of primary legislation, is that of Parliament, not that of the Government. Parliament’s intention is ascertained primarily from the language which it has used. It is also legitimate to look at other materials in order to identify the problem or “mischief” which Parliament was seeking to remedy. In the present case, there is nothing in the legislation itself which indicates an intention to interfere with the reproductive choices of recipients of child tax credit. Nor is there the slightest indication in the other material before the court, summarised at paras 13-20 above, that their reproduction rate was regarded as a problem which needed to be addressed. The most that can be said is that one of the effects of the legislation, which Parliament can be taken to have intended, is that recipients of child tax credit have to take decisions about whether or not to have more than two children in the knowledge that their income, to the extent that it is derived from child tax credit, will not increase as a consequence of the birth of a third or subsequent child, unless one of the exceptions applies. But it is an ordinary fact of life that couples take decisions about the size of their families in the knowledge that their income will not automatically increase as the number of their children increases. Article 8 does not oblige the state to alter that situation by ensuring that parents are provided with additional income for every additional child that they may choose to have.

33. Considering next the argument relating to children affected by the limitation, it rests on an assertion that the failure of the state to pay additional child tax credit on the birth of a third or later child has a damaging effect on their integration into their families. There is no evidence to support that assertion, and there is no reason to believe that it is true. Counsel’s submissions suggested that such a child would be treated differently from the other children in the family because of the absence of an additional amount of child tax credit, but there is no reason to suppose that families behave in that way. The amount of the child tax credit which a parent receives is not hypothecated to particular children in their household. Parents are unlikely to respond to the demands placed on a limited budget by treating their third child less generously than their first and second children. Unsurprisingly, the statements of SC and CB contain no such suggestion. On the contrary, SC states that “it is not so much the baby [the third child] who loses out but rather the older children”. As an example, she states that her eldest child cannot attend school clubs over the summer, as they cost £20 per day. CB states that the fifth child’s arrival has resulted in “the same amount having to stretch to five children rather than four”. SC’s and CB’s statements contain nothing to suggest that their youngest children have not been fully integrated into the life of their families.

Article 12

34.       Article 12 provides:

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

35. Counsel for the appellants made no separate submissions to support the contention that the limitation violated article 12, but relied on his submissions in relation to article 8. For the reasons already explained, those submissions cannot be accepted. They are no more persuasive in the context of article 12. According to the case law of the European court, that article only protects the right to found a family within marriage: Goodwin v United Kingdom (2002) 35 EHRR 18, para 98. Neither claimant has any intention of marrying, or founding a family with, the father of her youngest child (or, so far as appears from the evidence, anyone else). Even if they had such an intention, article 12 has been held not to impose a positive obligation on the state to provide the material means which would enable them to found a family: Cannatella v Switzerland (Application No 25928/94) (unreported), European Commission on Human Rights, 11 April 1996. In short, article 12 has no application.

Article 14 taken together with article 8 and A1P1

36.       Article 14 provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

As is apparent from its terms, article 14 can only be considered in conjunction with one or more of the substantive rights or freedoms set forth in the Convention or its protocols. In the present case, it is argued that the relevant rights are those set out in article 8 and A1P1, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

General considerations

37. The general approach adopted to article 14 by the European court has been stated in similar terms on many occasions, and was summarised by the Grand Chamber in the case of Carson v United Kingdom (2010) 51 EHRR 13, para 61 (“Carson”). For the sake of clarity, it is worth breaking down that paragraph into four propositions:

(1) “The court has established in its case law that only differences in treatment based on an identifiable characteristic, or ‘status’, are capable of amounting to discrimination within the meaning of article 14.”

(2) “Moreover, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.”

(3) “Such a difference of treatment is discriminatory if it has no 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.”

(4) “The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.”

38. I shall address those issues first in relation to the complaints made on behalf

of the adult appellants, and then in relation to the complaints made on behalf of their
children.

The complaints of the adult appellants

(i)        The ambit of article 8 and A1P1

39. According to the case law of the European court, the alleged discrimination must relate to a matter which falls within the “ambit” of one of the substantive articles. This is a wider concept than that of interference with the rights guaranteed by those articles, as Judge Bratza explained in his concurring judgment in Adami v Malta (2006) 44 EHRR 3, para 17.

40. For example, in Petrovic the refusal to grant a father a parental leave allowance which was paid to mothers was held not to constitute an interference with the right guaranteed by article 8, “since article 8 does not impose any positive obligation on states to provide the financial assistance in question” (para 26). Nevertheless, since “[b]y granting parental leave allowance states are able to demonstrate their respect for family life within the meaning of article 8”, it followed that “the allowance therefore comes within the scope of that provision” (para 29), with the consequence that article 14 taken together with article 8 was applicable.

41. A number of other judgments of the European court confirm that welfare benefits which are designed to facilitate or contribute to family life, by supporting families with children, are likely to fall within the ambit of article 8, for the purpose of complaints under that article taken together with article 14. Examples include Okpisz v Germany (2005) 42 EHRR 32 (child benefits), Niedzwiecki v Germany (2005) 42 EHRR 33 (child benefits), Weller v Hungary (Application No 44399/05) (unreported) given 31 March 2009 (maternity benefits) and Fawsie v Greece (Application No 40080/07) (unreported) given 28 October 2010 (an allowance for large families). Since child tax credit is payable only to adults who are responsible for children, and is intended to provide financial support to families with children, I do not see any convincing basis for distinguishing it from the benefits with which those cases were concerned. I therefore conclude, in agreement with the Court of Appeal but contrary to the view of the judge, that the complaint of the adult appellants in the present case falls within the ambit of article 8 taken together with article 14.

42. The Court of Appeal, differing in this respect from the judge, held that the complaint also fell within the ambit of article 14 taken together with A1P1, on the basis that persons claiming child tax credit are denied the individual element in respect of a third and subsequent child on an allegedly discriminatory ground. The court considered that that conclusion followed from the reasoning of the Grand Chamber in its admissibility decision in Stec v United Kingdom (2005) 41 EHRR SE18, para 54 (omitting citations):

“In cases, such as the present, concerning a complaint under article 14 in conjunction with article 1 of Protocol No 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question. Although Protocol No 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with article 14.”

43. It was, however, accepted by counsel for the appellants before the Court of Appeal that only the persons entitled to claim child tax credit - that is to say, the adult appellants - could bring a complaint on this basis. There was no departure from that position before this court, where the focus of counsel’s submissions was on article 14 in conjunction with article 8.

(ii)       An identifiable characteristic or status

44. It is argued that the measure in question treats women differently from men, and that the adult appellants, SC and CB, have therefore been the victims of discrimination on the ground of sex. Sex is undoubtedly a relevant characteristic or status: discrimination on the ground of sex is expressly prohibited by article 14.

45. No difference in the treatment of men and women is apparent on the face of the measure: the legislation applies “in the case of a person or persons entitled to child tax credit where the person is, or either or both of them is or are, responsible for a child or qualifying young person born on or after 6 April 2017 … unless - … he is (or they are) claiming the individual element of child tax credit for no more than one other child or qualifying young person”. No distinction is drawn according to whether “the person” is a man or a woman.

46. Counsel argues, however, that although the legislation is couched in neutral terms, statistically it affects more women than men. That is accepted on behalf of the Secretary of State. On that basis, it is argued that there is indirect discrimination, as explained by the European court in the case of DH v Czech Republic (2007) 47 EHRR 3. Consideration of this argument requires an examination of the concept of indirect discrimination in the Convention case law.

47. “Generally, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations”: Guberina v Croatia (2016) 66 EHRR 11, para 69 (“Guberina”). That is the situation in an ordinary case of direct discrimination: there is an actual difference in treatment between comparable cases, directly based on a prohibited ground of discrimination.

48. In addition, “the right not to be discriminated against … is also violated when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different”: Guberina, para 70. In other words, article 14 may impose a positive duty to treat individuals differently in certain situations. One of the judgments cited by the court was Thlimmenos v Greece (2000) 31 EHRR 15, which illustrates the nature of the discrimination in such cases. The applicant had received a criminal conviction as a result of his refusal, for religious reasons, to wear a military uniform. He was refused admission to the profession of chartered accountant because he had been convicted of a serious crime. Since his conviction did not imply any dishonesty or moral turpitude which might render a person unsuitable to enter the profession, the court held that “there existed no objective and reasonable justification for not treating the applicant differently from other persons convicted of a felony” (para 47). The discrimination lay in not introducing an exception to a general rule.

49. Thirdly, “[t]he court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group, and that discrimination potentially contrary to the Convention may result from a de facto situation. This is only the case, however, if such policy or measure has no ‘objective and reasonable’ justification, that is, 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”: Guberina, para 71. The judgments cited in support of that proposition included DH v Czech Republic. This is what is described in the Convention case law as “indirect discrimination”. It can arise in a situation where a general measure or policy has disproportionately prejudicial effects on a particular group. It is described as “indirect” discrimination because the measure or policy is based on an apparently neutral ground, which in practice causes a disproportionately prejudicial effect on a group characterised by a salient attribute or status.

50. The concept of indirect discrimination has only gradually come to be recognised by the European court. An early example is Hoogendijk v The Netherlands (2005) 40 EHRR SE22, where a requirement to qualify for a social security benefit affected more women than men. The court held that “where an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule - although formulated in a neutral manner - in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex” (p 207). The government having failed to do so on the facts of the case, the court held that “the question therefore arises whether there is a reasonable and objective justification for the introduction of [the measure in issue]”. On the facts, it was held that there was.

51. The Grand Chamber adopted a broadly similar approach in DH v Czech Republic, which concerned indirect discrimination on the ground of ethnic origin. That aspect of the case was highly significant, since a difference in treatment based exclusively or to a decisive extent on ethnic origin is incapable of being justified (as the court noted at para 176). As in Hoogendijk, the starting point was for the applicants to submit evidence (again based on official statistics) giving rise to a prima facie case, or “presumption”, of discrimination on the ground of ethnic origin (paras 180, 189 and 195). The onus then shifted to the respondent government to “show that the difference in the impact of the legislation was the result of objective factors unrelated to ethnic origin” (para 195). In that regard, the government argued that the relevant difference - the disproportionate number of Roma children attending schools for children with special needs - was the result of their lower intellectual capacity, as assessed by neutral testing, and their consequent placement in appropriate schools. The court then had to consider whether that constituted an objective and reasonable justification: whether the government was pursuing a legitimate aim, and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised (para 196). Although the aim was accepted to be legitimate, the court concluded, in view of inadequacies in the testing regime, that the results of the tests were not capable of constituting an objective and reasonable justification for the difference in treatment.

52. A different type of situation arose in SAS v France (2014) 60 EHRR 11, which concerned a measure which made it unlawful for anyone to conceal their face in public places. The measure had a disproportionate impact on Muslim women, and was argued to constitute indirect discrimination on the ground of religion. The relevant question was therefore whether the measure pursued a legitimate aim and was proportionate (para 161). It was held that the measure met those requirements.

53. Following the approach laid down in these and other cases, it has to be shown by the claimant that a neutrally formulated measure affects a disproportionate number of members of a group of persons sharing a characteristic which is alleged to be the ground of discrimination, so as to give rise to a presumption of indirect discrimination. Once a prima facie case of indirect discrimination has been established, the burden shifts to the state to show that the indirect difference in treatment is not discriminatory. The state can discharge that burden by establishing that the difference in the impact of the measure in question is the result of objective factors unrelated to any discrimination on the ground alleged. This requires the state to demonstrate that the measure in question has an objective and reasonable justification: in other words, that it pursues a legitimate aim by proportionate means (see, in addition to the authorities already cited, the judgment of the Grand Chamber in Biao v Denmark (2016) 64 EHRR 1, paras 91 and 114).

54. The question whether that test is satisfied in the present case, in relation to

the fact that the limitation on the individual element of child tax credit affects more
women than men, is discussed below at paras 188-199.

The complaints of the child appellants

55. The child appellants claim to be the victims of discrimination contrary to article 14 read together with article 8, first as children, as compared with adults, and secondly as children with two or more siblings, as compared with children who have fewer than two siblings. It is necessary to consider these complaints separately.

(i)        Children as compared with adults

56. It is argued that the child appellants have been treated differently from adults because they are children, and that they are therefore the victims of direct discrimination. It is also argued that the child appellants have been the victims of indirect discrimination against children as compared with adults. There is no doubt that discrimination on the ground of age falls within the scope of article 14.

57. The measure in question is said to be directly discriminatory because it excludes third and subsequent children in a household from the scope of benefits intended to provide children with financial support, whereas there is no corresponding exclusion of adults from the scope of benefits designed to provide adults with equivalent support, such as income support, jobseeker’s allowance, employment and support allowance, working tax credit and pension credit.

58. This argument is unfounded in fact, and depends on a false comparison for such plausibility as it may appear to have. The welfare benefits payable to adults, which counsel treated as analogous to child tax credit, are paid to adults in order to support their individual needs. They are therefore payable to individual adults whether they live alone or with others, and are calculated on an individual basis. Children have no entitlement to receive welfare benefits: benefits are paid instead to the adults who are responsible for them. Child tax credit, in particular, is paid to the responsible adult as a lump sum in respect of the children living with him or her. As was explained in paras 6-9 above, the limitation on the individual element of child tax credit sets a cap on the maximum amount of one part of one benefit which an adult responsible for children can receive. As was explained in para 33 above, the element of child tax credit which is subject to the limitation is not hypothecated to the care of particular children to the exclusion of other children in the household. The limitation does not, therefore, exclude any children from the scope of the support provided by child tax credit, let alone from the scope of the support provided by the benefits system as a whole. As was explained at para 9 above, and as is illustrated by the facts of these appeals (paras 11-12 above), adults who are responsible for children, and meet the relevant qualifying conditions, are eligible to receive a wide variety of benefits designed to support families, such as child tax credit, child benefit, housing benefit, assistance with childcare costs, free childcare and free school meals. The idea that third and subsequent children are excluded from the scope of benefits is therefore mistaken, and the argument that there is, on that basis, direct discrimination against children as compared with adults is not made out.

59. It is also necessary to bear in mind that not all differences in treatment are relevant for the purposes of article 14. The difference is only relevant, for the purpose of assessing whether there has been discrimination, if the claimant is comparing himself with others who are in a relevantly similar situation. An assessment of whether situations are “relevantly” similar generally depends on whether there is a material difference between them as regards the aims of the measure in question.

60. Considering the comparability of children and adults in the light of the aims of the limitation, those aims can be summarised as (1) maintaining public expenditure on welfare benefits at a sustainable level, and (2) requiring adults receiving welfare benefits, like other adults, to make choices as to whether to have a larger than average number of children without a guarantee from the state that their income will rise substantially with the birth of every additional child. In relation to the first of those aims, it was noted at para 15 above that expenditure on child tax credit had more than trebled in real terms between 1999/00 and 2010/11. There is no evidence that there has been a comparable increase in expenditure on the other benefits with which counsel sought to compare child tax credit. In relation to the second aim, it was the automatic ratcheting of child tax credit in line with the number of children for whom a person was responsible, without any limit, under the law as it stood prior to the 2016 Act which prompted the legislation that is challenged in these proceedings. Since the adult benefits mentioned by counsel are not linked to the number of children for whom a person is responsible, they do not give rise to any comparable issue, and are therefore not relevantly analogous.

61. The limitation is said to be indirectly discriminatory because the households affected by it contain a larger number of children than adults. That is, of course, an inevitable consequence of the measure: households affected by it necessarily contain at least three children, but generally contain only one or two adults, depending on whether the household is headed by a single parent or a couple. In 2015/16, statistics indicated that there were 1.4m adults and at least 3m children living in households claiming child tax credit where there were more than two children.

62. I should observe at the outset that there may be an issue as to the scope of the concept of indirect discrimination. As explained earlier, the concept is concerned with measures which, although neutral in appearance, have a disproportionately prejudicial impact upon a group sharing a common characteristic. Every case to date in which the European court has treated the concept as relevant has concerned a group sharing a common characteristic corresponding to a “suspect” ground of differential treatment such as sex, sexual orientation, ethnic origin, nationality, religion or disability. “Suspect” grounds are discussed at paras 100-113 below. They do not include age: see para 114. The view has been expressed that indirect discrimination is confined to “suspect” grounds: Theory and Practice of the European Convention on Human Rights, 5th ed (2018), ed Van Dijk and others, p 1006. Without necessarily going so far, one might in any event question whether children, considered as a whole, constitute a group of the relevant kind. I do not, however, need to examine that point, which was not raised in argument.

63. There is in any event a fundamental problem with the argument. Child tax credit does not affect children and adults in comparable ways, as has been explained. It is not paid to adults for their own benefit, but in order to assist them in meeting the needs of the children for whom they are responsible. A rule which limits the amount of child tax credit affects the children in the household, since it limits the amount of money which the responsible adults can spend on their care. It does not have any comparable effect upon the adults themselves.

64. I should add, for the sake of completeness, that if one were to accept that children and adults were affected by the limitation in comparable ways, the issues arising in considering whether the measure had an objective and reasonable justification would be much the same as those considered at paras 200-209 below, and would lead to the same conclusion.

65. For these reasons, I reject the contention that the measure in question results

in a difference in treatment between children as a class and adults as a class, and
need not consider that aspect of the case further.

(ii)       Children living in households with more than two children as

compared with children living in households with one or two children

66. Counsel’s final argument is that the measure in question treats children with two or more siblings - or, as I shall re-formulate the category, children living in households containing more than two children - differently from other children. That is the effect of the terms of the legislation: as explained in para 8 above, it limits an adult claimant’s entitlement to the individual element of child tax credit to the amount payable in respect of two children, unless one of the prescribed exceptions applies. I have to confess to some doubt as to whether counsel for the child appellants has demonstrated sufficiently the extent to which the limitation has affected their family life for the purposes of article 8: their complaint has been presented as being primarily of a financial nature. However, I do not dismiss the complaint on that basis.

Conclusion

210.     For the foregoing reasons, I conclude that the appeal should be dismissed.

JUDGMENT

R (on the application of SC, CB and 8 children) (Appellants) v Secretary of State for Work and

Pensions and others (Respondents)

before

Lord Reed, President

Lord Hodge, Deputy President

Lady Black
Lord Lloyd-Jones
Lord Kitchin
Lord Sales

Lord Stephens

JUDGMENT GIVEN ON

9 July 2021

Heard on 20, 21 and 22 October 2020