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Decision in brief

Entitlement stopped when claimant claimed tax-free childcare (refused) – attempted to make a new claim for tax credits in August 2019 – not possible due to introduction of UC – savings rule at Article 7(6) of SI 2015 No.634 (‘the No.23 Order’) did not apply as the August claim was not, as required, ‘for the next tax year’

Summary

On 2 October 2017, the claimant’s entitlement to carer’s allowance (CA) was removed, on the basis that the daily living component of personal independence payment (PIP) was no longer payable to the disabled person being cared for. That PIP decision had subsequently been overturned on appeal. On 24 April 2020, the Secretary of State refused to reinstate the CA from 2 October 2017 (it would seem that decision was on the basis that the 2 October 2017 decision was not considered to have arisen from an official error). The First-tier Tribunal refused the claimant’s appeal. 

Judge Wright allowed the claimant’s appeal and remitted the case to a fresh tribunal. The tribunal had failed to apply the relevant law. It was not disputed that the tribunal had, and has, jurisdiction to consider the 24 April 2020 decision to determine whether the 2 October 2017 decision arose from an official error. The decision in PH v SSWP (DLA) [2018] UKUT 404 (AAC), reported as [2019] AACR 14, seemed to support that and the new tribunal should proceed on that basis. 

Regarding whether the 2 October decision arose from an official error, authority was to be found in CH/943/2003 and GH v Scarborough BC (HB) [2015] UKUT 197 (AAC). Those cases had considered whether there were grounds for a revision of a decision for ‘official error’ under regulation 1(3) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. The tribunal had erred in failing to apply those decisions. They were both in the context of overpayments of housing benefit but were nevertheless relevant as they considered whether an official error can be said to have arisen in a decision maker’s decision where an appeal tribunal later overturns a linked decision. Judge Wright referred in particular to paragraphs 22–25 of GH (which, although not reproduced or described by Judge Wright in the present decision, provide that ‘official error’ has occurred in these circumstances). 

Comment from CPAG

Although this decision is short and leaves it for the new tribunal to decide whether the claimant should succeed, it would seem to support the view that where, as here, a decision (eg, regarding entitlement to CA) is based on a linked decision (eg, regarding entitlement to PIP) which is later overturned on appeal, then the decision will fall to be revised on the basis of official error.

Summary

The claimant had originally been awarded PIP, including two points regarding problems with making budgeting decisions under Activity 10 of the daily living component. In January 2017 those points were removed. Further supersessions took place in 2019 and 2022, the latter restoring the Activity 10 points. In 2022, the Department made further decisions (followed by mandatory reconsideration notices) in the light of ‘LEAP’ (legal entitlements and administrative practices) exercises to correct mistakes (identified in caselaw) in the official approach to the award of points under Activities 3 and 9. Although dealing with entitlement during all the past periods, these LEAP decisions dealt solely with the Activity 3 and 9 issues, and did not reinstate the two points under Activity 10 for 2017–2022. On appeal against those decisions, the First-tier Tribunal held that it had no jurisdiction to consider disputes other than the Activities 3 and 9 points that were the subject of the LEAP exercises. 

Judge Wikeley allowed the claimant’s further appeal and substituted a decision to the effect that the claimant was entitled (on the available evidence) to the two points regarding Activity 10 from the point that they had been removed in January 2017. In this case, in effect the LEAP decisions had refused to revise the January 2017 decision for official error, and so there had been a mandatory reconsideration of that decision and, on appeal, the tribunal did have jurisdiction about the Activity 10 issue too. 

The tribunal would have been correct if was considering the January 2017 decision ‘simply on the basis that the decision maker’s view of the law was inconsistent’ with that set out in the caselaw behind the LEAP exercise (paragraph 39). But that was not the end of the matter. The Secretary of State submitted that if the LEAP decisions could properly be regarded as following a ‘non-hopeless application for an any-time official error revision’ of the January 2017 decision, then they contained a refusal to revise the decision on that ground, so providing jurisdiction for the tribunal to consider it in its entirety, per PH v SSWP (DLA). The judge was aware of ‘some uncertainty’ on the scope of issue in a LEAP appeal where the decision was being revised for error of law, and that ‘one view’ was that only issues that flowed from the error of law that was the subject of the LEAP exercise could be considered (paragraph 41). Although this was ‘not the case to resolve those difficulties’, the judge accepted that in this case (1) the claimant had asked for the decision concerning her entitlement from January 2017 to be reconsidered, (2) that request ‘was in no way hopeless’, not least because the relevant caselaw in the LEAP exercise dated from before the January 2017 decision, (3) the LEAP decision ‘could be properly understood to include a refusal to revise’ the January 2017 decision, and (4) the appellant had a right of appeal against that refusal (paragraph 42). 

Comment from CPAG

This decision is not straightforward authority that tribunals considering appeals following LEAP decisions can always consider matters not specifically at issue in the LEAP exercise. However, at the very least this is an example of a case in which, on the facts, that was accepted.

Summary

The claimant’s request for a mandatory reconsideration of his tax credits decision was made 35 days outside the standard 30-day time limit for making such a request (but within the absolute time limit of 13 months). HM Revenue and Customs (HMRC) determined that the request was late and that therefore it would only consider it in ‘special circumstances’. It said the request could not be accepted, although the decision about this indicated that HMRC had taken into account the claimant’s reasons for lateness (he reported language problems and illness) and the alleged error (mistake about his self-employed status and income). The First-tier Tribunal struck out the claimant’s appeal, holding it had no jurisdiction as there had been no mandatory reconsideration and therefore there was no right of appeal.

Judge Scolding QC allowed the claimant’s appeal against the strike-out, reinstated the claimant’s appeal and directed the First-tier Tribunal to consider it. The tribunal had erred in holding that it had no jurisdiction. The correct position was that HMRC had carried out a mandatory reconsideration, and so therefore the claimant did have the right of appeal. In so holding, the judge had reference to the decision of the tribunal of judges in R (CJ) v SSWP (ESA) [2017] UKUT 324, reported as [2018] AACR 5, a decision that held that for benefits there was a right of appeal where a mandatory reconsideration had been made late (but within the absolute 13-month time limit) and the DWP had refused to admit it.

In argument before the judge, HMRC submitted that the present case was distinguishable from that in CJ, as that was a benefits case, and the relevant law for tax credits was materially different. Section 38(1A) of the Tax Credits Act 2002 requires a mandatory reconsideration (referred to there as a ‘review’) to have been ‘carried out’ in order for appeal rights to arise; it was submitted that, therefore, where HMRC had refused to accept the late appeal, there had been no mandatory reconsideration. But the judge rejected that. The rules for benefits and tax credits, although differently worded, had ‘the same statutory purpose’, which was to ‘create a state prior to an appeal where the Secretaries of State for Work and Pensions or HMRC can consider the decision again in order to reduce the number of appeals’ (paragraph 17). There was no intention of reducing appeal rights. Applying the reasoning in CJ, and so bearing in mind considerations such as common law fairness and the right to a fair trial in Article 6 of the European Convention on Human Rights, the judge held that ‘carrying out a review’ under section 38(1A) of the Tax Credits Act 2002 ‘must include considering whether to extend time to carry out the review’. HMRC’s contention that there had been no review ‘failed to grapple adequately’ with the fact that the decision about that implicitly sought to uphold the original decision. As in CJ, the availability of judicial review was not an adequate substitute for appeal rights in such cases (paragraph 27).

Comment from CPAG

Thanks to Joe Power of Kirklees Citizens Advice and Law Centre for sending us this decision. The decision is an explicit rebuttal of HMRC’s long-held argument that the wording of the relevant tax credit legislation required a different (and restrictive) approach regarding appeal rights after a late mandatory reconsideration to that taken, following the decision in CJ, to benefits. There is indeed no good reason why the tax credits position should be different; however, it remains to be seen if HMRC is to seek to appeal further

Summary

This is the decision of the Court of Appeal on the claimant’s (MK’s) appeal against the decision of the Upper Tribunal in HM v SSWP (BB); MK v SSWP (BB) [2023] UKUT 15 (AAC). The Court of Appeal dismissed the claimant’s further appeal. 

The claimant had been unmarried to her late partner. Her February 2017 claim for ‘bereavement benefit’ (ie, bereavement payment and bereavement allowance where no dependent children, under sections 36 and 39B respectively of the Contributions and Benefits Act 1992, both of which were repealed on 6 April 2017) was refused. That was because entitlement depended on the claimant having been married or in a civil partnership with her late partner. In the Upper Tribunal (UT), the claimant’s arguments based on discrimination on marital status or sex grounds were dismissed. Although the UT considered that, because at the time civil partnership was not available to different-sex couples, there had been discrimination between the claimants and same-sex couples (as in Steinfeld v Secretary of State for International Development [2018] UKSC 32; [2020] AC 1), it had no jurisdiction to make a declaration of incompatibility under section 4 of the Human Rights Act 1998. 

The claimant asked the court to use its jurisdiction to make such a declaration. A declaration under section 4 was only available in relation to the present effect of legislation. The benefits concerned had been abolished in April 2017. The claimant relied, for a finding of continuing incompatibility, on comparison with those in same-sex couples who, under transitional 2017 provisions, may have some limited continuing rights to them (essentially where they were entitled but had not yet been paid). However, the court considered that difference was solely based on the ‘different circumstances’ required by the transitional provisions rather than different sexual orientation (paragraph 80). 

Even if that were wrong, it would not be appropriate to make a declaration of incompatibility. The court agreed that the ‘real substance’ of the complaint in this case was the Steinfeld discrimination – ie, the unavailability of civil partnership for the claimant at the relevant time (paragraph 83). But that discrimination was now in the past and had been remedied by post-Steinfeld changes to the Civil Partnership Act 2004. It was not ‘remotely likely’ that government or parliament would respond a legislative remedy to a declaration of incompatibility which would have the retrospective effect the claimant argued for (paragraph 84).

Summary

The claimant had an accident at work and, just over two months later, claimed personal independence payment (PIP). He was awarded the standard rate of the daily living component. Following mandatory reconsideration, the claimant appealed. The First-tier Tribunal adjourned its in-person hearing twice, on the second occasion notifying the claimant that ‘...at your appeal hearing you may lose this benefit or it might be increased or stay the same’. The claimant failed to attend the third hearing, which this time went ahead. The tribunal removed the award on the basis that, at the time of the claim, the claimant did not satisfy the ‘required period’ condition to have had the requisite disabilities for three months. 

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. On the entitlement issue, the tribunal had erred by failing to have regard to the provision for an advance claim and of PIP at regulation 33 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 (SI No.380). As noted in EB v Secretary of State for Work and Pensions (PIP) [2017] UKUT 311 (AAC), that provided that a claimant may qualify for an advance award by satisfying the three-month period after the date on which the entitlement decision was made. 

The tribunal also erred by failing to give the claimant an adequate warning that it intended to reduce the award already made. The Secretary of State submitted that, although the tribunal had notified the claimant of the potential for an adverse decision, it did not correctly inform the claimant of its intention to disallow the award. The Secretary of State cited CPIP/3480/2016, which held in that case that at ‘...no point was the appellant made aware of the specific concerns of the tribunal...so as to enable him to prepare his case...’ (cited at paragraph 17 to the present decision). Judge Wikeley agreed. 

Comment from CPAG

This decision is further authority of the general need for the tribunal to give a specific warning of an intention actually to reduce the award (or otherwise make a more adverse decision) in that particular case. For similar previous authority, see BTC v SSWP [2015] UKUT 155 (AAC), RC v SSWP [2017] UKUT 139 (AAC), and LJ v SSWP (PIP) [2017] UKUT 455 (AAC).

Summary

The claimant was someone with limited capability for work-related activity (LCWRA) under the work capability assessment (WCA) and also a disability rights campaigner with a particular interest in social security rights. She argued that, in the 2023 consultation on reform of the WCA, the (then) Secretary of State for Work and Pensions had: (1) failed adequately to explain what the proposals on WCA reform actually were; (2) failed to explain the alleged true rationale for the proposals; (3) failed to provide adequate information about the impact of the proposals; and (4) failed to provide sufficient time for consultees to respond. 

In the High Court, Mr Justice Calver granted the declaration that the consultation was unlawful. He agreed (in essence) with the claimant’s arguments in (1), (2) and (4) and considered that the claimant had ‘surmounted the substantial hurdle of establishing that the consultation was so unfair as to be unlawful’. In so holding, he applied the common law duty of procedural fairness in the context of a public consultation, in particular the fundamental question of whether the consultation was ‘so unfair as to be unlawful’: R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074, reported as [2020] ELR 653 (paragraphs 68–69). The consultation was launched on 5 September 2023. Under eight weeks were allowed for responses. The proposals were: to potentially change the ‘mobilising’ activity in the WCA and the associated descriptors; to potentially change activities regarding bowel/bladder control, coping with social engagement and getting about and associated descriptors; to potentially change the ‘substantial risk’ exceptional circumstances rule. 

The judge noted that in announcing the consultation the Secretary of State ‘made no mention at all of the fiscal/welfare savings aspect of the proposed changes to the WCA, in particular of the fact that the proposals would result in people with LCWRA status losing their current benefit payment of £390.06 (now £416.19) per month; nor of the fact that for people with LCWRA status, the proposals would replace voluntary work related activity with compulsory work related activity’ (paragraph 86). Neither did the published consultation paper, which failed to state that the proposals would compel more people to look for work and engage in work-related activity. But these effects were well known to the Secretary of State. The judge agreed with the claimant that ‘it was not made adequately clear that the legislative proposals for the affected groups were to replace voluntary work-related activity with compulsory work related activity, and to reduce the income of a large number of claimants’ (paragraph 109). Also, both the Chair of the Work and Pensions Committee and various non-governmental organisations expressed concern about the rushed nature of the consultation exercise and the lack of any published analysis of the effects of the proposals. But no extension to the consultation period was made. The judge agreed that: ‘There is a strong evidential basis for finding that less than eight weeks for a consultation concerning such significant proposals was insufficient and so unfair as to be unlawful’ (paragraph 131).

Summary

In considering the claimant’s adult disability payment (ADP) appeal, the First-tier Tribunal for Scotland (FTS) found that he scored two points in each of daily living activities 1, 4, 6 and 9; and 10 points in mobility Activity 1 (for descriptor (d)). The claimant had contended for more points in the daily living activities, including four points in each of activities 7, 9 and 10.

Social Security Scotland appealed (and was granted permission) against the decision of the First-tier Tribunal regarding the tribunal’s decision in mobility Activity 1 (planning and following journeys). In the Upper Tribunal, Lady Carmichael allowed that, holding that the tribunal erred in its approach to mobility Activity 1 by failing to construe descriptor (d) as it was construed by the Upper Tribunal in MH v SSWP [2016] UKUT 531, reported as [2018] AACR 12. The appeal was remitted to a new tribunal in relation to mobility Activity 1 only.

Lady Carmichael also considered a separate point, regarding the jurisdiction of the Upper Tribunal to consider disputes with other findings of the tribunal, raised by the claimant in his response to Social Security Scotland’s appeal. The claimant, in responding, also attempted to dispute the approach of the tribunal to daily living activities 5, 7, and 9. The claimant argued that the tribunal had erred in not awarding him sufficient points in those activities, and that he should have scored 14 points rather than the eight awarded by the tribunal. Social Security Scotland argued that the Upper Tribunal did not have jurisdiction to consider those points as they had not been the subject of a grant of permission to appeal either by the First-tier or the Upper Tribunal.

After an extensive review of authority, Lady Carmichael agreed, settling the question by concentrating on the specific statutory requirements for the Upper Tribunal for Scotland. Under section 46(3) of the Tribunals (Scotland) Act 2014, an appeal to the Upper Tribunal requires the permission of the Firsttier Tribunal, and only if that is refused can permission be granted by the Upper Tribunal. Construing section 46, Lady Carmichael held: ‘The appellant in this case seeks to challenge the approach of the FTS to daily living activities 5, 7 and 9 in response to an appeal directed at the FTS’s treatment of mobility Activity 1. He requires permission to do so. He does not have that permission. It follows that I have no jurisdiction to adjudicate on his challenges to the treatment of daily living activities 5, 7 and 9’ (paragraph 38).

Further, ‘In the context of a claim for ADP, if the respondent seeks to do anything other than preserve the decision of the FTS in the terms in which it is made, then the respondent requires to seek permission to appeal. Any more involved analysis as to outcome and benefit is likely to be unworkable’ (paragraph 45).

Comment from CPAG

As the judge also observes that there may be no reason for a claimant to appeal against a tribunal’s decision unless he finds that Social Security Scotland has been given permission to appeal, that may result in late applications for permission to appeal where Social Security Scotland is given permission to appeal.

Summary

This decision of the Court of Appeal overturns the decision of the Northern Ireland Chief Commissioner in AS v HMRC (CB) [2013] NICom 15 (25 March 2013). The effect is that the right to reside test for child benefit is considered lawful.

The claimant was an AS national. At the time of her claim for child benefit she was not an 'authorised worker' and her claim was refused on the basis that she did not have the right to reside. The Chief Commissioner held that she was entitled as the right to reside test as it applied to child benefit was unlawful. That was because he considered it directly discriminatory on grounds of nationality, or if it was instead indirectly discriminatory, it was only justified if the claimant was held to satisfy the test having achieved a sufficient degree of 'economic or social integration' - ie, as an alternative to the standard right to reside categories.

The Court of Appeal held that both of the Chief Commissioner's findings were erroneous. There was no direct discrimination on grounds of nationality, the right to reside test was in fact part of a 'cumulative' approach in deciding whether the claimant was for child benefit purposes 'ordinarily resident' in the UK, and taking the test as a whole it was clear that may be complied with by both UK nationals and non-UK nationals (and so not directly discriminatory). The 'ordinary residence' test was in that sense not different in principle to the tests considered by the European Court of Justice in Bressol v Gouvernment de la Communatute Francaise [2010] 3 CMLR 559 (regarding access to free education in Belgium) and the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] 1 WLR 783 (regarding the right to reside test as part of the habitual residence test for pension credit). In the present case, the Court considered that it must follow the 'clear decisions' of both courts and hold that the right to reside test must be considered as part of a cumulative ordinary residence test, and therefore not direct discrimination on grounds of nationality (paragraphs 23-27).

Regarding justification for indirect discrimination, the Chief Commissioner had focused on what he considered to be a 'concession' made on behalf of the Secretary of State in Patmalniece, to the effect that a sufficient degree of social and economic integration could in itself be a source of a right to reside, rather than a right to reside being an indication that the claimant had indeed achieved such integration. But the court considered that was based on a misunderstanding -of the relevant passage in Patmalniece. It was the right to reside test which indicated that a sufficient degree of integration had been achieved; the question was not whether an individual should be able to establish 'some undefined degree of economic and/or social integration as an exception to having to comply with the 'right to reside' requirement ... '. Therefore, the correct position, established in Patmalniece, was that the right to reside test was justified as a measure of determining sufficient integration (paragraphs 28-30).

Summary

The claimants were all parents with shared care of their children, having separated from their partners. The children alternated between living with each parent, on a roughly equal basis. The claimants were subject to the 'bedroom tax' reduction in their eligible rent. All were in receipt of discretionary housing payments (DHPs) although it was not clear they would continue in all cases. The claimants argued that the application of the bedroom tax to them was unlawful as: (1) it breached Article 8 (right to family life) of the European Convention on Human Rights (ECHR); (2) unlawful discrimination against separated parents under Article 14 ECHR read with Article 8; (3) irrationality, under public law principles.

In the High Court, Mr Justice Males dismissed the claimant's claim for judicial review. The 'short answer' to the claimants' arguments was that the payment of DHPs to the claimants 'completely compensated' for their reduced housing benefit, so that 'none of the claimants has suffered any interference with their family life capable of amounting to a breach of article 8' (paragraph 30).

But given that it was possible that payment of DHPs might not continue to the claimants, the judge went on to consider the claimants' argument in the context of DHPs not being paid. He was clear that the withdrawal of DHPs in these cases would mean that the claimants could not continue to live in their current homes, and that their children would no longer be able to live with them on a regular basis (paragraph 36). Also, Article 8 was engaged (paragraph 39). However, there was no unlawful interference with the claimant's right to family life. The judge referred to the decision of the Court of Appeal (regarding the benefit cap, but involving a similar argument regarding Article 8) in R (SG and others) (previously JS and others) v Secretary of State for Work and Pensions [2014] EWCA civ 156. There it was held that in was only in truly exceptional cases that Article 8 would impose a duty to provide housing and benefits. Parliament had been alive to the impact of the bedroom tax on separated parents with shared care, and the judge concluded that even if the bedroom tax resulted in the parents having to move to a smaller property where their children could not live with them, that would not in itself be a breach of Article 8 (paragraphs 43-51).

Regarding the other arguments, although separated parents with shared care probably did constitute an 'other status' with the meaning of Article 14, it was common ground that any discrimination was justified, for the same reasons as why Article 8 was not breached (paragraphs 60-61). Regarding irrationality, it was accepted that if the claims under ECHR failed, the argument for irrationality was unlikely to succeed, and the judge confirmed that the policy objectives and regulations regarding the benefit cap were not irrational as that term is used in public law (paragraph 62).

Summary

The claimant was aged over 80 when he claimed a Category D retirement pension in 2009. On the facts of his case, in order to satisfy the past presence test at regulation 10(a) of the Social Security (Widow’s Benefit and Retirement Pensions) Regulations 1979, requiring at least 10 years’ residence in Great Britain out of the last 20, it was required that his residence in Gibraltar (from 2003) be taken into account. The Upper Tribunal in SSWP v JG (RP) [2013] UKUT 300 (AAC) had held that it could be, as although Gibraltar was not part of Great Britain, reciprocal arrangements had the effect that residence in Gibraltar counted as residence in Great Britain.

The Court of Appeal unanimously disagreed with that, and held that on the facts the claimant’s residence in Gibraltar did not otherwise fall to be taken into account as residence in Great Britain, with the result that he failed the past presence test at regulation 10(a). Giving the lead decision, Lord Justice McCombe held that the reciprocal agreement only provided that a person shall have the same rights and liabilities in social security as he would have if the UK and Gibraltar had been separate states; it did not deem a person resident in Gibraltar to be resident in the UK (paragraph 33). Regarding the claimant’s rights, Article 45 of EC Regulation 1408/71 (which was in force at the relevant time, now replaced by EC Regulation 883/04), had the effect here that periods of residence ‘completed under the legislation of any other Member State…as an employed or self-employed person’ must be taken into account. But on the facts of the present case, the claimant had completed no relevant period of residence in Gibraltar as an employed or self-employed person. He had made no contributions to Gibraltar’s contributory insurance scheme. Therefore, there was no basis for taking the residence in Gibraltar into account (paragraphs 31–35).

The Court also rejected the claimant’s argument that the past presence test must be disapplied as in breach of European law, and instead a test of whether he had a ‘genuine link’ to the UK applied instead – a test which he would pass. The claimant relied on the decision of the European Court of Justice in Stewart v Secretary of State (EUECJ), Case C-503/09 (21 July 2011). It was accepted (and not questioned by the Court) that the requirement at regulation 10(b) that the claimant is ordinarily resident in Great Britain on his 80th birthday or on the date of claim fell foul of the decision in Stewart, and a ‘genuine link’ test applied there instead (paragraph 28). But regarding the past presence test for a Category B pension at regulation 10(a), the Court held ‘it is only in cases where the residence provisions are not permissible that it becomes necessary to examine whether the alternative qualifying criterion (of “genuine link” to the Member State concerned) is satisfied’. In the present case, however, Article 45 of EC 1408/71 allowed periods of residence or insurance as an employed or self-employed person to be taken into account, and therefore the past presence test was permitted (paragraphs 28–30).

Summary

In this decision, the Supreme Court dismissed an appeal against the decision of the Court of Appeal (R (SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2014] EWCA Civ 156). The appeal was based on arguments that the benefit cap breaches discrimination law in the European Convention on Human Rights (ECHR). The result is that the benefit cap remains lawful. However, judges in the court also considered that the cap nevertheless fails to comply with the UN Convention on the Rights of the Child (UNCRC).

The argument made for the claimants was that the benefit cap unlawfully discriminated against them as women who were lone parents and victims of domestic violence. Specifically, as women, especially those with larger families, were more likely to be subject to the cap and yet also find it more difficult to move into work so as to escape the cap, it was argued that the cap was in breach of Article 14 of the ECHR (prohibition of discrimination), read together with Article 1 of Protocol 1 (right to possessions). It was also argued that in deciding whether there was unlawful discrimination here, it was required to take account of the position of the children of lone parents and, in particular, the requirement in Article 3(1) of the UNCRC to treat the ‘best interests of the child’ as a ‘primary consideration’.

The Court held by a 3:2 majority (Lords Reed, Hughes and Carnwath in the majority) that the cap did not unlawfully discriminate against women. Giving the lead judgement, Lord Reed said that the discrimination here was indirect discrimination, and (consistent with previous authority) that the test for deciding whether that was unlawful was whether it was ‘manifestly without reasonable foundation’ (paragraph 11). Lord Reed said that the government’s stated policy aims in introducing the cap were legitimate, and giving due weight to the assessment of the relevant law in parliament, was not persuaded that the rules breached Article 14, despite the fact that they did affect a greater number of women than men (paragraph 96). Regarding Article 3(1) of the UNCRC, as an unincorporated international treaty, the UNCRC was not part of UK law.

Although it was true that the UNCRC had in European caselaw been taken into account in considering human rights arguments, that did not apply to the present context which was about alleged discrimination between men and women, and the judge considered that separable from the question of children’s rights (paragraphs 78–89).

In dissenting judgements, Lady Hale and Lord Kerr both considered that the cap was unlawfully in breach of Article 14 read with Article 1 of Protocol 1 – ie, as unlawful discrimination against women. Both considered that the international obligations about the rights of the child under the UNCRC should inform the judgement of whether indirect discrimination was justified. Lady Hale said that she agreed with both Lord Carnwath and Lord Kerr in considering that the best interests of children were not treated as a primary consideration in the benefit cap rules, and said ‘it cannot possibly be in the best interests of children affected by the cap to deprive them of the means to deprive them of the means to provide them with adequate food, clothing, warmth and housing, the basic necessities of life’ (paragraphs 225–56). However, although Lord Carnwath was of the view that ‘the Secretary of State has failed to show how the regulations are compatible with his obligation to treat the best interests of children as a primary consideration’ (paragraph 128), he also agreed ‘with considerable reluctance’ that, as the discrimination in this case was against the mother of the child rather than the child, the UNCRC did not have a role to play in deciding whether that was unlawful (paragraph 129). His judgement was, therefore, to dismiss the appeal. However, he expressed the hope that the government would consider the UNCRC in its review of the cap (paragraph 133).

See also the article in our Welfare Rights Bulletin 245 p5.