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Summary

The claimant suffered from foot and ankle problems, anxiety and depression. On a reapplication of the work capability assessment 0/1/CA), she was scored 0 points. Her appeal to the First-tier Tribunal was rejected. Regarding Activity 1 of the WCA (mobilising), the tribunal held that although the claimant could not walk far and may not be able to use crutches, she did not suffer from upper body problems and could be expected to mobilise by using a wheelchair.

Judge Gamble allowed the claimant's further appeal and remitted the case to a fresh tribunal. The tribunal had erred in applying Activity 1. The test was of the claimant's ability to mobilise including by using a wheelchair or other aid, if such an aid could 'reasonably be used'. The tribunal had not applied this reasonableness test properly. It had only considered her upper body strength. As her representative contended (and as supported by the Secretary of State and accepted by Judge Gamble), the tribunal should have made findings of fact at least about whether there had been any medical advice to use or not to use a wheelchair, whether the claimant would in reality have access to a wheelchair, and whether one would be suitable for her given that she lived in an upstairs tenement flat. The judge thought that 'in almost every case', such considerations or similar ones should apply, although the activity must always be applied on an individual basis (paragraph 9).

Note: the wording of the Activity was amended slightly from 28 January 2013 by SI 2012 No.3O96, but not so as to remove the reasonableness test. However, see also MG v Department for Social Development (ESA).

Summary

In this decision, the Court of Appeal holds that it has jurisdiction (under the Tribunals, Courts and Enforcement Act 2007 – ‘the Act’) to consider an appeal against a decision of the Upper Tribunal refusing to set aside its earlier refusal of permission to appeal. Although the Court had such jurisdiction, that did not mean that the Upper Tribunal’s original refusal to grant permission was also appealable to the Court. 

The claimant, having lost her personal independence payment (PIP) appeal at the First-tier Tribunal, was refused permission to appeal to the Upper Tribunal, first by the First- tier Tribunal and then by the Upper Tribunal. She then asked for that latter refusal to be set aside, under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008 No.2698. The Upper Tribunal refused to set the refusal aside, holding that it was not (as required by regulation 43) ‘in the interests of justice’ to do so and that there had been no ‘procedural irregularity’ in the Upper Tribunal’s refusal to grant permission to appeal. 

In the Court of Appeal, Lord Justice Lewis held, 

‘...I am satisfied that section 13 of the Act confers jurisdiction on the Court of Appeal to consider an appeal against a decision of the Upper Tribunal refusing to set-aside its earlier decision refusing permission to appeal to the Upper Tribunal against a decision of the First- tier Tribunal. Any such appeal would, however, have to be based on arguable grounds that the Upper Tribunal erred in considering that that it was not in the interests of justice or in finding that there was no procedural error or irregularity in the proceedings in the Upper Tribunal as specified in rule 43. The appeal would not be an appeal against the refusal of permission. It would be an appeal against the refusal to set aside.’

Decision in brief

Three-month period from which claimant must be entitled begins on the day the claim is determined, not the earlier date on which the claim is received - late appeal where both any time revision and official error supersession refused - appeal can be made against official error supersession decision and appeal time limit runs from date of that decision

Summary

The claimant was able to get HB as a full-time student. He chose not to take out a student loan for fees and maintenance, based on his conscientious belief that charging and paying interest were forbidden by his religion (the claimant was a Muslim). He supplied the money himself from his savings and through part-time work. The local authority treated the claimant as having income based on the student loan he could have taken out, and as a result, his income was too high to qualify for HB. The First-tier Tribunal refused the claimant’s appeal. 

Judge Poynter allowed the claimant’s further appeal and substituted a decision that the claimant was not to be treated as possessing the student loan. The relevant rule was at regulation 64(3) of the Housing Benefit Regulations 2006, SI No.213. That requires that a student is treated as possessing a student loan in respect of an academic year where ‘he could acquire a student or a postgraduate loan in respect of that year by taking reasonable steps to do so’. On the facts of this case, it was not a reasonable step for the claimant to have taken a loan. The correct approach involved disapplying previous authority on this, that of Commissioner (as he then was) Powell in CH/4429/2006. That decision held that the word ‘reasonable’ in the rule was merely about the mechanical steps necessary to take out the loan and not matters such as the motives and religious beliefs of the claimant.

Judge Poynter declined to follow CH/4429/2006 as he considered it wrongly decided. Instead, he decided that ‘a judgment as to what is reasonable falls to be made having regard to all the personal circumstances of a claimant and, of course, all the other relevant circumstances’ (paragraph 8). In this case, although the claimant undoubtedly had the capacity to take the steps required to acquire the loan, it ‘would not have been reasonable for him to have violated his strongly held and conscientious religious beliefs by doing so’ (paragraph 9). The judge emphasised the fact-sensitive and personal nature of his judgment. It was not a decision that all Muslim students who do not take out a student loan are similarly exempt from the rule, or that students of other religions, or none, must always have the notional loan applied to them (and so Judge Poynter rejected the argument of the Secretary of State that his decision would involve a breach of the Equality Act 2010 regarding students of no religion). Contrary to CH/4492/2006, considered Judge Poynter, one of the ‘reasonable steps’ under regulation 64(3) was deciding whether to apply for a loan; it followed that the decision maker must be satisfied that it would have been a reasonable step for the claimant to have applied for a loan before he could be treated as notionally possessing one. There was nothing mechanical about the claimant’s choice there: ‘even those students whose only concerns are that they do not wish to leave university with a substantial amount of debt’, held Judge Poynter, ‘will need to undertake some moderately complex calculations’ to decide if they could manage without the loan (paragraph 95). The judge disagreed with the Secretary of State that interpreting regulation 64(3) as he had done would be administratively unworkable and invite ‘potentially opportunistic’ claims (paragraph 144). Most students simply cannot get HB anyway; and students who wish to make an ‘opportunistic’ claim would actually have to decline the student loan for which they were eligible, and somehow fund their tuition and maintenance themselves – with earnings taken into account for HB. 

‘Finally’, held the judge, ‘if the position is still insufficiently clear, then under the principles established by the House of Lords in Kerr v Department of Social Development, [2004] UKHL 23 (also reported as R 1/04 (SF)), it is for claimants to establish that their objections to taking out student loans are principled and conscientiously held and are not merely an attempt to obtain a perceived financial advantage’ (paragraph 66).

Comment from CPAG

Thanks to the claimant for sending us this decision. Both it and CH/4429/2006 are decisions of a single Judge of the Upper Tribunal/Commissioner and, in that sense, are of equal weight. However, the present decision is the most recent and has the advantage of a lengthy review of the reasoning of CH/4429/2006, so it should be preferred. It is a significant change in the approach to what the ‘reasonable steps’ are for treating a claimant as notionally entitled to a student loan. However, the judge’s caveats about the fact-sensitive nature of the judgment and the requirement for the claimant’s objection to the loan being ‘principled and conscientiously held’ are important.

Summary

The claimant was entitled to both child tax credit (CTC) and working tax credit (WTC). She left the UK for temporary absences in Spain during 2020, including for just over 11 weeks in July, just over two weeks in September and about 13 and a half weeks in October. She had left to seek work in Spain following the cancellation of her work in the UK due to the pandemic. On each occasion, she expected to be absent just for a few weeks; but on each occasion her return to the UK was delayed by Covid-related travel problems such as cancelled flights and the need to quarantine. In February 2021, HMRC (on review) decided that she was not entitled to tax credits from the point in August 2020 when she had been absent from the UK for more than eight weeks. Following mandatory reconsideration, the claimant appealed and in August 2021 the First-tier Tribunal dismissed the appeal. 

Judge Buley KC dismissed the claimant’s further appeal regarding WTC entitlement but held that European co-ordination rules provided for a different outcome in CTC. Permission to appeal had been granted on the basis that it might be desirable for the Upper Tribunal to give guidance on cases (such as this) where, due to the pandemic, a tax credit claimant had not been able to comply with the so-called ‘eight-week rule’ (common to WTC and CTC), under which for tax credits any temporary absence should as a default not exceed eight weeks. However, the judge found that there was no exception to that rule, which was at regulation 4 of the Tax Credits (Residence) Regulations 2003, SI 2003 No.654. The judge concluded (paragraph 3) that no legislative ‘easement’ or amendment had been made during the pandemic, and that ‘the eight-week rule does not admit of any possibility of extension’. Although HMRC ‘appears to consider that it has a discretion, in exceptional cases, to waive the requirements of the eight- week rule’ (HMRC referred to ‘powers of payment and management’), the extent of that was unclear. The judge ‘strongly’ doubted that HMRC was correct to believe it had such a power (without definitively ruling on the point). In any case, such discretion was not the subject of the appeal jurisdiction, and ‘tribunals have no power or discretion to extend time by reference to extenuating reasons for the person’s absence beyond 8 weeks’.

However, the judge also noted that the eight- week rule did not apply in CTC cases where the claimant’s absence from the UK was in an EU member state. This was because of the co-ordination provisions in EU Regulation 883/2004, which applied to CTC as a ‘family benefit’ for the purposes of the regulation. HMRC conceded that in relevant cases a claimant satisfies the requirement to be present in the UK even though in an EU member state. ‘In such cases’, said the judge, ‘for so long as it continued to apply, HMRC concedes that the effect of EU Reg 883/04, “on the coordination of social security systems”, is that the 8-week rule could not apply to a person whose absence from the UK was occasioned by their presence in an EU Member State. This rule under Reg 883/04 was not in any direct way linked to the Covid-19 pandemic, and will apply regardless of the reason for absence from the UK in excess of 8 weeks, but it would continue to apply at least for much of the period of the pandemic (at least until the end of the “implementation period” of the UK’s exit from the EU, on 31 December 2020)’ (paragraph 3(ii)). Regarding the period after 31 December 2020, the judge said that given the complexities of the status of retained EU law, ‘I make no comment one way or another as to its relevance thereafter’ (paragraph 51). 

Comment from CPAG

The judge’s views on the correctness of HMRC’s views on its ability to waive the eight-week rule are clear, although not strictly binding. HMRC’s concession on the possible application of EU Regulation 833/2004 in the temporary absence context is, as the judge says, significant: ‘since it appears that it must apply to every claimant for CTC who travels to an EU member state rather than to any other country outside of the EU, with the result that, for such persons, there is no rule that limits their absence from the UK to a period of 8 weeks. That will have consequences not only for those prevented from returning to the UK by reason of Covid- related travel restrictions, but also for those who do not return for any other reason’ (paragraph 51).

Summary

The claimant had long-standing anxiety and depression, and chronic pain in his back and legs. On transfer to ESA, he was considered to have limited capability for work, but was put in the work-related activity group (ie, not the support group) on the basis that he did not have limited capability for work-related activity. He appealed, arguing that he did have limited capability for work-related activity on the basis that he satisfied the mobilising descriptor and also that he should in any case be treated as satisfying the test on the basis that, were he not to, there would be a 'substantial risk' to his health from having to carry out work-related activity. The First-tier Tribunal dismissed his appeal.

Judge Bano allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in holding that there was no substantial risk to the claimant as he had been able to attend medical appointments and interact with the tribunal. That was to misapply the substantial risk provision at regulation 35 of the Employment and Support Allowance Regulations 2008, SI No.794, as that activity was not comparable with work-related activity, and in any case, the test was concerned with identifying the risks to a claimant if required to perform work-related activity, not with what the claimant can do (paragraph 6).

Also, the tribunal was wrong to adopt the Secretary of State's submission that the claimant had not provided sufficient evidence to demonstrate that work-related activity would pose a substantial risk to his health. The submission from the claimant's representative referred to evidence from the claimant's GP about this, and in any case (especially given that the original decision maker and the submission writer for the Secretary of State had made no reference to regulation 35), 'the claimant could not be expected to identify risks to his health from work-related activity without knowing what such activity might entail in his case' (paragraph 5).

Note: thanks to Jo McLaughlin of The Action Group, the claimant's representative, for sending us this decision. We understand that in a submission to the Upper Tribunal, the Secretary of State indicated some of the activities that may, depending on the individual facts of the case, be considered as work-related activity (but note these were not referred to in the decision itself): CV writing; attending confidence building course; basic skills; participating in basic literacy or numeracy courses; participating in English language training. In AK v SSWP (ESA) [2013] UKUT 435 (AAC) (file number CE/3916/2012) (9 August 2013) the Secretary of State provided a very similar list of possible work-related activity, with the addition of 'work experience' and 'mandatory work placements for community benefit'. Judge White said in that decision (paragraph 18) that where evidence is not available, the tribunal could use examples of work-related activity from within its own knowledge, and in this case, the tribunal did not err in referring to 'interviews, retraining and therapy'. But very arguably that is incorrect: see MT v SSWP (ESA).

Summary

The claimant was an adult British citizen who lived in South Africa from 2001 until 2021. She had planned to return to the UK in 2019 but suffered a serious brain injury in 2018 and, despite her repeated requests, the doctors treating her refused to agree to her return. Following further trauma when she was the victim of a gang rape in 2021, the doctors relented and agreed to support her return to the UK. Following her return, her claim for PIP (made just over a fortnight later) was refused on the basis that she did not meet the past presence test (PPT). The First-tier Tribunal refused her appeal on the basis that, despite the circumstances of the delay in the claimant’s coming to the UK, no legal basis for exemption from the PPT could be identified. 

Judge Wikeley refused the claimant’s further appeal, holding that the tribunal had not erred. The relevant legislation for the PPT in PIP was regulation 16 of the Personal Independence Payment Regulations 2013, SI No.377. That requires that the person has been present in Great Britain for at least 104 weeks out of the 156 weeks immediately preceding the claim. The claimant’s first argument was that she should be entitled to PIP (ie, without a PPT) as a returning British citizen. However, pointed out the judge, the nationality or citizenship of the claimant is not a relevant criterion in the PIP rules, including for the PPT. Her second argument was that her circumstances effectively prevented her from returning to the UK when she intended to in 2019. But there were only limited exceptions to the PPT in the law, and none of those assisted her. There was an exception for those who were temporarily absent from Great Britain to receive medical treatment, but that only covered medical treatment for a condition which commenced before the claimant left Great Britain, which was not the case here, and none of the other exceptions could, said Judge Wikeley, ‘even remotely’ assist the claimant (paragraph 12). 

The judge considered the claimant’s legal position not dissimilar to that of the claimant in HRA v SSWP (PIP) [2023] UKUT 109, where the claimant had been detained against his will in prison in Afghanistan for several years. Again, the claimant was unsuccessful because none of the exceptions to the PPT applied, and there was no discretionary power to add to them. Previous caselaw (FM v SSWP (DLA) [2017] UKUT 380 (AAC); [2019] AACR 9, and TS v SSWP (DLA); EK v SSWP (DLA) [2020] UKUT 284 (AAC); [2021] AACR 4) had already held that the PPT was not in itself unlawful on human rights grounds. ‘So’, said Judge Wikeley in the present case, ‘just as the absence of any broadly-worded catch-all exception’ was fatal to the claimant’s argument in that case, so too it was fatal to the arguments of the claimant in this case (paragraph 14).

Summary

The claimant had three children. The first two (ie, the eldest and second eldest) were both born as a result of non-consensual conceptions. The youngest child was conceived in a stable and consensual relationship. Originally, the claimant had only two of the children (the second eldest and the youngest) living with her and got child elements for both. When the eldest child joined the household (having previously been in local authority care), the two-child limit was applied, so the child element was no longer included for the youngest child. The decision was upheld by the First-tier Tribunal. 

Judge Wikeley dismissed the claimant’s further appeal. The tribunal had not erred. 13 relevant rules (regulation 24A of the Universal Credit Regulations 2013, SI 2013 No.376) provide that exceptions from the two-child limit (including that for a child born as a result of a non-consensual conception) may apply for a ‘third and any subsequent’ child. Further (under regulation 24B), a chronological order is given to the children, taking the earliest born first. In this case, the third child was the youngest child. As that child was not born as a result of a non-consensual conception, and therefore the exception did not apply, it followed that the two-child limit applied so as to refuse a child element for that child. 

More widely, the Supreme Court had already decided, in R (SC, CB and 8 children) v Secretary of State for Work and Pensions [2021] UKSC 26, that the two-child limit was not in breach of human rights provisions. The claimant’s representative argued that the ordering in regulation 24B should be disapplied. But that could only be on the basis of a human rights challenge or judicial review. The human rights ground had been ‘comprehensively closed off’ by the Supreme Court in SC (paragraph 29). The judge then reflected: ‘A judicial review challenge, alleging irrationality in the terms of the ordering provision, might well have a more promising prospect of success’ (paragraph 30). But these were not judicial review proceedings, so (in the present decision) there was no possibility of success there either. 

Comment from CPAG

The application of the rules to the facts in this case illustrates the harshness that can result from the two-child limit, a result not objected to (albeit on different facts) by the Supreme Court in SC. Nevertheless, the judge’s comments on the potential strength of a judicial review argument for irrationality in the ordering provisions in regulation 24B, based on the facts in this case, are noteworthy.

Summary

The claimant was entitled to a category A retirement pension. It included an additional pension based on her additional national insurance contributions under the SERPS scheme. Her late husband had also been entitled to a category A retirement pension. But (unlike the claimant) he had ‘contracted out’ of the SERPS scheme, had a smaller additional pension and had built up a ‘guaranteed minimum pension’ (GMP) in his occupational pension. Following his death, the claimant became entitled a widow’s pension from her husband’s occupational pension, which included a GMP of £53.21 a week. The Secretary of State made a ‘contracting-out’ deduction of that from the claimant’s retirement pension (which remained her own category A pension, as that was worth more than her category B retirement pension as a widow). The preceding decision of the Upper Tribunal held the deduction unlawful, emphasising that the claimant had not inherited any part of her late husband’s state pension and remained instead on her own category A retirement pension based entirely on her own contributions. 

The Court of Appeal upheld the Secretary of State’s further appeal, holding that a deduction did fall to be made. The relevant law under consideration by the Court was section 46(1) of the Pension Schemes Act 1993 (the ‘PSA 1993’). That deals with the effect of GMP on social security benefits and provides, among other things, that where ‘a person’ is entitled to both a category A retirement pension and to one or more GMPs, the category A retirement pension is reduced by the additional pension or the GMP, whichever is the less. 

The Court of Appeal unanimously agreed that the Upper Tribunal had erred in the construction of section 46 of the PSA 1993 in concluding that a deduction could not be made in respect of the GMP the claimant inherited from her husband. Giving the lead decision of the Court, Lord Justice Nugee said that on the ‘plain wording’ of section 46, a deduction fell to be made, and that was ‘entirely consistent’ with examples of how the deduction would work in other possible scenarios (paragraph 60).

Decision in brief

FE v SSWP (RP) [2019] UKUT 61 (AAC) applied and approved – exclusion of period of residence in Australia not in breach of claimant’s human rights under Article 14 read with Article 8 of the European Convention on Human Rights – calculation of the claimant’s pension a ‘purely financial consideration’ with too tenuous a link to private and family life – residence in Australia not an ‘other status’ for Article 14 (prohibition on discrimination) as although residence in New Zealand and Canada treated differently, that is because those countries have an applicable reciprocal agreement with the UK and UK government choice not to legislate in the same way regarding Australia not unlawful on grounds of being unjustified

Summary

The claimants were a ‘mixed-aged’ couple for UC. They claimed UC with the pension-age member of the couple formerly being the one who had been entitled to income-related employment and support allowance (ESA). Her entitlement to that came to an end when she reached pension age; however, she was not informed of the ending of the ESA until several days after that date. Consequently, she was not entitled to ESA when the joint claim for UC was made. Although (the pension-age member having been in the support group for ESA) a limited capability for work-related activity (LCWRA) element fell to be included in the UC, the DWP applied a waiting, or ‘relevant’, period of three months before it could be included. The claimant argued the failure to award the LCWRA from the start of the award was in breach of her human rights as discrimination on the basis of age. That was rejected by the First-tier Tribunal, who held there was no relevant exception to the application of the relevant period for the relevant rule (at regulation 28 of the Universal Credit Regulations 2023), although without actually explaining why that was not in breach of the claimant’s human rights. 

Judge Wright allowed the claimant’s further appeal and substituted a decision that no relevant period fell to be applied before the LCWRA was included in the UC award. It was true that neither regulation 28 nor regulations 19 or 21 of the Universal Credit (Transitional Provisions) Regulations 2014 provided for an exception to the relevant period, as the claimant had, because of her age, not been entitled either to ESA or (as it possible for someone under pension age) national insurance credits for LCWRA at the time of the UC claim. The failure of the rules to disapply the relevant period in a situation like this was in breach of human rights law as discrimination on grounds of age. The tribunal had failed to engage in any proper sense with the claimant’s human rights argument, rendering its reasoning ‘woefully inadequate’ (paragraph 10). Specifically, Article 14 (prohibition of discrimination) of the European Convention on Human Rights (the ECHR), read with Article 1 of Protocol 1 (right to property) had been breached. The judge held that in the light of that, it was required in this case to apply the rules so as to avoid the discrimination (by section 6(1) and (3)(a) of the Human Rights Act 1998), with the result that the LCWRA element was to be included from the start of the UC award. 

Before the Upper Tribunal, the Secretary of State made no attempt to argue that the rules did not discriminate against the claimant on grounds of age (and so accepted that Article 14 of the ECHR was breached). The Secretary of State further accepted that, if Article 1 of Protocol 1 applied, then the remedy to the discrimination was to the three-month relevant period in regulation 28 in this case. Rather, in opposing the appeal, the Secretary of State argued that the relevant period for the LCWRA was not within the ambit (ie, the scope) of Article 1 of Protocol, as it was not a ‘condition of entitlement’ at all, but rather merely a rule about the ‘mechanism and timing of payment’ of the LCWRA (paragraph 42). But Judge Wright rejected that argument. The seminal decision on whether and when social security benefits constituted ‘possessions’ for such purposes was that of the European Court of Human Rights in Stec v United Kingdom (2005) 41 EHRR SE 18. At paragraph 54 of that decision, the court did indeed refer to the claimant having unable to ‘receive’ all or part of a benefit by a particular ‘condition of entitlement’. But that phrase was not to be given a ‘narrow or technical’ legal meaning, and the correct approach was rather to identify the ‘substantive effect’ of the rule on the claimant receiving their benefit (paragraph 44). That was supported by the decision in R (RJM) v SSWP [2008] UKHL 63, reported as [2009] 1 AC 311, which was about the amount of income support (IS) the claimant was entitled to, in particular the inclusion of the disability premium, and that was a ‘possession’ for Article 1 of Protocol 1. Although IS was different to UC, the judge considered that the same reasoning applied to the LCWRA element to which the claimant in this case had been ‘in substance’ not entitled to for the first three months of the award (paragraphs 45–46). The Secretary of State’s argument that regulation 28 was concerned only with mechanism and timing of payment was ‘unreal’ (paragraph 50). The practical effect of the rule was that someone subject to the relevant period would never receive the LCWRA element for the first 13 weeks of their UC award. 

Comment from CPAG

This decision is notable as a reminder that a statutory rule can be held to be in breach of human rights by a tribunal and that, in some cases, it will be an available remedy to comply with the basic requirement to apply it so as to avoid such a breach.

For further information see our test case update: Three month wait for UC LCWRA element not applicable to claimant member of mixed age couple who reached pensionable age before claiming UC.

Summary

In this decision, the High Court dismissed an argument that, in the rules on exception to the two-child limit in UC for a child born as a result of a non-consensual conception, it was unlawful not to apply the exception where the child was the claimant’s first or second child rather than their third or subsequent child. 

The claimants were mothers who each had two or more children conceived in abusive relationships where they were teenagers. One of the mothers later had two more children, both conceived consensually, while the other had an older child returned to her from local authority care. Both then had the two-child limit applied to their UC. Under the relevant ‘ordering’ rule at regulations 24A and 24B of the Universal Credit Regulations 2013, SI No.376, the exception for non-consensual conception can only be applied regarding a child so conceived where that child is the claimant’s third or subsequent child. So no exception was applied in respect of the first and second children of the claimants, even though they had been conceived non-consensually. On application for judicial review, it was argued that that was unlawful as discrimination contrary to Article 14 of the European Convention on Human Rights (ECHR) – as a breach of duty to protect the claimants from inhuman or degrading treatment contrary to Article 3 of the ECHR – and on the ground of irrationality as a matter of public law. 

In the High Court, Mrs Justice Collins Rice DBE CB rejected those arguments. Regarding alleged discrimination, differences in the treatment of the claimants, or allegedly unlawful failure to treat them differently, were justified and so not unlawful. The judge was unpersuaded by arguments that parents of non-consensually conceived children who are not their third or subsequent child are treated differently from parents who have adopted or are caring for other people’s children. In such cases, following amendments introduced in 2018, the ordering rule does provide an exception even if the child is the first or second child. Under the Children Act 1989, parents of non-consensually conceived children automatically have parental responsibility for them, in contrast to adopters and non-parental carers, who decide to take on such responsibility. That was important: ‘The regulations’ differential treatment of biological mothers on the one hand and adopters and nonparental carers on the other is rooted in a legal principle that they are not analogous: the former have automatic default parental responsibility, and the latter do not’ (paragraph 47).

Regarding the fact that the claimants were treated the same as parents of consensually conceived children, the judge noted that ministers had rejected the proposal that, having provided an exception in the ordering rules for non-parental carers, the same ought to be done for parents of non-consensually conceived children. The judge reminded herself (at various points throughout the judgment, including here) of the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2022] AC 225, in which the two-child limit was held to have been a legitimate measure introduced with limiting welfare costs in mind after careful scrutiny by parliament, with the courts in no position to decide where the balance should be struck between the interests of claimants with children on the one hand and the interests of the community as a whole on the other. Ultimately for the judge, that directed the judgment in the present case: ‘The competing arguments about where a “fair and reasonable” balance can be struck in this matter are not the sorts of argument a court can legitimately arbitrate or, where they have been settled in a contested political process, with which a court can legitimately interfere’ (paragraph 99); and ‘In my judgment, the question of justification again ultimately resolves itself into a question of whether or not the solution we have at present was the right policy decision, whether or not the regulations amount to “wise legislation”, and which of two competing versions of socio-economic fairness should prevail. Like the two-child limitation itself, this was at the time, and remains, a question of intense political controversy. It cannot be answered by a process of legal reasoning’ (paragraph 107). As the ordering rule was justified, it could not therefore also be ‘irrational’, so the argument on that point was bound to fail too. 

Regarding inhuman and degrading treatment, the starting point for the claimants was that they had experienced such treatment at the hands of their perpetrators. It was argued that the consequent failure to provide financial support for all their children had been degrading and risked not merely acute poverty but a return to conditions of violence. But the judge reminded herself that the Article 3 duty is on the state to not itself directly subject people to inhuman and degrading treatment by its own agents. That was clearly not the case here. That left the argument that the state had a positive duty, triggered by the inhuman and degrading treatment inflicted by the perpetrators, to do something demanded by Article 3. But the judge could not see any such duty in this context. 

Comment from CPAG

CPAG has permission to appeal to the Court of Appeal. Clearly, the outcome of any such challenge would involve further consideration of the finding, reflected in the judge’s closing remarks, that this matter is ‘a policy question dealing in social, economic, moral and ethical subject matter’ and ‘a political law-reform question’ – and so not a legal one.

For further details see our test case update: Two-child limit non-consensual conception exception ordering rule.