ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE HONOURABLE MR JUSTICE COLLINS
Strand, London, WC2A 2LL
B e f o r e :
(SIR BRIAN LEVESON)
LORD JUSTICE McCOMBE
SIR PATRICK ELIAS
| THE QUEEN ON THE APPLICATION OF DA and OTHERS
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|THE SECRETARY OF STATE FOR WORK AND PENSIONS
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|EQUALITY AND HUMAN RIGHTS COMMISSION
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Mr Ian Wise QC, Ms Caoilfhionn Gallagher QC and Mr Michael Armitage (instructed by Hopkin Murray Beskine) for the Respondents
Ms Helen Mountfield QC and Mr Raj Desai (instructed by the Equality and Human Rights Commission) for the First Intervener
Mr Martin Westgate QC, Ms Shu Shin Lu and Mr Connor Johnston (instructed by Freshfields Bruckhaus Deringer LLP) for the Second Intervener
Hearing dates: 24, 25 October 2017
Crown Copyright ©
Sir Patrick Elias :
The relevant legislation
"… applying a benefit cap to welfare benefits means securing that, where a single person's or couple's total entitlement to welfare benefits in respect of the reference period exceeds the relevant amount, their entitlement to welfare benefits in respect of any period of the same duration as the reference period is reduced by an amount up to or equalling the excess."
The relevant Strasbourg law
"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."
"The court has so far considered that the right under Article 14 is violated when States treat differently persons in analogous situations, without providing an objective and reasonable justification. However, the court considered that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against….is also violated when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different."
"Notwithstanding these categorisations, the law of discrimination, domestic or European, rests on a single principle: the principle of consistency. Elias LJ at once stated the principle and exposed its different applications in AM (Somalia)  EWCA Civ 634: "like cases should be treated alike, and different cases treated differently. This is perhaps the most fundamental principle of justice" (paragraph 34). Even so, discrimination, including direct discrimination in Article 14 cases, may be justified; and the difference between direct and indirect discrimination (and Thlimmenos discrimination) retains a conceptual importance, because it will determine what it is that must be justified. Where the discrimination is direct – where a rule, practice or policy prescribes different treatment for persons in like situations – it is the rule itself that must be justified: the difference in treatment. Where the discrimination is indirect – where a single rule has disparate impact on one group as opposed to another – it is the disparate impact that has to be justified. With Thlimmenos discrimination, what must be justified is the failure to make a different rule for those adversely affected."
"It is not enough for the Government to explain why they brought in a benefit cap scheme. That can readily be understood. They have to explain why they brought in a scheme in a way which has disproportionately adverse effects on women."
"It is clear that, if the alleged discrimination falls within the scope of a Convention right, the Court of Human Rights is reluctant to conclude that nevertheless the applicant has no relevant status, with the result that the inquiry into discrimination cannot proceed."
An issue in this case is whether children under two, and the single parents caring for them, fall within the concept of "other status".
The relationship of the claims in this case to those in SG
How is article 14 engaged?
"Every national 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."
It is not disputed, as with the case of SG, that welfare benefits fall within the definition of possessions and that reducing benefits engages this provision so as to attract the application of article 14.
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
"… the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration;…..although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant."
The decision in SG
The judgment in the Supreme Court
"7. 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 13, 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."
8. A violation of article 14 therefore arises where there is:
(1) a difference in treatment, (2) of persons in relevantly similar positions, (3) if it does not pursue a legitimate aim, or (4) if there is not a reasonable relationship of proportionality?between the means employed and the aim sought to be realised.
9. 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 (1985) 7 EHRR 371, para 37)."
"The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament."
The potential significance of article 3 UNCRC
"So, as a yardstick of the proportionality of this general measure of economic or social strategy, the question is whether it was manifestly without reasonable foundation. But, if article 3(1) of UNCRC has to play its part in deciding whether the benefits cap was without reasonable foundation, it requires that first consideration be given to the best interests of the children directly affected by the decision."
"86. It is clear, therefore, that the UNCRC can be relevant to questions concerning the rights of children under the ECHR. There are also cases in which, although the court has not referred to the UNCRC, it has taken the best interests of children into account when considering whether an interference with their father's or mother's right to respect for their family life with the children was justified. An example is the case of Uner v Netherlands (2007) 45 EHRR 14, which concerned the deportation of an adult, resulting in his separation from his children. In circumstances of that kind, the proportionality of the interference with family life could not be assessed without consideration of the best interests of the children, a matter which was relevant to respect for his family life with them, as it was also to their right to respect for their family life with him. Indeed, they might themselves have been applicants, on the basis that their own article 8 rights were engaged.
87. The present context, on the other hand, is one of alleged discrimination between men and women in the enjoyment of the property rights guaranteed by A1P1. That is not a context in which the rights of the adults are inseparable from the best interests of their children. It is of course true that legislation limiting the total income which persons can receive from benefits, like any legislation affecting their income, may affect the resources available to them to provide for any children in their care, depending upon how they respond to the cap: something which will vary from one case to another. They may increase their income from other sources, for example by obtaining employment or by obtaining financial support for the upkeep of a child from an absent parent; or they may respond by reducing their expenditure, for example by moving to cheaper accommodation. Depending on how parents respond, the consequences of the cap for their children may vary greatly, and may be regarded as positive in some cases and as negative in others.
88. The questions (1) whether legislation of this nature should be regarded as "action concerning children", within the meaning of article 3(1) of the UNCRC, (2) whether that provision requires such legislation to be in the best interests of all the children affected by it, and (3) whether the Regulations fulfil that requirement, appear to me to be questions which, for reasons I shall explain, it is unnecessary for this court to decide. Even on the assumption, however, (1) that article 3(1) of the UNCRC applies to general legislation of this character, (2) that article 3(1) requires such legislation to be in the best interests of all the children indirectly affected by it, and (3) that the legislation in question is not in reality in the best interests of all the children indirectly affected by it, that does not appear to me to provide an answer to the question whether the legislation unjustifiably discriminates between men and women in relation to their enjoyment of the property rights guaranteed by A1P1.
89. It is true that the benefits which are taken into account when deciding whether the cap has been exceeded include benefits payable to parents by reason of their responsibility for the care of children. It is also true that the differential impact of the measure upon men and women arises from the fact that more women than men take on responsibility for the care of their children when they separate. It is argued that it is therefore unrealistic to distinguish between the rights of women under article 14 read with A1P1, and those of their children under the UNCRC. There is nevertheless a clear distinction. In cases where the cap results in a reduction in the resources available to parents to provide for children in their care, the impact of that reduction upon a child living with a single father is the same as the impact on a child living with a single mother in similar circumstances, or for that matter a child living with both parents. 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 children's rights under article 3(1) of the UNCRC have been violated. There is no factual or legal relationship between the fact that the cap affects more women than men, on the one hand, and the (assumed) failure of the legislation to give primacy to the best interests of children, on the other. The conclusion that the cap is incompatible with the UNCRC rights of the children affected therefore tells one nothing about whether the fact that it affects more women than men is unjustifiable under article 14 of the ECHR read with A1P1. The contrary view focuses on the question whether the impact of the legislation on children can be justified under article 3(1) of the UNCRC, rather than on the question whether the differential impact of the legislation on men and women can be justified under article 14 read with A1P1, and having concluded that the legislation violates article 3(1) of the UNCRC, mistakenly infers that the difference in the impact on men and women cannot therefore be justified."
Does the article 8 route to article 14 engage article 3 UNCRC?
"145. At its highest, this decision is another in which the UNCRC is referred to as relevant to the content of article 8 rights, and thus to the issue of justification for discrimination in relation to such rights. That is a very long way from saying that article 3(1) is relevant to justification upon any kind of discrimination issue, whether or not the decision is about the child's upbringing, and whether or not either the ECHR rights of the child or article 8 rights of his family are at stake. Such issues simply did not arise in X v Austria.
146. If the rights in question are the A1P1 property rights of women, and their associated derivative right not to be discriminated against in relation to those rights, it is an impermissible step further to say that there is any interpretation of those rights which article 3 UNCRC can inform. In the case of article 8, the children's interests are part of the substantive right of the parent which is protected, namely respect for her family life. In the case of A1P1 coupled with article 14, the children's interests may well be affected (as here), but they are not part of the woman's substantive right which is protected, namely the right to be free from discrimination in relation to her property. There is no question of interpreting that article 14 right by reference to the children's interests. The protected right to respect for family life under article 8 is entirely different from the protected right to property under A1P1. Nor can the article 8 rights of the child be said to be in need of interpretation when it is clear for the reasons given in all the judgments that they are not infringed. The necessary connection between the ECHR right under consideration and the international instrument is not present. That can be seen by considering the position of the appropriate comparator, namely a lone non-working father with the same children and household outgoings. The interests of the children would be exactly the same in his case, but he would have no article 14 claim to discrimination."
Was article 3 infringed?
"225. Both the Divisional Court and the Court of Appeal concluded that the Government had complied with its obligation to treat the best interests of the children concerned as a primary consideration (paras 75 and 49, respectively). They were, of course, correct to say that "the Government was keenly aware of the impact the benefits cap would be likely to have on children" (Court of Appeal, para 74(2)). But it does not follow from that that the "the rights of children were, throughout, at the forefront of the decision-maker's mind" (para 75, emphasis supplied). Still less does it follow that their best interests were being treated as a primary consideration. In agreement with the powerful judgments of Lord Carnwath and Lord Kerr on this point, it is clear to me that they were not.
226. The Government's contention was that "the long term shift in welfare culture", or "reversing the impact of benefit dependency on families and children", would be beneficial to children in the longer run. This may well be so, although it is interesting how little prominence was given to this aspect of the matter in the justifications put forward by the Government for their policy. But in any event, this is to misunderstand what article 3(1) of the UNCRC requires. It requires that first consideration be given to the best interests, not only of children in general, but also of the particular child or children directly affected by the decision in question. It cannot possibly be in the best interests of the children affected by the cap to deprive them of the means to provide them with adequate food, clothing, warmth and housing, the basic necessities of life. It is not enough that children in general, now or in the future, may benefit by a shift in welfare culture. Insofar as the Secretary of State relies upon this as an answer to article 3(1), he has misdirected himself".
"In relying on this guidance, Mr Wise accepted that it was not necessary for the decision-maker to address the issues in a "particular structured order", as the Court of Appeal may have understood his argument. What matters is the substance of what is done rather than the form. However those passages do show in my view that the evaluation needs to consider, where relevant, the interests both of children in general and of those directly affected by the action. It also needs to indicate the criteria by which the "high priority" given to children's interests has been weighed against other considerations. In so far as that evaluation shows conflict with the best interests of the children affected, it needs either to demonstrate how that conflict will be addressed, or alternatively what other considerations of equal or greater priority justify overriding those interests."
Justification in SG
"It is also necessary to recognise that transitional financial assistance is available for households affected by the cap who cannot move until suitable arrangements have been made in relation to the children, as I have explained. Although assistance of that nature may not constitute a complete or satisfactory answer to a structural problem of a permanent nature arising from discriminatory legislation, such as the inadequacy of housing benefit to meet the cost of accommodation suitable for the needs of severely disabled claimants (as was held in Burnip v Birmingham City Council  EWCA Civ 629;  PTSR 117), it is relevant to an assessment of the proportionality of a measure which is liable to give rise to transitional difficulties in individual cases."
"Viewed in the light of the primary consideration of the best interests of the children affected, therefore, the indirect discrimination against women inherent in the way in which the benefit cap has been implemented cannot be seen as a proportionate means of achieving a legitimate aim. Families in work are already better off than those on benefits and so the cap is not necessary in order to achieve fairness between them; saving money cannot be achieved by unjustified discrimination; but the major aim, of incentivising work and changing the benefits culture, has little force in the context of lone parents, whatever the age of their children. Depriving them of the basic means of subsistence cannot be a proportionate means of achieving it."
The Welfare Reform and Work Act 2016
"The benefit cap is working and we believe that the existing exemptions combined with additional funds that we have provided for discretionary housing payments provide the most effective means of increasing incentives to work and promoting fairness, while ensuring that the most vulnerable are supported."
The basis of the claim before Collins J
The judgment of Collins J
"But it is important to see whether a particular effect of the legislation has been taken into account. In this case, what has not, it is submitted, been taken into account is the position of lone parents with children under the age of two since they are particularly badly affected by the cap because they are not reasonably able to work and thus escape the cap and the financial assistance made available upon which much reliance is placed by the defendant does not provide the protection it is said to provide. The need to consider a particular group who are adversely affected is important…"
"…The important consideration for the purposes of these claims is the difficulty and often the impossibility of lone parents with children under two being able to work because of the need to have some means of caring for the child. There has not, in the figures set out in the Impact Assessments or the Equality Analyses been a specific assessment of the ability of such lone parents to enter work."
"give those affected no peace of mind. Whatever may have been the hope, the safeguard relied on is not by any means satisfactory. For those such as the claimants who are living on the edge of, if not within, poverty the system is not working with any degree of fairness." (para. 28)
"… those observations are entirely irrelevant in relation to lone parents such as the claimants who find themselves in real difficulty in being able to enter work because of the need to care for a child under two."
"38. … But I do not need to go into detail since, as will become clear, application of the MWRF test does not save the discrimination by showing justification."
39. Lord Carnwath decided to dismiss the appeal because the discrimination was against the parents not the children and the children would have been treated the same whether the lone parents were male or female. Mr Sheldon submits that the narrowing of the cohort does not avoid that conclusion since the convention right remains A1PI. It is to be noted that Article 8 rights of the children were not pursued as an issue in SG. Lord Reed in SG suggested at paragraph 29 that to apply Article 8 because the reduction in income constituted an interference with Article 8 rights of those affected would extend the ambit of Article 8 beyond current understanding. But it is submitted by Mr Wise that since then the court has in the claims relating to the bedroom tax accepted that Article 8 can apply. The case is R (MA and others) v. SSWP  1 WLR 4550. The 'bedroom tax' was a cap on housing benefit in under-occupation of properties. Incidentally, that case confirms the correctness of the MWRF test. One of the claimants was the wife of the householder who needed to sleep in a different room because of her disability. The cap affected her Article 8 rights as, without needing to give reasons, the court accepted. Thus it is clear that benefit cuts can properly be said to engage the Article 8 rights of those affected. That they can include the young children whose welfare is likely to be affected by the cuts in the benefits which are specifically for their benefit seems to me to be clear. It follows in those circumstances that Article 14 is in play. As is apparent from the SG decision and what I have said, there has been a failure to apply the best interests of these children. Thus the barrier to relief which Lord Carnwath felt bound to apply no longer is valid." (Emphasis added.)
"The Housing Benefit Regulations 2006, as amended by the Benefit Cap (Housing Benefit and Universal Credit) (Amendment) Regulations 2016, are unlawful insofar as they apply to lone parents with a child or children under the age of two, in that:
a. They involve unjustified discrimination against lone parents of children under the age of two, contrary to Article 14 ECHR read with (i) Article 1 of the First Protocol and (ii) Article 8 ECHR;
b. They involve unjustified discrimination against children under the age of two with lone parents, contrary to Article 14 ECHR read with Article 8 ECHR in light of Article 3 of the United Nations Convention on the Rights of the Child."
The grounds of appeal
"The legal position may, therefore, be summarised as follows in a case where, as here, the claim is that there has been an infringement of Article 14, in conjunction with Article 8. The claim is capable of falling within Article 14 even though there has been no infringement of Article 8. If the State has brought into existence a positive measure which, even though not required by Article 8, is a modality of the exercise of the rights guaranteed by Article 8, the State will be in breach of Article 14 if the measure has more than a tenuous connection with the core values protected by Article 8 and is discriminatory and not justified. It is not necessary that the measure has any adverse impact on the complainant in a positive modality case other than the fact that the complainant is not entitled to the benefit of the positive measure in question."
Was there discrimination and was it justified?
Discrimination as against the parents.
"In relation to the difficulties of finding work, data from the Office for National Statistics (ONS) indicate that 63.4% of single parents with dependent children were in work during the second quarter of 2014. An ONS analysis based on data for 2012 indicated that the employment rate for single parents with a dependent child under the age of 2 was 32%; for the age range 2-4 it increased to 42%; for the age range 5-11 it was 63%. Plainly, many single parents, including those on low incomes, make arrangements for the care of children in order to work. Their children over five years of age are required to attend school. Their younger children may attend nurseries or may be looked after by family members or child minders. The amount of work which a single parent has to perform, in order to be exempted from the cap, is only 16 hours per week. Even those hours need not necessarily be worked throughout the year: if a person works in a place of employment which has a recognisable cycle of employment, such as a school, the holiday periods during which she does not work are disregarded. As I have explained, assistance with meeting the cost of child care is available and is excluded from the cap. The statistics set out at paras 56 and 57 above do not support the contention that single parents with children under five have experienced greater difficulty in obtaining work than other claimants affected by the cap. Some people take the view that it is better for the single parent of a young child to remain at home full-time with the child, but there is no basis for requiring that view to be adopted by Government as a matter of law."
The passage refers to para.57 in which Lord Reed noted that figures up to March 2014 showed that 29% of households where lone parents had children under five which had been capped were no longer capped, and 38% of those had become exempt because the parent had obtained work. He described this as being in line with the figures for all households.
Was the discrimination justified?
"..the cap is capable of real damage to individuals such as the claimants. They are not workshy but find it, because of the care difficulties, impossible to comply with the work requirement."
The children claimants
Was article 3 engaged?
Lord Justice McCombe:
"… [On] the grounds, inter alia, that the benefit cap was unlawful because (i) it discriminated against women and large families on grounds of sex, race, religion, age and "other status" (lone parents), contrary to article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms when taken together with article 8 and/or article 1 of the First Protocol to the Convention ("A1P1"); (ii) it breached article 8 of the Human Rights Convention and/or article 3.1 of the United Nations Convention on the Rights of the Child; and (iii) the Secretary of State had acted irrationally or unreasonably in failing to obtain relevant information about the impact of the scheme on lone parents escaping domestic violence and on those in temporary accommodation." (see  1 WLR 1449, 1453 G – H)
The claims were dismissed and I take gratefully from the headnote in the Weekly Law Reports (at p.1450 C – F) the crux of the decision as follows:
"… [F]or the purposes of an article 14 claim the legislature's policy choice in relation to general measures of economic or social strategy, including welfare benefits, would be respected unless it was manifestly without reasonable foundation; that the view of the Government, endorsed by Parliament, that achieving the legitimate aims of fiscal savings, incentivising work and imposing a reasonable limit on the amount of benefits which a household could receive was sufficiently important to justify making the Regulations despite their differential impact on men and women, had not been manifestly without reasonable foundation; that although Convention rights protected in domestic law by the Human Rights Act 1998 could be interpreted in the light of international treaties that were applicable in the particular sphere, the United Nations Convention on the Rights of the Child was relevant only to questions concerning the Convention rights of children and not to a claim of alleged discrimination between men and women in the enjoyment of the property rights guaranteed by A1P1 ; that it followed that even on an assumption (per Lord Reed and Lord Hughes JJSC) or an acceptance (per Lord Carnwath JSC) that the Secretary of State had failed to show how the Housing Benefit Regulations 2006 were compatible with the article 3.1 obligation to treat the best interests of children as a primary consideration, such failure did not have any bearing on whether the legislation unjustifiably discriminated between men and women in relation to their enjoyment of A1P1 property rights; that it followed, further, that it would be inappropriate to substitute a test of non-compliance with article 3.1 of the UN Convention for the accepted test of manifestly without reasonable foundation; and that, accordingly, since on that latter test the discriminatory effect of the measure had been justified, there had been no violation of article 14 of the Convention read with A1P1."
"217. However, the international obligations which the United Kingdom has undertaken are also taken into account in our domestic law in so far as they inform the interpretation and application of the rights contained in the European Human Rights Convention, which are now rights in United Kingdom domestic law. There is no reason at all why those obligations should not inform the interpretation of the Convention right to the enjoyment of the substantive Convention rights without discrimination just as much as they inform the interpretation of the substantive Convention rights. ZH (Tanzania)  2 AC 166 happened to be a case about article 8 , as were H (H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening)  1 AC 338, and Neulinger 54 EHRR 31 itself. The Strasbourg court has taken the UNCRC into account in construing other articles of the Convention, most notably article 6 in relation to the fair trial of juvenile offenders, in V v United Kingdom (2000) 30 EHRR 121.
218. For these reasons, echoing Maurine Kay LJ in Burnip  PTSR 117, I agree that our international obligations under the UNCRC and CEDAW have the potential to illuminate our approach to both discrimination and justification. Whatever the width of the margin of appreciation in relation to the subject matter of a measure, the Strasbourg court would look with particular care at the justification put forward for any measure which places the United Kingdom in breach of its international obligations under another human rights Treaty to which we are party."
On the facts, Lady Hale's conclusion (at paragraph 229) (also quoted by Sir Patrick at paragraph 54 above) was this:
"229. Viewed in the light of the primary consideration of the best interests of the children affected, therefore, the indirect discrimination against women inherent in the way in which the benefit cap has been implemented cannot be seen as a proportionate means of achieving a legitimate aim. Families in work are already better off than those on benefits and so the cap is not necessary in order to achieve fairness between them; saving money cannot be achieved by unjustified discrimination; but the major aim, of incentivising work and changing the benefits culture, has little force in the context of lone parents, whatever the age of their children. Depriving them of the basic means of subsistence cannot be a proportionate means of achieving it."
"269. Depriving children of (and therefore their mothers of the capacity to ensure that they have) these basic necessities of life is simply antithetical to the notion that first consideration has been given to their best interests."
"97. … (iii) Was the Court of Appeal wrong to have found that the discriminatory effects of the 2012 Regulations on lone parents were justified and lawful, and not contrary to article 14 (read with article 8 and/or article 1 of Protocol 1 )? (iv) Was the Court of Appeal wrong to have found that the Secretary of State has complied with his obligation to treat the best interests of children as a primary consideration when implementing the benefit cap scheme? "
Lord Carnwath said little further about Article 8, in the context of Article 14, confining himself to this short passage at paragraph 99:
"99. Article 8 was also mentioned under issue (iii), and was relied on by Mr Ian Wise QC for the claimants in his printed case. However, as I understood it, this was not by way of challenge to the Court of Appeal's rejection of the "free-standing" claim under article 8, which is consequently not one of the agreed issues for this court. Rather he relied on article 8 either as an alternative route into article 14, or as supporting his "best interest" claim under issue (iv). I note that article 8 was not relied on by Mr Richard Drabble QC for the Child Poverty Action Group. I have not been persuaded that either of Mr Wise's formulations adds anything of substance to the claim based on A1P1."
"100. It is important also to understand how the interests of children affected by the scheme may be relevant to the legal analysis, either under the Convention itself, or indirectly by reference to article 3.1 of the United Nations Convention for the Rights of the Child (" UNCRC ") (best interests of children as "a primary consideration"). As to the Convention, the children have no relevant possessions under A1P1 in their own right; nor are they a protected class under article 14. However, as Baroness Hale DPSC has said, at para 218, the disproportionate impact on women arises because they are responsible for the care of dependent children. Elias LJ said in the Divisional Court  PTSR 23, para 62:
"In this case there is no dispute that the rights of the adult claimants under A1P1 (the right to peaceful enjoyment of possessions) are affected by a reduction in the benefits paid to them. And although the child claimants have no A1P1 rights themselves, we agree with [the Child Poverty Action Group's] submission that it would be artificial to treat them as strangers to the article 14/A1P1 arguments. The benefits in each case are paid to the mother to enable her both to feed and house herself and to feed and house her children."
I agree. Accordingly, in considering the nature of the admittedly discriminatory effect of the scheme on lone parents, and its alleged justification, the effects on their children must also be taken into account."
His Lordship noted that issue (iv) had been agreed by the Secretary of State in a form which raised directly the issue of compliance with Article 3.1 "without overtly questioning its legal relevance…". Thus, he said it seemed right to him to proceed on the basis that obligations under Article 3.1 were to be taken into account under the Convention. Lord Carnwath considered the facts on that issue and concluded (at paragraph 109):
"109. Accordingly, as the submissions and evidence stood at the end of the hearing, my view was that, judged by those criteria, the matters relied on by the Court of Appeal fell well short of establishing compliance. The Treasury's long term objective of taking children out of poverty, laudable in itself, was no substitute for an evaluation of the particular impact on the children immediately and directly concerned, and their parents."
At paragraph 112, his Lordship said that at that stage he had been of the provisional view that, in their application to lone parents and their dependent children, the regulations were not compatible with Convention rights.
"114. They summarised their submissions in the following six points: (i) article 3.1 of the UNCRC is a provision of an unincorporated treaty which may only be relied on to the extent that it has been transposed into domestic law; (ii) the European Court of Human Rights ("ECtHR") uses international law when determining the meaning of provisions of the Convention, in accordance with the Vienna Convention on the Interpretation of Treaties; (iii) article 3.1 of the UNCRC is, as a matter of principle and in accordance with Strasbourg authority, not relevant to the question of justification of discrimination under article 14 read with A1P1 . It has no role to play in determining the meaning of article 14 (read with A1P1 or otherwise), and does not inform or illuminate the question whether the differential impact on women of the benefit cap is proportionate; (iv) article 3.1 of the UNCRC does not supplant, dilute or compromise the Stec test (Stec v United Kingdom (2006) 43 EHRR 47). …"
"129. … 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 JSC, I feel driven to the conclusion that he is right."
He continued at paragraph 130 and 131 in these terms:
"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: …
131. 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 "strangers to the article 14/A1P1 arguments":  PTSR 23, para 62. 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 JSC says at 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 children's interests have been treated as a primary consideration as required by article 3.1 of the UNCRC."
"59. … [T]he impact upon the particular cohort bringing this challenge is particularly severe, since they are (i) more likely to be affected by the cap than couples with similarly-aged children, (ii) more severely affected as their the children are more likely to be profoundly impacted upon, and (iii) less likely to be able to escape it than others who do not have caring responsibilities for such young children:
a. They are more likely to be affected by the cap: Ms Dewar, on behalf of the Gingerbread single parents' charity, notes that lone parents caring for a baby or toddler make up more than a third (35%) of all the households hit by the Revised Benefit Cap: at [3.1] of her Statement (HB/1//2/233) [Quoted below in this judgment]. This disproportionate effect may arise for a number of reasons: as the Defendant's own statistics indicate, and as the Defendant accepts, lone parents generally, and particularly those with pre-school age children, are more likely to be in workless households than other groups, and also because of a number of structural matters regarding how the cap is defined (it includes, for example, maternity allowance which is a benefit only available to mothers of children in their first year).
b. As Professor Bradshaw explains, "the impact of poverty on health during the antenatal period, birth and infancy (in the first two years of life) is profound", Bradshaw at  (HB/1/2.221).
c. Lone parents of such young children are also less likely to be able to escape the Revised Benefit Cap as the significant time spent committed to providing care to their young dependant children acts as a barrier to work (a point that is apparent from each of the witness statements provided by the adult Claimants in these proceedings). The cohort represented by the Claimant includes women in the immediate post-natal period. Lone parents of children under two years old are particularly disadvantaged by the fact that the Defendant's support system of providing free childcare hours to parents of pre-school age children only commences at age two: see the witness statement of Ellen Broome, Joint Chief Executive of the Family and Childcare Trust, at , (HB/1/2.371). The 2016 IA described the availability of a free childcare as a form of "mitigation" of the adverse effects of the Revised Benefit Cap, but conspicuously ignored the fact that it was unavailable to lone parents within the present cohort.
d. Further, and tellingly, lone parents of children under two form a group that is not expected to find work, given the structure of the benefit system, and the lack of work conditionality for their benefits: see the discussion of "Conditionality" at - of Edson.
60. The present cohort is therefore in a very different position not only to that of couples with children aged two and under but also to that of one [sic] parents of two-year-olds and older."
I would add the point from Ms Broome's statement, made in the footnote to paragraph 59 c.; it is this:
"As explained at  of Ms Broome's Statement, the "additional costs associated with childcare for the very youngest children, aged under two, mean that even if there is childcare available in the local area, low income parents may not be able to access it". Those additional costs arise, in particular, from regulations that require one qualified member of staff for every three children aged under two, compared to one qualified member for every four two years old and up to 13 children for every qualified adult staff member for three and four year olds (at )."
"The Claimants have not identified a comparator so that discrimination can be assessed. If the comparator is lone parents with children over 2, there is no real differential treatment, when one looks to see the childcare provision that can be made for both cohorts".
"Accordingly, whilst the Claimants are correct that some lone parents of children under two years of age face special barriers to securing work, many lone parents already work; in October to December 2016, around 1.22 million lone parents were in employment (67.9% in the UK and the witness statement of Mr Edson shows many lone parents with children under two years of age already work…" (Emphasis added).
(And see below as to the "67.9%" figure)
"29. … Where an appeal is to proceed, like this one, by way of a review of the judgment below rather than a re-hearing, it will often be appropriate for this court to give weight to the assessment of the facts made by the judge below, even where that assessment has been made on the basis of written evidence which is also available to this court. The weight to be given to the judge's own assessment will vary depending on the circumstances of each particular case, the nature of the finding or factual assessment which has been made and the nature and range of evidential materials bearing upon it. Often a judge will make a factual assessment by taking into account expressly or implicitly a range of written evidence and making an overall evaluation of what it shows. Even if this court might disagree if it approached the matter afresh for itself on a re-hearing, it does not follow that the judge lacked legitimate and proper grounds for making her own assessment and hence it does not follow that it can be said that her decision was "wrong"."
"53. My previous witness statement did not state nor imply that the official statistics showed that the original benefit cap encouraged people to work or reduced long term dependency on benefits. The official statistics show the total number of previously capped households that have moved into work. These statistics are not intended to show whether these households did so as a direct result of the benefit cap and it is accepted that some of these households may have moved into work anyway. However, these statistics do demonstrate the number of households that have found work – whether that is due to the cap or for other reasons – and that the number doing so has continued to increase over time. This shows (consistent with the findings stated at paragraph 134 of my previous witness statement) that it is possible for households affected by the cap, including lone parents, to move off the cap and enter employment."
The fact that people move off the cap does not seem to me, however, necessarily to justify their presence within it in the first place.
"29. Similarly, on the evidence before the Judge, couples with children aged less than 2 suffer more detriment under the benefit cap when compared with lone parents children aged less than 2 because both are subject to the same cap, yet couples have an extra adult to feed and clothe.
30. As D§13 the Judge refers to "lone parents with children under the age of two … are particularly badly affected by the cap because they are not reasonably able to work and thus escape the cap…" However, it is not clear what evidence was relied upon to make this assertion; the evidence before the Judge was that 67.9% of all lone parents (1.2 million; see Edson2 at [SB1/19/1-530]) were in work in October to December 2016, and around 40% of lone parents with children under two were in work in 2015 (Edson2, §32(a) [SB1/19/1-526])."
"3.1 Lone parents with young children are disproportionately affected by the benefit cap. Lone parents caring for a baby or toddler make up more than a third (35 per cent) of all the households hit by the new, lowered benefit cap;
3.2 The problem of juggling work and childcare are the most acute for lone parents of those who have a baby or toddler. These problems are not only related to the cost of childcare but include the logistics of meeting the needs of the very young children and their older siblings;
3.3 The benefit cap represents a move to what is often called a 'work first' approach which encourages a move into work (any work) as quickly as possible, rather than supporting lone parents to return to the sort of work that best suits them and the care of their children, (for example having obtained training or voluntary experience which improves their work prospects or having crafted workable childcare arrangements) and which will be sustainable. Gingerbread considers that there has been insufficient consideration of whether or not those moving off the cap and into work are able to remain in work in the medium or long term;
3.4 In-depth interviews conducted by the government showed that lone parents who found work (under the previous cap) were more likely than those who did not to have children over four in school or nursery;
3.5 There is a shortage of part time job vacancies and these include vacancies which would be unsuitable for lone parents with young children as they include evening and overnight jobs. Just 8.7% of jobs which we looked at when we took a snapshot from the government's job brokering website were for part time work. Some of these jobs will have been for less than the required 16 hours needed to escape the cap, and some will require flexible working which is not compatible with paid childcare, or zero hours contracts which do not guarantee that the employee will qualify for working tax credit and are not compatible with arrangements for childcare; …
3.7 The government does not keep figures on the number of people who are pregnant and who are affected by the benefit cap. From Gingerbread's helpline calls we know that pregnant women are affected. Examples of calls from lone parents to our helpline affected by the benefit cap are included in the submissions to the Work and Pensions Committee: these are typical examples of calls which we receive. Gingerbread considers that, for the reasons set out above and in our submissions to the committee, parents with a young child are less likely to escape the cap than those where the youngest child is of school age. Lone parents with pre-school aged children are finding it difficult to find work or cheaper accommodation to escape the cap. Instead lone parents and their young children are becoming poorer and are at risk of homelessness."
Similar points are made by Ms Polly Neate of Women's Aid at paragraph 14 of her statement and by Ms Atkinson in paragraphs 87 and 88 of her statement. I take only some examples.
"159. The benefit cap is, of course, quintessentially a matter of social and economic policy. In such matters, as Lord Hope of Craighead observed in R v Director of Public Prosecutions, Ex p Kebilene  2 AC 326, 381, it will be easier for the courts to recognise a discretionary "area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention". As Lord Reed JSC explains, the introduction of the cap was indeed extensively debated in Parliament and various amendments were proposed and resisted which would have mitigated the adverse effects with which we are here concerned. But the details of the scheme, including those adverse effects, were deliberately left to be worked out in Regulations. It is therefore the decisions of the Government in working out those details, rather than the decisions of Parliament in passing the legislation, with which we are concerned.
160. Furthermore, as Lord Hope went on to say in In re G (Adoption: Unmarried Couple)  AC 173, para 48, protection against discrimination, even in an area of social and economic policy, falls within the constitutional responsibility of the courts:
"Cases about discrimination in an area of social policy, which is what this case is, will always be appropriate for judicial scrutiny. The constitutional responsibility in this area of our law resides with the courts. The more contentious the issue is, the greater the risk is that some people will be discriminated against in ways that engage their Convention rights. It is for the courts to see that this does not happen. It is with them that the ultimate safeguard against discrimination rests."
Therefore, even in the area of welfare benefits, where the court would normally defer to the considered decision of the legislature, if that decision results in unjustified discrimination, then it is the duty of the courts to say so. In many cases, the result will be to leave it to the legislature to decide how the matter is to be put right."
Sir Brian Leveson P:
Appendix to the judgment of Sir Patrick Elias
The paragraphs (23-36) in the judgment of Collins J describing the circumstances of the four lone parent claimants.
23. DA was homeless living with her 4 year old son in a refuge in North London as a result of serious domestic violence from her husband which led to her having to leave her council flat. She is due to give birth in mid-June. When living in the refuge, she was not subjected to the cap since it does not apply to those victims of violence who have to live in a refuge. It was submitted that she was not able to be a claimant since she was not a lone parent with a child under two and was living in a refuge. That objection has not been seriously maintained since she will become subject to the cap when she gives birth on leaving the refuge. Furthermore, I was informed that she has now been given emergency accommodation for those who are homeless which costs £247 per week. She has investigated the possibility of private accommodation but has found, as is confirmed by her solicitor who has made a statement based on her experience of dealing with many clients who are homeless or suffering the effects of the benefit cap or the bedroom tax, that very few private landlords are prepared to accept tenants who depend on housing benefit particularly if they are capped. As must be obvious, when she gives birth she will not be able to work particularly as she wishes to breastfeed. Furthermore, the council has refused to allow her to join its housing list since she came from outside its area as she was fleeing violence and does not have the necessary four year residence in the borough. She has been informed that when capped she will have £217 per week available for rent. She has mental and physical problems as does her son. She is anxious to work when she can.
24. EA is a lone parent of three children aged 9, 8 and 18 months. Her youngest is also a claimant. She is a recovering drug user. She lives in Sussex in private rented accommodation. She was evicted from her previous accommodation in Brighton because her landlord wanted to sell the property and moved to cheaper accommodation having been unable to obtain assistance from the council. Having been subjected to the cap, there was a shortfall of £137.18 per week. She managed to obtain a DHP but was told by the council that she was expected to return to work by February 2017. She has managed to obtain further short term DHPs with short gaps in-between when she was forced to rely on food banks. Her latest DHP has been granted until 26 June 2017 and she has been told it will not be extended unless she applies for a personal independent payment. As a result of childhood abuse, she suffers from mental health problems. She attended her job centre but was not informed of the existence of the flexible support fund which is supposed to provide some support for those who are unable to find work. She wanted to return to college to complete her studies in order to improve her prospects of finding work but cannot do that so long as her youngest child needs her care. She has made enquiries of local childcare nurseries and child minders. Many did not take children under 2 and the minimum fee for those who did was £4.25 per hour which was impossible for her to meet. She is particularly affected by her inability to pursue studies to improve her future earning capacity.
25. KF has four children aged 10, 7, 5 and 1, the youngest being also a claimant. She has no support from the two fathers of her children. She lives in very unsatisfactory accommodation which needs repair and is too small. She worked until she was made redundant when pregnant with her first child since when she has not worked, considering that she needed to look after her children, but intends to work when her youngest is able to receive childcare which she can afford. She had intended to work but her pregnancy, which was not intended, prevented it. She was capped in January 2017 with the result that there was a shortfall of £54 per week between her Housing Benefit and her rent. She has had great difficulty in obtaining a DHP. Her borough, Islington, requires an application for DHP to be made by a "specified partner", in her case her landlord. Why that requirement is made has not been explained but it undoubtedly created problems for her since her landlord sent the application to the wrong department. She was then informed, once the application had been properly made, that her application would not be successful if she did not engage with the work programme. The way in which she was treated caused her much distress, albeit she did obtain a DHP until 1 April 2017. After a gap, during which she had to cut back on food and only partly managed to make ends meet, she has received a DHP valid until 2 July 2017. She wishes to work, but has to be able to give proper care to her children.
26. WBA has four children, aged 17, 14, 13, 7 and 14 months, the youngest also being a claimant. The youngest child was conceived following a rape by her husband: she has indeed been the victim of an abusive relationship over the years. She has since February 2017 been living in suitable accommodation, but the cap has resulted in a shortfall of £151.76 per week. She was able to obtain DHPs but only for short terms and with no promise that they would continue. On having been granted a DHP on 20 April 2017, the council wrote a letter dated the same day saying it had been cancelled. The way she has been treated has distressed her. She wishes to work when she can.