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Introduction

 In these joined appeals, the Supreme Court considered whether the “revised benefit Jones_Jcap” – the effect of which is to restrict the maximum amount of benefits payable to couples and lone parents to £23000 in London and £20000 elsewhere – discriminated against the lone parents of young children, and against the children themselves. The Supreme Court decided by a majority of 5-2 that it did not, though there were various differences of opinion even amongst the majority.

The lead judgment was given by Lord Wilson, with whom Lord Hodge and Lord Carnwath agreed; a concurring judgment was given by Lord Carnwath with whom Lord Reed and Lord Hughes agreed; a concurring judgment was also given by Lord Hodge with whom Lord Hughes agreed. Lady Hale and Lord Kerr both gave dissenting judgments (Lady Hale as to outcome, though she agreed with Lord Wilson on the relevant legal principles to be applied; Lord Kerr dissented both on outcome and on the legal approach taken, specifically on the relevant test to be applied by the courts when considering the proportionality of a measure; though both agreed with certain parts of Lord Wilson’s judgment).

The case is interesting for discrimination lawyers for a number of reasons:

  • It makes clear that changes to benefits entitlements are within the ambit of ECHR, art 8 (the right to private and family life), which provides the gateway to an art 14/art 8 discrimination claim. It has previously been accepted that benefits are within the ambit of art 1 of Protocol 1 (the right to property/peaceful enjoyment of possessions) but not that they fall within art 8, which this judgment now resolves (at least on the facts of these cases, but with a likely wider application in comparable cases).
  • It confirms the broad approach that must be taken to the question of status under art 14, though this is an issue on which there was some disagreement between the majority.
  • It confirms (at least for now, and with a compelling dissent from Lord Kerr) that the question at the justification stage on an art 14 claim relating to socio-economic entitlements is whether the differential treatment imposed by the Government is “manifestly without reasonable foundation” – i.e. the courts do not need to apply the conventional four-stage proportionality assessment.

On a broader level, the judgments are also interesting for the debate between the judges about the court’s proper role in cases such as this. Lord Wilson and Lord Carnwath, in the majority, both expressed real reluctance to interfere in what they viewed as the political sphere – even where the court accepted that “the effect of the cap is to reduce a family well below the poverty line” [33]. Lady Hale in dissent took a different line: “In a constitution which respects and protects fundamental rights, it is the role of the courts to protect individuals from unjustified discrimination in the enjoyment of those fundamental rights. There are no “no go” areas” [133]. Lord Kerr thought that it was inappropriate for domestic courts to mirror the deference shown by Strasbourg to national legislatures, because the basis for Strasbourg showing deference is the principle of subsidiarity and the margin of appreciation, whereas: “at the domestic level, the margin of appreciation is not applicable” [169]. The judgments, and the differences of opinion expressed in them, exemplify the ongoing debate about the level of scrutiny and level of deference that the courts should apply, particularly when dealing with politically contentious issues and with matters falling within the realm of socio-economic policy.

Summary of the outcome

The claims were brought on the basis of art 14 (prohibition of discrimination) in conjunction with art 8 (right to a private and family life) and art 1 of Protocol 1 (right to peaceful enjoyment of possessions). They were pleaded both on a conventional discrimination basis and a Thlimmenos basis (i.e. that not only do like situations need to be treated alike, but also different situations need to be treated differently in order to avoid unlawful discrimination). The court preferred the Thlimmenos approach and, applying the art 14 analysis, Lord Wilson in the lead judgment found that the reduction of benefits was within the ambit of art 8 (the Government had conceded that it was within the ambit of A1P1), the appellants had a relevant status as lone parents or lone parents with children under 5, and the appropriate comparator was everyone else made subject to the cap (i.e. dual parents or lone parents with school-age children). Lord Wilson was satisfied that the appellants had shown they were relevantly different from everyone else subject to the cap for various reasons including the real difficulties faced by lone parents of children under 5 in juggling childcare with work, and the negative impact on them and their children of being subject to the cap [51]. However, Lord Wilson found that the Government had justified its approach: the imposition of the cap on the appellants’ cohort was not “manifestly without reasonable foundation” [59], [88]. There was therefore no unlawful discrimination against the appellants.

Please see Part Two here.