ALBA Conference 2019: A Review (Part 2)
15 October 2019
This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.
Article 14 ECHR discrimination challenges to social welfare measures: the second benefit cap case in the Supreme Court: Raj Desai
Introduction: The ‘Benefit Cap’
Mr Desai examined Article 14 ECHR through the prism of two ‘benefit cap’ cases: R (on the application of DS and others) (Appellants) v Secretary of State for Work and Pensions (Respondent) [2019] UKSC 21 (“DA & DS”) and R(SG and ors) v Secretary of State for Work and Pensions [2015] UKSC 16 (“SG”).
Both were decisions of the Supreme Court concerning the benefit cap. This provides that a household’s total entitlement to welfare benefits cannot exceed an annual limit. The cap is disapplied if a certain amount of relevant work is completed.
In common with many Article 14 ECHR claims, both cases raise complex issues about the proper constitutional role of the courts. SG (the first benefit cap case)
Here, the Supreme Court by a narrow margin (3:2) rejected a claim that three single mothers and their children were being discriminated against.
At first, a majority (Lord Carnwath, Lady Hale and Lord Kerr) would have allowed the appeal. Lord Carnwath initially regarded a breach of Article 3 of the United Nations Convention on the Rights of the Child as a decisive factor in the proportionality analysis (at [109]).
In a highly unusual move, the court then heard post-hearing submissions on whether a breach of Article 3 UNCRC was relevant. Lord Carnwath then altered his view, concluding that there was no link between Article 3 UNCHRC and Article 14 ECHR [130-131]. The appeal was, therefore, dismissed.
DA & DS (the second benefit cap case)
Parliament subsequently passed the Welfare Reform and Work Act 2016, which lowered the benefit cap further. The applicants in DA challenged this. Their core claim was that they, as members of a household with a lone parent and young children, should be treated differently from other groups. This was because it is more difficult for lone parents to obtain suitable work.
A majority of the Supreme Court (Lords Wilson, Carnwath, Hodge and Hughes) rejected the appeal and held that the new benefit cap was lawful. Lady Hale and Lord Kerr dissented. Lord Wilson gave the lead judgment.
The most significant part of the judgment was the test for justification. As Lord Wilson noted:
This court has been proceeding down two different paths in its search for the proper test by which to assess the justification under article 14 for an economic measure introduced by the democratically empowered arms of the state. In retrospect this duality has been unhelpful.
Lord Wilson resolved this uncertainty with a blunt statement:
the sole question is whether it is manifestly without reasonable foundation. Let there be no future doubt about it.
Analysis: ‘manifestly without reasonable foundation’ vs proportionality
Mr Desai considered the relationship between the MWRF test and the domestic proportionality approach.
As readers will be aware, courts take a four-step approach to the issue of proportionality in this context: (i) whether the objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether a fair balance has been struck between the rights of the individual and the interests of the community (e.g. Bank Mellat v Her Majesty’s Treasury (No.2) [2013] UKSC 39).
Historically, the four-stage proportionality approach has been applied alongside the MWRF test (e.g. In re Brewster [2017] 1 WLR 516, at [66]). However, in other cases the Supreme Court had only applied with MWFR test (e.g. Carmichael [2016] 1 WLR 4550). Things became even more complicated by Lord Wilson’s ruling in A v SoS for Health [2017] 1 WLR 2492, in which he held at [33] that the MWRF test did not apply to the fourth stage in the proportionality assessment
As a result of DA, it is clear that the MWRF test applies to all parts of the proportionality question (though there may be limited exceptions, such as in the context of deprivation of property). What is less clear, however, is whether the MWRF test has entirely replaced the issue of proportionality. As Mr Desai noted, this is something which will need to be worked out in the courts.
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Mr Desai’s full paper is available here.
This post merely reflects the author’s personal interpretation of what was said at the conference. The opinions expressed do not necessarily reflect the views of ALBA, conference attendees, or the UKHRB.
A number of papers from the conference are available here.
