A Case study: art 14 ECHR: International law in benefits cases Zoë Leventhal

introduction Focus on recent Article 14 ECHR cases in which international law rights have become central, applying the Demir (2008) 48 EHRR 1272 principle: why? How do these international law rights “illuminate” Article 14? Do they alter the test for justification? If not, what do they add? Article 3, United Nations Convention on the Rights of the Child (UNCRC) United Nations Convention on the Rights of Disabled Persons (UNCRPD)

Context: Why article 14? High threshold for Article 14 arguments in benefits cases: general measures of economic or social strategy quintessentially ones for legislature / executive; The “manifestly without reasonable foundation” margin of appreciation (Stec v UK 43 EHRR 1017, §52) Becoming a mantra? The 4-stage proportionality test collapsing into one single refrain: is this policy judgment by the Secretary of State “manifestly without reasonable foundation”?

Article 14 – the test The orthodoxy: RJM v SSWP [2009] AC 311 at 57 per Lord Neuberger: “The fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected… Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable”. MA v SSWP [2016] 1 WLR 4550 at 32 per Lord Toulson: “The fundamental reason for applying the manifestly without reasonable foundation test in cases about inequality in welfare systems ….[is] Choices about welfare systems involve policy decisions in economic and social matters which are pre-eminently matters for national authorities.”

reframing the scope of art 14? Major welfare reform: increasing willingness to “reach for” international conventions. In search of more nuanced tool than the blunt MWRF test? 4 examples / stages in the analysis Burnip v Birmingham CC [2013] PTSR 117 (the first “bedroom tax” case) whether statutory criteria for calculating housing benefit for private rented sector by reference to one bedroom per “occupier” were indirectly discriminatory against people with congenital disabilities who needed an overnight carer (Article 14 / A1P1)? CA (Maurice Kay, Hooper LJJ, Henderson J) – yes. Unlawful failure to make an exception for people with congenital disabilities who needed an overnight carer. Their objectively verifiable need for housing was different i.e. two bedrooms rather than one (see Henderson J at 46).

Burnip cont …. UNCRPD (ratified by UK on 7 August 2009), Article 4(1)(b) obliges state parties to: “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs of practices that constitute discrimination against persons with disabilities.” Article 5(3) UNCRPD provides that: “in order to promote equality and eliminate discrimination, state parties shall take all appropriate steps to ensure that reasonable accommodation is provided.” Article 19 – equal right of all persons with disabilities to live in the community with choices equal to others (including choice of living arrangement)

Burnip cont …. Maurice Kay LJ at §19-22. Applied Demir and Opuz v Turkey 2009 50 EHRR 695 at 185 (on Article 14): “when considering the definition and scope of discrimination against women, in addition to the more general meaning of discrimination as determined in its case law, the court has to have regard to the provisions of more specialised legal instruments and the decisions of international legal bodies on the question of violence against women.” If the correct legal analysis of the meaning of article 14 discrimination had been “elusive or uncertain” (it was not), Maurice Kay LJ would have resorted to CRPD and it would have resolved the uncertainty in favour of the claimants. “It seems to me that it has the potential to illuminate our approach both to discrimination and justification.” §22

2) SG v SSWP [2015] 1 wlr 1449 “Illumination” becomes determination (nearly)? Benefit cap: overall cap on welfare benefits introduced under Welfare Reform Act 2012, s 96 and associated regulations Disproportionate effect on lone parents and their children. By time of SC, argument was framed as indirect sex discrimination under Art 14 / A1P1 Focus of argument became children’s rights under the UNCRC – straining against MWRF approach? A majority: breach of Art 3 UNCRC (Baroness Hale, Lord Kerr, Lord Carnwath). Insufficient / misdirection to refer to aim of raising (future) children out of poverty generally, when effect of measure was in fact to place individual children / families below subsistence levels Different majority (after post-hearing submissions) found that Art 3 was not relevant to the alleged discrimination i.e. against women in respect of their property rights (Lord Carnwath, Lord Hughes, Lord Reed)

SG v SSWP cont … Court did agree that international law rights are relevant in Art 14 cases (applying X v Austria): Lord Hughes (142-4), Lord Carnwath (113-9), Baroness Hale (211-218), Lord Kerr 258-62): this principle (helpfully) extracted by Lord Wilson in Mathieson at §43 But not always: there must be a sufficient link between the nature of the challenge before the Court and the provision of international law in question: A “necessary factual or legal relationship” para 89 Lord Reed A “direct link” para 130 Lord Carnwath The “necessary connection” para 142 Lord Hughes 3: 2 majority held, in short, that there was an insufficient such link in that case

3) Mathieson v SSWP [2015] 1 WLr 3250 Application of SG to a case about discrimination between different groups of disabled children (heard 8 days after judgment in SG) Child Disability Living Allowance (DLA) payable as a matter of law to the child – so CM himself had an entitlement but for the impugned rule Issue was time limit on DLA for a child in hospital. Justification: care provided by NHS in hospital thereafter and not by parents so lower costs Lord Wilson found a breach of the procedural aspect of Art 3 UNCRC (applying GC14) (and Art 7.2 UNCRPD) because no evaluation of children’s best interests. Clear evidence that in fact parents provided as much if not more care whilst children in hospital (and incurred much higher costs). SSWP’s position appeared outdated and unevidenced

Mathieson cont… Held that regulations limiting payment of DLA constituted “an action” concerning children by an administrative authority with delegated legislative powers (cf. Art 3 UNCRC) Breach of procedural aspect of Art 3 in absence of any proper review generated “unsurprisingly – might one say inevitably” a violation of the substantive right (and under Art 7.2 UNCRPD): § 41 What did the breach of international law mean in Art 14 terms? “A conclusion, reached without reference to international Conventions, that the Secretary of State has failed to establish justification for the difference in his treatment of those severely disabled children … would harmonise with a conclusion that his different treatment of them violates their rights under two international Conventions.” §44 Delivering on the promise of SG in substance but not form?

4) Ds & DA v SSWP (forthcoming) Revised benefit cap: lower cap, significant increase in numerical and geographical reach across country. 72% of all affected are lone parents Reframed as discrimination against children of lone parents and lone parents themselves under Art 8 ECHR and Art 14 (and Thlimmenos claim by DA appellants in respect of lone parents with children under 2) High Court (Collins J) found a breach of Art 3 UNCRC, upheld unanimously by the CA, but CA majority (Sir Patrick Elias and Sir Brian Leveson P) held that there was still an insufficient connection to discrimination alleged (§128 & 182-4) so Art 3 UNCRC not in fact relevant to discrimination McCombe LJ held that there was sufficient connection and that therefore the policy was manifestly without reasonable foundation: §177-8.

DS & DA SSWP cont… 7 judge panel (original SG court + Lord Wilson and Lord Hodge) heard argument this week on these questions: Is it a breach of Art 3 UNCRC for SSWP to judge overall that the best interests of children will be served by the policy (because it is judged to improve their future “life chances” if they are in a working household) even though a majority of households will not move into work? If so, what weight does a breach of Art 3 UNCRC have in the proportionality balance? Does it determine the justification issue? Does that usurp MWRF? Or does it just weigh heavily against the proportionality of the measure?

Concluding thoughts Relevance of a breach of an international convention: Failure to treat best interests of children as a primary consideration means simply that the policy cannot be a proportionate means of achieving a legitimate aim? cf. Baroness Hale in SG at §229. Failure to comply with the procedural aspect, i.e. to assess best interests as a primary consideration, means that the court is deprived of the considered view of the decision-maker and thus grounds for any ‘deference’, even applying a MWRF standard of review? Cf. Mathieson; and Lord Kerr in In Re Brewster [2017] UKSC 8 at §50; 64 Alternative, return to applying the full rigour of the 4 stage test and not applying MWRF at the ‘fair balance’ stage, even in high policy cases? c.f. Recovery of Medical Costs for Asbestos [2015] UKSC 3 at §46 per Lord Mance; A & B v SS for Health [2017] 1 WLR 2492 at §33 per Lord Wilson

Zoe LEVENTHAL zoeleventhal@matrixlaw.co.uk Griffin Building, Gray’s Inn London WC1R 5LN DX400 Chancery Lane, London