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Summary

In this case, the Court of Appeal upheld a decision by the High Court that the two-child limit was not unlawful. The claimants were lone parents with more than two children and both were affected by the two-child limit as applied to their child tax credit. They argued that the rule was incompatible with their rights under the European Convention on Human Rights (‘the Convention’). Specifically, they argued that the two-child limit was in breach of their rights under Article 8 (right to respect for private and family life) and Article 12 (right to marry and found a family) and/or was in breach of Article 14 (prohibition of discrimination).

The court unanimously dismissed the claimants’ appeals. In the lead decision, Lord Justice Legatt concluded that the two-child limit was not in breach of their Convention rights. Regarding Article 14, he concluded that although there was differential treatment of women (who were much more likely to be affected than men) and families with more than two children, the aims of the measure were undoubtedly legitimate and given the wide margin for discretion allowed to states, it could not be said that the rule was manifestly without reasonable foundation. It was therefore not unlawful (paragraph 160).

Regarding Articles 8 and 12, the ‘root difficulty’ for the claimants was that the Convention was ‘not aimed at securing social and economic aims’ but instead provided rights of a ‘predominantly civil and political’ nature (paragraph 29). There was a consistent body of authority that the Convention did not impose an obligation to provide financial support for family life, and there was nothing in the two-child limit which interfered with the claimants’ right to choose the number of children they had (paragraphs 31– 38). Regarding Article 14 and possible discrimination, there was differential treatment in that the rule disadvantages women in comparison with men, and that it treats families with more than two children less favourably than families with only one or two children. But such differential treatment is capable of justification. Authority had established that the test is whether the measure is ‘manifestly without reasonable foundation’ (paragraphs 85 – 88).

The various aims of the two-child limit were legitimate (paragraph 122). Given in particular the aim of reducing benefit expenditure, that any reduction in child-related benefit would affect more women than men and that parliament had been aware of the impact of the change, the indirectly discriminatory effect on women was justified (paragraphs 125 –132). Regarding the differential treatment of claimants with families of more than two children compared with those with fewer children, the aims of reducing benefit expenditure and of incentivising people to support themselves did not provide a complete justification (paragraphs 134 –135). Here, therefore, the burden of justification rested on the general aim of ensuring that the benefit system is fair to taxpayers, and the specific aim of placing those getting benefits in a position where they face the same financial choices regarding having children as those not getting benefits. This touched on ‘political controversy’ and, given the wide area of judgement afforded under the Convention, the rule was not manifestly disproportionate here (paragraphs 136 –145). Looking at the rule solely in terms of the interests of the children affected rather than the adults (Article 14 could apply to the children when read with Article 8 – paragraph 148), justifications of fairness to the taxpayer and parental choice could not provide complete justification. But it was ‘a matter of intense political controversy’ as to where the balance lay, and a court was ‘not a suitable institution for deciding between these competing views’. A court could therefore not properly conclude that the differential treatment of the children was manifestly disproportionate to the legitimate aims pursued (paragraphs 156 –158).

Note

CPAG represented the claimants and at time of writing was looking to seek permission to appeal to the Supreme Court.

Decision in brief

Claimant argued that the relevant interview had been cancelled – but tribunal allowed his appeal on basis that Secretary of State had not provided evidence (as directed by tribunal) that claimant had at point of referral to the Work Programme been given sufficient information to allow him to make ‘informed and meaningful’ representations about his ability to take part – tribunal erred in not explaining why in this case the failure to satisfy this ‘prior information requirement’ was material – claimant had simply argued the appointment had been cancelled – on the facts that argument did not succeed.

Decision in brief

Claimant argued that she had not failed to attend a Work Programme appointment and so should not have been sanctioned in August 2013 – but tribunal allowed her appeal on basis that the WPO5 document recording the claimant’s initial referral to the Work Programme was not in the appeal papers and so it was not satisfied the claimant had properly been referred to the scheme – tribunal erred in regarding that as a matter raised by the appeal and deciding against the Secretary of State on a matter not raised by the appeal, and also in consequently failing to deal with the claimant’s argument about non-attendance, which on the facts did not succeed.

Decision in brief

Claimant entitled to income support (IS) on basis of disability before going into prison in March 2016, claiming universal credit on his release in September 2017 – three month qualifying period at regulation 28 of the Universal Credit Regulations 2013 correctly applied (so element not included until December 2017) as claimant’s entitlement to IS was extinguished when went into prison (and did not, as tribunal wrongly reasoned, persist as underlying entitlement) – therefore transitional rule at regulation 22 of the Universal Credit Transitional Provisions Regulations 2014 did not apply.

Decision in brief

Before 4 July 2019 amendments, transitional rules had an unintended lacuna in that they failed to provide an exemption in transfer cases subject to revision or supersession from the primary rule in s83 Welfare Reform Act 2012 that a claimant over the age of 65 is not entitled to any award of PIP - Lacuna filled by amendment from 4 July 2019 – Secretary of State applied extra-statutory payments to remedy lacuna before that date

Decision in brief

Court of Appeal in Secretary of State for the Home Department v Ojo [2015] EWCA Civ 1301 held that acquisition of a permanent right to reside depends on continuous residence in a qualifying status – contrary finding in OB v SSWP (ESA) [2017] UKUT 255 (AAC) should not be followed – Ojo was not cited to the judge in OB, which is consequently to be regarded as decided per incuriam – ie, wrongly decided as made in ignorance of binding authority).

Decision in brief

Tribunal should only proceed using an unofficial interpreter (such as a family member or friend) with considerable caution – may be rare occasions when proceeding with an unofficial interpreter would be appropriate (ZO v SSWP (IB) [2010] UKUT 143 (AAC) approved).

Summary

This decision of the Supreme Court is about the ability of a tribunal (or public authority or court) to correct a decision that is held to be in violation of the claimant’s human rights. Reversing the effect of a decision of the Court of Appeal in a separate but closely related case, the court held that (subject to an exception regarding primary legislation) a public authority, court or tribunal must not act in a way that is incompatible with the claimant’s human rights, and so must remedy the breach of those rights.

The claimant lived with his severely disabled partner in a two-bedroom rented social housing property. Because of her disability he was unable to share the bedroom. However, in 2013 his local authority applied the ‘bedroom tax’ in respect of the allegedly spare second bedroom, as then provided for in regulation B13 of the Housing Benefit Regulations 2006. The First-tier Tribunal found that was to unlawfully discriminate against him as a member of a couple with a disability (and so breach his human rights), and disapplied the bedroom tax. The Secretary of State’s further appeal to the Upper Tribunal was allowed, as by then the Court of Appeal had held that tribunals were not able to remedy human rights act breaches (Secretary of State for Work and Pensions v Carmichael and another [2018] EWCA Civ 548). The claimant’s further appeal was then ‘leapfrogged’ to the Supreme Court, where it became the subject of the present decision.

The court unanimously held that the decision maker and tribunals were in fact required, under section 6(1) of the Human Rights Act 1998 (‘HRA’) to remedy the breach of the claimant’s human rights, so as to disapply the bedroom tax. Giving the lead decision, Lady Hale said: ‘there is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where that is necessary to comply with the HRA’ (paragraph 27). The only exception was where the incompatibility was something required by primary legislation (ie, an Act of Parliament, not as here, secondary or ‘subordinate’ legislation in the form of a housing benefit regulation that was not implementing something required by an Act). If there was a bar on remedying breaches imposed solely by secondary legislation, ‘the HRA would have said so’ (paragraph 29).

Summary

This decision of the High Court is regarding a claim for compensation for financial loss by a claimant (SXC) who was one of the claimants in the decision TP, AR and SXC v Secretary of State for Work and Pensions [2019] EWHC 1116 (Admin) (the ‘liability decision’). In that decision, it was held that rules then in draft form unlawfully discriminated against the claimants (via a breach of the European Convention on Human Rights – ‘the Convention’.) That was because the Secretary of State had not given a sufficient explanation why draft rules, in providing for transitional SDP amounts of UC for certain severely disabled claimants who had transferred to UC, treated them differently from those who would receive full ‘transitional protection’ at the point they are subject to the managed migration process. The claimant now sought financial compensation for that discrimination.

Mr Justice Swift (who had also made the liability decision) rejected the claim, as an award of compensation was not necessary to afford just satisfaction in this case (in essence, the judge considered that the mere requirement on the Secretary of State to think again was sufficient remedy). He did not consider whether the finalised version of the rules providing for transitional SDP amounts (the Universal Credit (Managed Migration Pilot and Miscellaneous Amendment) Regulations 2019, No.1152 – the ‘New Regulations’) also unlawfully discriminated against the claimant. Those regulations differ from the draft rules in that they provide for increased amounts, but still left the claimant with a shortfall of £63.48 per month compared with her previous benefit entitlement. However, the judge did comment: 

‘…it was no part of my conclusion in the liability judgment that the only lawful outcome must be to treat the group including SXC the same way’ as those who would receive full transitional protection. The judge also said: ‘…since it was no part of the conclusion in the liability judgment that parity was required to meet what is required to meet Convention rights, there is no reason why, for the purposes of this judgment, I need or should assume that the provision now made for transitional payment is unlawful. The legality of the New Regulations is not an issue in these proceedings. On the assumption that the new provisions for transitional payment are lawful, and given that payments under the new regulations are backdated to the date each relevant benefits claimant migrated to universal credit, there is no room for a conclusion that SXC has suffered any financial loss as a result of the discrimination she suffered’ (paragraph 16).

Comment from CPAG

As the judge made clear, this case was not about the legality of the finalised rules regarding the transitional SDP amount. That may yet be an issue in a later case. However, the judge was at pains to make clear his view that his previous decision on the draft rules ( ie, in TP, AR and SXC) is not authority that the finalised rules will necessarily be vulnerable to challenge merely because they do not provide the same protection as the full transitional protection afforded to those who undergo managed migration to UC.

Summary

The claimant was a European national, living in Northern Ireland. She had a right to reside under national law, by virtue of having pre-settled status under the European Union (EU) Settlement Scheme. However she had no right to reside derived from European law – ie, under the ‘Citizenship Directive’ 2004/38/EC. She and her children were without income. On 17 June 2020, she was refused universal credit (UC) as, due to amendments made by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations (Northern Ireland) 2019, No.89 (the ‘amendment regulations’), right to reside by virtue of pre-settled status was not sufficient for entitlement to benefit. The claimant challenged that, arguing that the amendment regulations discriminated against her on the basis of her nationality as a European national by comparison to British nationals whose rights under national law were sufficient. Before the end of the ‘transition period’ on 31 December 2020 that followed the departure of the UK from the EU, the First-tier Tribunal referred the case to the Court of Justice of the European Union (CJEU).

The CJEU held that discrimination on the basis of nationality did not arise on this case. That was because the relevant anti-discrimination provision at issue was Article 24 of Directive 2004/38/EC and not (as contended for by the claimant) Article 18 of the Treaty on the Functioning of the European Union. Article 18 was only engaged when there is no specific anti-discrimination rule in the area concerned, and here there was, as Article 24 applied where an individual had moved to and resided in a member state of which s/he was not a national.

As the claimant had no right to reside under the Directive, she could not rely on the anti-discrimination provision at Article 24 of the Directive. To accept otherwise would run counter to the objective of ensuring economically inactive migrants did not become a burden on the social assistance system of the host member state (previous authority from the court to this effect in Dano, Case C 333/13, 11 November 2014, was cited).

However, that was not the end of the matter. It remained that the claimant, as an EU citizen, who had moved to a member state, had rights under European law. The authorities were obliged to comply with her rights under the Charter of Fundamental Rights of the European Union. In particular, under Article 1 of the Charter such a person who had a right to reside under national law and was in a ‘vulnerable’ situation had a right to live in ‘dignified conditions’ (paragraph 89). In the present case, the claimant was a single person with two children, without resources, who had fled a relationship due to domestic violence. In such a situation, the claimant could be refused social assistance only after ascertaining that her rights under the Charter would not be violated. The court concluded: 

‘provided that a Union citizen resides legally, on the basis of national law, in the territory of a member state other than that of which he or she is a national, the national authorities empowered to grant social assistance are required to check that a refusal to grant such benefits based on that legislation does not expose that citizen, and the children for which he or she is responsible, to an actual and current risk of violation of their fundamental rights, as enshrined in Articles 1, 7 and 24 of the Charter. Where that citizen does not have any resources to provide for his or her own needs and those of his or her children and is isolated, those authorities must ensure that, in the event of a refusal to grant social assistance, that citizen may nevertheless live with his or her children in dignified conditions…’ (paragraph 93).

Comment from CPAG

Arguably, the court decision means that where rules do not provide for such a consideration of the claimant’s circumstances, refusal of benefit is unlawful under European law. However, the lawfulness of the Great Britain equivalent of the Northern Ireland amendment regulations now fall to be considered by the Supreme Court in Fratila and another (AP) v Secretary of State for Work and Pensions.