Share it

The judges’ conclusions on the key issues

In order to make good an art 14 claim, a claimant has to establish that (a) the Jones_Jcircumstances fall within the ambit of a substantive Convention right, (b) the claimant has a relevant status for the purposes of art 14, (c) they have been treated differently from others in a similar situation, by reason of their status; if so the burden is then on the state to demonstrate (d) whether the difference in treatment is objectively justified. In a Thlimmenos claim, the third question becomes “they have been treated the same as others in a relevantly different situation”. The way in which those issues were resolved by Lord Wilson for the majority is summarised in Part One here, but the court’s analysis of status and justification is worth some closer consideration.

On status, Lord Wilson concluded that being a lone parent, or a lone parent with a child under the age of 5, is a relevant status for the purposes of art 14. The age of the children was relevant in these cases because of other provisions that the Government makes which interact with its benefits provision – namely the provision of free nursery hours for 2-3 year olds, and then free schooling for school-age children. Lord Wilson held that a status does not have to be a permanent characteristic: [38]. It must be interpreted broadly [39]. Those conclusions build on previous cases (e.g. Stott) and jurisprudence from the ECtHR, and Lord Kerr and Lady Hale despite dissenting overall agreed with Lord Wilson on the status issue. Lord Carnwath was more circumspect, accepting that lone parenthood was a relevant status but being unconvinced by the other forms of status relied on: [108]. Lord Hodge expressed real reservations about the status relied on and the boundary of “other status” for the purposes of art 14, but was prepared to assume that in this case it was satisfied [126, 131].

On justification, Lord Wilson addressed the previous discrepancy that had arisen as to whether the conventional four-stage approach to proportionality ought to apply in benefits cases, or whether the single question of whether differential treatment was “manifestly without reasonable foundation” ought to apply. He held that “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” [65]. Lord Carnwath agreed [110].

As to the approach to be taken to justification (the burden of which falls on the government), “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” [66]. Although at first blush that appears to be placing a burden on a claimant which has never previously existed, Lord Wilson relies on the court’s own role to try to overcome that novel position: “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” [66].

Lord Kerr disagreed with the approach Lord Wilson and the majority took on justification. He accepted that “manifestly without reasonable foundation” is the test applied by Strasbourg, but he did not think that required it to be applied by domestic courts, where the wide margin of appreciation that Strasbourg gives to national authorities is not engaged. However, his approach failed to find favour with the rest of the court and, as Lord Wilson and Lord Carnwath expressly held, their view as to the application of the manifestly without reasonable foundation test in areas of socio-economic policy must be taken to settle the issue, at least for the moment. As Lady Hale observed, “the court may well have to return to this difficult question in another context at some point in the future” [152] since a difference in approach between this case (applying art 8) and earlier cases applying A1P1 raises the concerning possibility that an insurance company challenging an interference with their property rights would be more favourably treated by the courts that children challenging discrimination in their right to respect for family life [150].

As to the application of the manifestly without reasonable foundation test in this case, Lord Wilson reached the conclusion that the government’s treatment of the appellants’ cohorts was not manifestly without reasonable foundation because there had been no 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 [88]. He reached that conclusion despite the evidence being that very few people subject to the benefits cap would in fact be incentivised to work [23-29] and without any consideration of how a belief as to outcomes, without reliable evidence that the impugned measure will help achieve the desired outcome, can amount to a “reasonable” foundation.  Lady Hale did engage with that question, through the lens of whether the revised benefit cap is rationally related to the legitimate aims relied on by the Government [152-153]. In circumstances where the evidence failed to demonstrate that the revised cap is capable of achieving its aims (i.e. of incentivising work), it failed to strike a fair balance, and the treatment of the appellants was not justified. Because she reached that conclusion, she would have allowed the appeal.

Lord Kerr, as above, considered that the “manifestly without reasonable foundation” test is not the right test to be applied by the domestic courts, and that the proper approach to be taken to justification is the conventional four-stage approach to proportionality ((1) is there a legitimate aim sufficiently important to limit a fundamental right? (2) is the measure rationally connected to the legitimate aim? (3) is it no more than necessary? (4) has a fair balance been struck?) with the final question in this context being “whether the government has established that there is a reasonable foundation for its conclusion that a fair balance has been struck” [177]. He would have found that the Government’s failure to exempt the appellants from the revised benefits cap was unlawful.

The application of UNCRC in domestic law

One other feature of these cases is worth commenting on. The appellants relied on the UN Convention on the Rights of the Child, an international treaty which has not been incorporated into domestic law. The court gave some consideration to its relevance and application in a domestic case. Lord Wilson began by providing a summary of the divergent views of the court as to the relevance of UNCRC in the previous benefits cap case [73]. He held that, given that the children themselves were pleaded as victims of discrimination in this case, it was relevantly different from the previous benefits cap case, and their rights should be construed in light of the UNCRC “which identifies the level of consideration which should have been given to their interests before subjecting their households to the revised cap” [76]. He also, however, found that the adults’ rights require the court to take into account the provisions of the UNCRC, because the adults’ status as lone parents is contingent on their children, and their interests are therefore indistinguishable from their children’s [77-78]. He therefore reached the important conclusion that the provisions of UNCRC were relevant to the court’s consideration of the issues in these cases – but he concluded “by a narrow margin” that its provisions were not breached [87]. That UNCRC had not (in his view) been breached contributed to his conclusion that the Government had justified the treatment complained of by the appellants.

Please see Part One here.