R (on the application of SG and Others (previously JS and Others)) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Hughes,Lord Kerr,Lord Reed,Lord Clarke,Lady Hale,Lord Neuberger,Lord Toulson |
| Judgment Date | 20 April 2016 |
| Neutral Citation | [2015] UKSC 16 |
| Date | 20 April 2016 |
| Court | Supreme Court |
[2015] UKSC 16
Lady Hale, Deputy President
Lord Kerr
Lord Reed
Lord Carnwath
Lord Hughes
Appellants
Ian Wise QC Caoilfhionn Gallagher Samuel Jacobs
(Instructed by Hopkin Murray Beskine Solicitors)
Respondent
Clive Sheldon QC Karen Steyn QC Simon Pritchard
(Instructed by Treasury Solicitor)
Intervener (Child Poverty Action Group)
Richard Drabble QC Tim Buley Zoe Leventhal
(Instructed by Herbert Smith Freehills LLP)
Intervener (Shelter Children's Legal Service)
Jonathan Manning Clare Cullen
(Instructed by Freshfields Bruckhaus Deringer LLP)
Heard on 29 and 30 April 2014
These appeals raise the question whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings of working households. The legislation is challenged under the Human Rights Act 1998 primarily on the basis that it discriminates unjustifiably between men and women, contrary to article 14 of the European Convention on Human Rights ("the ECHR") read with article 1 of Protocol No 1 to the ECHR ("A1P1").
The discrimination arises indirectly. The cap affects all non-working households which would otherwise receive benefits in excess of the cap. Those are predominantly households with several children, living in high cost areas of housing. The heads of such households are entitled, in the absence of the cap, to relatively high amounts of child benefit, which is payable in direct proportion to the number of children. They are also entitled, in the absence of the cap, to relatively high amounts of housing benefit, which reflects the rental cost of the accommodation in which the household lives, and tends therefore to reflect to some extent the size of the household and, more particularly, the level of rental values in the area. In practice, this means that non-working households with several children, living in London, are most likely to be affected. The majority of non-working households with children are single parent households, and the vast majority of single parents are women (92% in 2011). A statistically higher number of women than men are therefore affected by the cap. The great majority of single parent non-working households are however unaffected by the cap.
It is argued that the cap also affects victims of domestic violence, because they may be temporarily housed in accommodation which is relatively expensive (the rent for such accommodation having tended to reflect the amount of housing benefit payable), and in that event are entitled, in the absence of the cap, to relatively high amounts of housing benefit. That will also be the position if they are entitled to housing benefit in respect of both the temporary accommodation and also other accommodation to which they hope to return. Victims of domestic violence are also predominantly women.
The justification put forward for the cap is one of economic and social policy, namely that it is necessary (1) to set a reasonable limit to the extent to which the state will support non-working households from public funds, (2) to provide the members of such households of working age with a greater incentive to work, and (3) to achieve savings in public expenditure at a time when such savings are necessary in the interests of the economic well-being of the country.
Article 14 provides:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
As is apparent from its terms, article 14 can only be considered in conjunction with one or more of the substantive rights or freedoms set forth in the Convention. In the present case, the relevant right is that set forth in A1P1:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
The appeal has been argued on the basis that the cap constitutes an interference with the peaceful enjoyment of possessions, within the meaning of A1P1.
The general approach followed by the European Court of Human Rights in the application of article 14 was explained by the Grand Chamber in Carson v United Kingdom (2010) 51 EHRR 369, para 61:
"In order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised."
A violation of article 14 therefore arises where there is:
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(1) a difference in treatment,
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(2) of persons in relevantly similar positions,
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(3) if it does not pursue a legitimate aim, or
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(4) if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
In practice, the analysis carried out by the European court usually elides the second element – the comparability of the situations – and focuses on the question whether differential treatment is justified. This reflects the fact that an assessment of whether situations are "relevantly" similar is generally linked to the aims of the measure in question (see, for example, Rasmussen v Denmark (1984) 7 EHRR 371, para 37).
In relation to the third element, the court has referred to the criteria laid down in the second paragraphs of articles 8 to 11 of the Convention as legitimate aims, where article 14 has been read in conjunction with those articles. In Sidabras v Lithuania (2004) 42 EHRR 104, for example, the court stated at para 55 that the difference in treatment "pursued the legitimate aims of the protection of national security, public order, the economic well-being of the country and the rights and freedoms of others". The court has also treated aims which are legitimate in the public interest in the context of A1P1, such as securing social justice and protecting the state's economic well-being, as legitimate aims when article 14 has been read in conjunction with that article, as for example in Hoogendijk v The Netherlands (2005) 40 EHRR SE 189 and Andrejeva v Latvia (2009) 51 EHRR 650.
National authorities enjoy a margin of appreciation in assessing whether and to what extent differences in treatment are justified. The European court has emphasised the width of the margin of appreciation in relation to general measures of economic or social strategy, stating in its Carson judgment at para 61:
"The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.
The scope of this margin will vary according to the circumstances, the subject matter and the background. A wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy.
Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the court will generally respect the legislature's policy choice unless it is 'manifestly without reasonable foundation'."
That approach was followed by this court in Humphreys v Revenue and Customs Commissioners [2012] UKSC 18; [2012] 1 WLR 1545, where Lady Hale stated at para 22 that the normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the "manifestly without reasonable foundation" test in the context of welfare benefits.
Article 14 is not confined to the differential treatment of similar cases: "discrimination may also arise where states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different" ( Pretty v United Kingdom (2002) 35 EHRR 1, para 87). An example is the case of Thlimmenos v Greece (2001) 31 EHRR 411, where this type of discrimination was first recognised.
The European court has also accepted that a difference in treatment may be inferred from the effects of a measure which is neutral on its face. In DH v Czech Republic (2007) 47 EHRR 59, the court stated at para 175:
"The court has established in its case law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. … The court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group."
In such a case, it will again be necessary to consider whether the difference in treatment has an objective and reasonable justification, in the light of the aim of the measure and its...
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