The Upper Tribunal has allowed the appeals of two claimants who challenged the rule excluding those who had another child in their family aged under 16 from entitlement to the Sure Start Maternity Grant (SSMG) (read judgment). The rationale for the rule which was challenged was that it focussed resources on families unlikely to have kept baby items from another older child. The claimants argued they were in groups who were unlikely to have baby items (SK because she fled to the UK with her other child as a refugee bringing a minimum of items and LL because her older child only joined her family when he was already 3 1/2).
SK, came to the UK from Iraq in 2015 with her son (who was then three and a half years old) and claimed asylum. In January 2017 SK was granted leave to remain as a refugee and made a successful claim for means-tested benefits. In July 2017 SK made a claim for a the SSMG while pregnant with her daughter, who was born in the UK in August 2017. SK’s claim was refused on the basis that she was not eligible for the Grant under Regulations 5 and 5A of the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 because there was an existing member of her family under the age of 16 for whom she was responsible (i.e. her son, who had been born in Iraq), and her situation didn’t fall within the exceptions to the first child only rule. SK appealed to the First-tier Tribunal which dismissed her appeal and she then appealed further to the Upper Tribunal.
SK's case was heard together with that of another claimant represented by CPAG, LL. LL has been the carer of her nephew under a Residence Order since he was 18 months old. LL became pregnant with her first child and made a claim for SSMG. Her claim was refused on the basis that, because she had an existing member of her family under the age of 16 for whom she was responsible (i.e. her nephew under the terms of a Residence Order), and her situation didn’t fall within the exceptions to the first child only rule that applied at that time, she was not eligible for the SSMG under Regulations 5 and 5A of the 2005 Regulations (note the regulations were amended to allow people in LL's situation to claim a SSMG from 06 April 2018 but that did not benefit LL who had made her claim before the amendment).
The Upper Tribunal allowed both appeals.
It held that the SSMG was within the ambit of Article 8 of the European Convention on Human Rights and therefore a person could potentially claim to have been discriminated against it on the basis of their status contrary to Article 14.
SK's status was that she was a refugee who had a child before fleeing to the UK. LL's status was that she had taken on care of a child aged over one before having her own child.
In each case, people with the statuses of the claimants had been treated the same as other people having a second child despite the fact that there situation was relevantly different (because in each case the people in these groups were highly unlikely to already have baby items).
The Secretary of State for Work and Pensions attempted justification for this difference in treatment was manifestly without reasonable foundation. What had to be justified was the failure to treat people in these groups differently and this had not been shown to have a reasonable foundation. Specifically:
1. Granting an SSMG to people in these groups would not undermine the policy objective of reducing expenditure or targeting benefit at those who did not have baby items (with regard to refugees with pre-flight children who had a second child - evidence was accepted they are a small group and that they were most unlikely to have baby items on arrival or a chance to get them from their home country).
2. The mitigations put forward by the State (that those without baby items could get a Budgeting Loan or Budgeting Advance) were not accepted because there was evidence they had not been an effective mitigant to the tightening of the rules and because discrimination in terms of accessing a grant could not be mitigated by access to a less good loan.
3. The existence of maternity support for asylum seekers was irrelevant as refugees could not access it.
4. The need for a "bright line" to distinguish those entitled from those not entitled could not operate disproportionately at the expense of fairness.
5. The fact that there might be other groups who could also argue they were discriminated against is not relevant- exceptions would only need to be made for those not intended to be caught by the policy in any event.
6. There was no evidence the Government had considered the best interests of the new babies of refugee mothers who had pre-flight children.
In conclusion on justification the Upper Tribunal held:
"The problem with the purported justifications for the measures provided by the Respondent is that when applied to refugees with pre-flight children the measures achieve the precise opposite of the stated aim of the provisions. Excluding such claimants from eligibility does not further the legitimate aim of targeting the SSMG at the families who need it most. Rather, it denies claimants who are likely to be among those the most in need of such support. It is therefore not merely a disproportionate way of achieving the stated objective, but an inappropriate measure which defeats the stated objective."
The Upper Tribunal remade each of the decisions awarding the Grant to each claimant (judgment)
[(1) the Secretary of State in fact conceded in LL's case and (2) the Upper Tribunal dismissed SK's alternative argument that she had been discriminated contrary to EU law]
Note: the implication of this decision is that a refugee having their first child in the UK, who has another child in their family born outside the UK (pre flight to the UK) is entitled to a SSMG and should make a claim.
Note: a mandatory reconsideration template has been prepared for similar cases.
[29/10/2020 - the DWP has confirmed that they are currently drawing up guidance regarding the case]