Communicated on 9 June 2020 Published on 29 June 2020

FIRST SECTION

Application no. 46692/19 D.A. and R.A . against the United Kingdom lodged on 29 August 2019

STATEMENT OF FACTS

1 . The applicants are D.A., a British national, who was born in 1992 and lives in Radlett and her son R.A. born in 2017. They are represented before the Court by Hopkin Murray Beskine , a law firm in London.

2 . From April 2013 a benefit cap applied where a household ’ s total entitlement to specified welfare benefits exceeded an annual limit (the “ benefit cap”). It capped the household ’ s entitlement at that limit. The cap did not apply to lone parents if the lone parent claiming benefit worked 16 hours per week (see paragraphs 15 - 18 below).

3 . Prior to initiating the domestic litigation (see paragraph 8 below), the applicant was pregnant and living with her four year old son in a refuge in North London. She had fled from a situation of serious domestic violence, which had led to her having to leave her home.

4 . At an unspecified time prior to the first instance judgment being given on 22 June 2017 she was given emergency accommodation for those who are homeless which cost £247 per week.

5 . She gave birth to the second applicant on 5 June 2017.

6 . She unsuccessfully sought private accommodation. She has been informed that once subjected to the benefit cap she will have £217 per week available for rent.

7 . The local council has refused to allow her to join its housing list since she did not meet its requirement of four years residence in the borough as she came from outside the area, having fled a situation of domestic violence.

8 . The applicant brought an application for judicial review along with three other claimants. On 22 June 2017 the Administrative Court allowed their application for judicial review and made a declaration stating that the 2006 Regulations imposing the benefit cap (see paragraph 15 below) were incompatible with their rights under Article 14 as lone parents with children under two years old.

9 . The government appealed that decision.

10 . On 15 March 2018 the Court of Appeal allowed the government ’ s appeal. Sir Patrick Elias gave the lead judgment and concluded:

“135. In this case the question is ultimately a narrow one. Are the circumstances of single parents with children under two sufficiently different from other lone parents as to require an exception to be made to the imposition of the benefit cap? Much of the material before the court has focused on the hardships suffered by households with young children. But those hardships are shared by other workless households, and indeed larger families will be likely to be affected more than smaller families, even if they have no children under the age of two. Evidence of hardship would be potentially relevant to a challenge to the imposition of the cap to lone families in general, but it is not now suggested that the cap is unlawful in its application to other lone parent households, only those with small children under the age of two. So the focus must be whether the particular difficulties which those parents face when seeking employment are sufficiently distinct to render it unreasonable not to make an exception for them. For reasons I have given, I do not accept that the problems are sufficiently proportionately disabling to these lone parents to make it unjust not to treat them differently. As for the children themselves, I do not accept that presenting them as claimants in their own right adds anything of substance to the discrimination claims brought by their parents. ... ”

11 . In his concurring opinion Sir Brian Leveson P added:

“183. In the light of the hurdle which must be mounted before interfering with the decision of the Secretary of State ( ‘ manifestly without reasonable foundation ’ ), with respect to the view expressed by McCombe LJ, I agree with Sir Patrick that the evidence before the judge did not justify that conclusion. In my judgment, it was open to the Secretary of State to take the view that difficulties faced by lone parents with children under two were not such as sufficiently to distinguish that cohort from lone parents with older children, thereby warranting exemption in their case (but not lone parents with older children) from the rule. On the contrary, the aims of the policy (whether or not an observer might agree with it) justified treating them in the same way. ”

12 . The applicants and other claimants appealed.

13 . On 15 May 2019 the Supreme Court gave its judgment in which it also examined another group of cases (referred to as the “DS cohort”) where it was alleged that the benefit cap unlawfully discriminated against all lone parents not just those with very young children. It dismissed all the claims. Lord Wilson gave the lead judgment. He identified the stated aims of the legislation:

“7. In the I[ mpact ] A[ ssessment ] the government stated that its introduction of the revised cap had three aims:

(a) to improve the fairness of the social security system and to increase public confidence in its fairness, particularly in relation to the government ’ s objective not to reward a non-working family with an income in the form of welfare benefits which exceeded that of an average working family;

(b) to make fiscal savings which would enable the government to redirect its limited resources for better deployment elsewhere; and

(c) to incentivise the parents or parent in a non-working family to obtain work on the basis in particular that an ethic of work within a family inculcated better outcomes for its children.

8. The I[ mpact ] A[ ssessment ] identified the incentivisation of work as the main aim. The ability of parents to escape the cap by undertaking work for not less than the specified number of hours is described by the government as a key exemption and is therefore central to the design of the scheme. ”

14 . He then went on to examine the claim of discrimination.

“ 39. ... In R (Stott) v Secretary of State for Justice [2018] UKSC 59, [2018] 3 WLR 1831, this court recently conducted a detailed examination of the meaning of “other status” in article 14. In the event all membe rs of the court other than Lord Carnwath confirmed that its meaning was broad; and they proceeded to hold that a prisoner subject to a particular type of sentence thereby had the status which under article 14 enabled him to allege that its effect had been to discriminate against him in the enjoyment of his rights under article 5 of the Convention. The present appellants assert statuses more obviously composed of personal characteristics than were those recognised in the cases of Mathieson and Stott ; and I have no doubt that all of them have the requisite status ...

...

44. Although the alternative formulation of the complaint of the DA appellants has arguable merit, I have no doubt that the natural way of analysing their complaint accords with their primary formulation of it: it is of discrimination of the type explained in the Thlimmenos case, namely that, by subjecting them to the revised cap, the government has treated the DA cohorts similarly to a specified group whose situation is relevantly different from theirs and thus that, subject to justification, it should have treated them differently from it.

...

46. The question then arises: what is the specified group which the government is said to have treated similarly to the DA and the DS cohorts?

...

47. Blessed is simplicity. The complaint made by the appellants is that their cohorts should not have been subjected to the revised cap. The natural corollary is ... that they are comparing their cohorts with all others subjected to the cap: so the natural comparator is [all others subjected to the (revised) benefit cap ] ...

...

51. There is clear prima facie evidence that ... the DA and the DS cohorts are in a relevantly different situation from those others who have been treated similarly to them by their common subjection to the revised cap. For it appears

(a) that, in the case of a lone parent of a child below school age, in particular of a child below the age of two, it is contrary to the interests both of herself, of her child and of the family as a whole that she should in effect be constrained to work also outside the home;

(b) that, by the conditions which it has attached to the receipt of income support, the government has itself decided that it is contrary to their interests;

(c) that, irrespective of whether it is contrary to their interests for her to be so constrained, the extra difficulty, beyond that faced by others subjected to the cap, which confronts such parents in finding not only suitable work but also suitable childcare is plain;

(d) that, in the case of a child aged under two, the absence of any free childcare further increases that difficulty;

(e) that the incidence of failure of those represented by the DA and the DS cohorts to escape the cap, namely in the case of the wider DS cohort 54%, and in the case of the narrower DA cohort 25%, of all those who suffer it, demonstrates its disproportionate impact upon them; and

(f) that, while the effect of the cap on all households who suffer it is to reduce their income below the poverty line, poverty has a disproportionate effect on the young children within these cohorts, stunting major aspects of their development in the long term as well as in the short term.

...

58. The appropriateness of an inquiry into whether the adverse effects of certain measures are manifestly without reasonable foundation is firmly rooted in the jurisprudence of the ECtHR. In James v United Kingdom (1986) 8 EHRR 123, in which it rejected the challenge to the legislation in England and Wales for leasehold enfranchisement, that court, in plenary session, held at para 46 that it should respect the judgment of the national legislature as to what was in the public interest unless it was manifestly without reasonable foundation. And in Stec v United Kingdom (2006) 43 EHRR 47, para 52, which it repeated word for word in Carson v United Kingdom (2010) 51 EHRR 13, para 61, the Grand Chamber, addressing complaints of discrimination arising out of the rules for entitlement to social security benefits, held that it should respect the national legislature ’ s determination of where the public interest lay when devising economic or social measures unless it was manifestly without reasonable foundation. It explained that this more benign approach to the establishment of justification for the adverse effects of a rule flowed from the margin of appreciation which was wide in this area of decision-making.

59. I now accept that the weight of authority in our court mandates inquiry into the justification of the adverse effects of rules for entitlement to welfare benefits by reference to whether they are manifestly without reasonable foundation.

...

88. I am ... driven to conclude that the government ’ s decision to treat the appellant cohorts similarly to all others subjected to the revised cap was not manifestly without reasonable foundation. In this regard, for reasons which I will not rehearse, the DA cohorts have a stronger case than have the DS cohorts; but, again by a narrow margin, even the stronger case fails. The appellants have not entered any substantial challenge to the government ’ s belief that there are better long-term outcomes for children who live in households in which an adult works. The belief may not represent the surest foundation for the similarity of treatment in relation to the cap; but it is a reasonable foundation, in particular when accompanied by provision for DHPs [Discretionary Housing Payments] which are intended on a bespoke basis to address, and which on the evidence are just about adequate in addressing, particular hardship which the similarity of treatment may cause.

...

89. There has been no Convention-related discrimination. The appeals must be dismissed. ”

15 . The ‘ benefit cap ’ was introduced by section 96(1) of the Welfare Reform Act 2012. Pursuant to it, the Housing Benefit Regulations 2006 (SI 2006/213) were amended so as to provide, in regulation 75A, that, if a household ’ s total entitlement to specified welfare benefits exceeded an annual limit, the household ’ s entitlement should be capped at that limit.

16 . The cap came into force on 15 April 2013. It introduced a limit of £26,000 per annum (£500 per week) on the total amount in state benefits that households (other than those comprising a sole adult) could receive. The cap did not apply to lone parents if the lone parent claiming benefit worked 16 hours per week.

17 . The cap was reduced by legislation which came into force on 7 November 2016 to £23,000 (£421.31 per week) for households in London and £20,000 (£384.62 per week) for households outside of London.

18 . Certain benefits are excluded from the application of the ‘ benefit cap ’ where they are provided to individuals who are prevented from working such as the Disability Living Allowance.

19 . There is also a statutory scheme for enabling Discretionary Housing Payments (“DHPs”) to be made to persons who are entitled to housing benefit and/or some other benefits. According to the Discretionary Financial Assistance Regulations (set out in Statutory Instrument 2001/1167), an payment may be made for such period as the authority considers appropriate in the particular circumstances of the case, and the authority is required to give reasons for its decision.

20 . Under the Childcare (Early Years Provision Free of Charge) (Extended Entitlement) Regulations 2016 there is provision of thirty hours free childcare per week for all three and four year olds. There is also free childcare provision for the most disadvantaged two years olds.

21 . Under the Education Act 1996 children must start full-time education in the academic year they attain the age of five.

22 . The Carer ’ s Allowance was not initially excluded from the benefit cap. However, the position changed following the decision of the High Court in R(Hurley and Others) v Secretary of State for Work and Pensions [2015] EWHC 3382 (Admin). The High Court found that including recipients of Carer ’ s Allowance with full-time caring responsibilities within the benefit cap, despite their inability to work, contravened Article 14. The judge commented:

“75. ...reconsideration will I hope be given to whether the present regulatory regime is appropriate having regard to the hardship it can and does produce and the lack of real benefit to the State in terms of the objectives of the benefit cap. As I have said, a bright line approach is available by simply exempting those single recipients of C[ arer ’ s ] A[ llowance ] who provide family care. ”

23 . In R (SG and Others) v SSWP [2015] UKSC 16 , the parties argued that the benefit cap contravened the United Nations Convention of the Rights of the Child (“UNCRC”) and discriminated against women as lone parents with children under two years old within the meaning of the European Convention. Lord Carnwath giving the lead judgment in the Supreme Court ’ s decision of 18 March 2015 found that the Secretary of State had failed to show how the regulations imposing the benefit cap were compatible with the obligation to treat the best interests of children as a primary consideration under the UNCRC ( § 128). However, he went on to reject the argument that the claimants had been discriminated against:

“129. The more difficult question, now that it has been put in issue, is how that finding in relation to the interests of children under UNCRC article 3(1) affects the resolution of issue (iii): that is the alleged justification for the admittedly discriminatory effects on women as lone parents. As Mr Sheldon submits, even if article 3(1) had a role to play in illuminating article 14, this could only be where the alleged indirect discrimination, or differential treatment, was in respect of children. In the present case, by contrast, the allegation is of discrimination, not against children, but against their mothers. The children, it is said, will be treated the same whether their lone parents are male or female. With considerable reluctance, on this issue agreeing with Lord Reed, I feel driven to the conclusion that he is right.

130. In all the article 14 cases to which we have been referred to in this context there was a direct link between the international treaty relied on and the particular discrimination alleged:-

( i ) In X v Austria (2013) 57 EHRR 14, where the complaint concerned discrimination by restrictions on adoption by single sex couples, the court referred not only to UNCRC article 3(1), but also to article 21 which applied the best interests principle specifically to adoption.

(ii) In Ponomaryov v Bulgaria (2014) 59 EHRR 20, where the complaint was of discrimination in respect of education, reference was made to UNCRC article 28 relating also to education.

(iii) In Burnip v Birmingham City Council [2013] PTSR 117, where the alleged discrimination related to the treatment of the disabled, reference was made to the CRPD, covering the same subject matter.

131. In each of these cases, it can plausibly be argued that the court was using the international materials to fill out, or reinforce, the content of a Convention article dealing with the same subject matter. They can be justified broadly as exercises in interpretation of "terms and notions" in the Convention, consis tently with the Demir principle.

132. There is no such connection in the present case. The discrimination with which we are concerned under article 14 is in relation to women and their "possessions". Those concepts require no relevant "illumination" by way of interpretation. It is true that the discrimination in this case is related to their responsibilities as lone parents, and to that extent, as Elias LJ accepted, the children are not "stran gers to the article 14/A1P1 arguments". But that is a comment on the facts, not on the interpretation of the convention rights. Indeed, as has been seen, it is the distinct interest of the children in the benefits as individuals that has reinforced my view of the breach under article 3(1). As Lord Reed says (para 89) the fact that children are statistically more likely to be living with a single mother than with a single father is unrelated to the question whether the childrens ’ interests have been treated as a primary consideration as required by UNCRC article 3(1).

133. We have been shown no precedent in the Strasbourg jurisprudence for the use of an international treaty in this indirect way. Mr Sheldon argues that there are "strong constitutional reasons" why the court should not go beyond Strasbourg on an issue of this kind. Whether or not that is so, we have heard no argument that we should do so. The appellants and their supporters have relied simply on the principles to be extracted from the existing case-law .”

COMPLAINTS

The applicants complain under Article 14 in conjunction with Article 1 Protocol 1 and Article 8 of the Convention that the failure to exclude lone parents with children under two years old from the application of the ‘ benefit cap ’ legislation discriminates against them, where they are in a significantly different position from those in a similar situation to whom the ‘ benefits cap ’ applies because their parental obligations prevent them from working; and that difference in treatment is not justified where the stated aims of imposing the benefit cap are not realised and there is no provision of free childcare for children under two years old.

QUESTIONS TO THE PARTIES

1. Taking into account Molla Sali v. Greece [GC], no. 20452/14, § 134; 19 December 2018; Andrejeva v. Latvia [GC], no. 55707/00, § 91, ECHR 2009 and Weller v. Hungary , no. 44399/05, § 35, 31 March 2009, have the applicants suffered discrimination in the enjoyment of their Convention rights due to their ‘ other status ’ , contrary to Article 14 of the Convention read in conjunction with Artic les 8 and Article 1 of Protocol No. 1 of the Convention?

If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?

2. In light of J.D. and A v. the United Kingdom , nos. 32949/17 and 34614/17, § 97, 24 October 2019, how should the Court approach the justification for the alleged difference in treatment where it relates to the applicants ’ ‘ other status ’ under Article 14?