ALBA Conference 2019: A Review (Part 2)

15 October 2019 by

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

Credit: The Guardian

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.


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.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: