What hope has the Court of Appeal left for human rights?

 

On 21 February 2014 the Court of Appeal dismissed human rights challenges to the benefit cap1 R(SG and others) (previously JS and others) v SSWP [2014] EWCA Civ 156 (21 February 2014). and the bedroom tax.2 R(MA and others) v SSWP [2014] EWCA Civ 13 (21 February 2014). Mike Spencer considers the implications for human rights arguments in social security cases.

The UK courts have historically been reluctant to read an enforceable right to welfare benefits into the Human Rights Act 1998. Two important exceptions stand out. In Limbuela,3 R(Limbuela) v Secretary of State for the Home Department [2005] UKHL 66 the House of Lords ruled that the withdrawal of accommodation and subsistence to asylum seekers could amount to a breach of Article 3 of the European Convention on Human Rights (ECHR), which prohibits inhuman and degrading treatment. In Gorry and Burnip,4 RG v Wiltshire Council and SSWP [2012] EWCA Civ 629 the Court of Appeal found that the size criteria for housing benefit (HB) in the private rented sector discriminates unlawfully against disabled children who cannot share a room and disabled adults who need overnight carers to stay overnight, in breach of Article 14.

With the onset of austerity and welfare reform, would human rights come to the rescue and protect the most vulnerable from discrimination and destitution? The UK’s ratification on the UN Conventions on the Rights of the Child (UNCRC) and on the Rights of Persons with Disabilities (UNCRPD) raised hopes that the rights of those groups would be protected from the worst. The Parliamentary Joint Committee on Human Rights criticised the Secretary of State for failing to undertake an adequate analysis of the human rights implications of his proposals in the Welfare Reform Act 2012.

Now the Court of Appeal has considered the human rights implications of two of the Welfare Reform Act 2012’s flagship reforms:

In the benefit cap case (SG and others), the claimants were two single mothers both with three children who had fled domestic violence and were subject to the benefit cap. They argued that the regulations implementing the cap breached Article 8 of the ECHR (which protects the right to private and family life), Article 3(2) of the UNCRC (which requires the government to consider the best interests of children) and indirectly discriminated against them on grounds of sex contrary to Article 14 ECHR. In the bedroom tax case (MA and others), a group of disabled people who, for various reasons connected to their disability, either needed an extra room or were unable to move to a smaller property, argued that the size criteria discriminated against them on grounds of disability.

Lord Dyson, Master of the Rolls, dismissed both appeals. His reasons, set out in two separate judgments delivered on the same day, raise common themes.

This was only argued in the benefit cap case. The Court of Appeal accepted at the outset that:

On whether the benefit cap was one of those extreme cases, the Court had ‘no doubt that some families will suffer hardship’ and acknowledged that the ‘cap will bear particularly harshly on larger families and single parents’. But the aim of the cap was to encourage the families to change their position and improve their finances – eg, by finding cheaper accommodation or finding work. In this context, the treatment fell ‘well short’ of the level of destitution required to breach Article 8.

Given the courts’ historic reluctance to find that human rights require a minimum level of subsistence, this ruling was perhaps unsurprising. Nevertheless, the judgment leaves the door open for Article 8 arguments in more extreme or exceptional cases. For example, increased conditionality for employment and support allowance claimants and lone parents, coupled with longer and harsher sanctions in universal credit, raises the possibility of families in exceptional circumstances falling into prolonged and unavoidable destitution or homelessness which may reach the threshold for Article 3 or Article 8.

In both cases, the Court accepted that the reforms were discriminatory. In MA and others, the Court found that the bedroom tax ‘if read in isolation... plainly discriminates against those disabled persons who have need for an additional bedroom by reason of their disability as compared with otherwise comparable non-disabled persons who do not have such a need’. Similarly, in SG and others, the Secretary of State conceded that the benefit cap has a ‘disproportionately adverse impact on women generally’ and on lone parents, 92 per cent of whom are women.

The central issue in both cases was, therefore, whether the discriminatory treatment could be justified. The problem for the claimants was that the test for justification in welfare benefits cases has been set high by the European Court of Human Rights in Stec6 Stec v United Kingdom (2006) 43 EHRR 47 and the Supreme Court in Humphreys:7 Humphreys v HMRC [2012] UKSC 18 (16 May 2012)the justification must be ‘manifestly without reasonable foundation’, although ‘careful scrutiny’ of the government’s objectives is still required. The Court of Appeal found that this high test was not met. The reforms involved issues of ‘high policy’ and were introduced to tackle the deficit and (in the case of the benefit cap) change the culture of ‘welfare dependency’. The Court gave particular weight to the availability of discretionary housing payments (DHPs) and the fact that the issues raised by the claimants had been ‘expressly’ debated when the regulations were before Parliament.

However, the judgment still leaves open the possibility of a discrimination argument in other contexts.

Firstly, the Court in MA and others took a slightly different approach to the case of one of the claimants, the Carmichaels, an adult couple who are unable to share a bedroom because of disability. They argued that they should be treated in the same way as two disabled children who were unable to share, who, following Burnip, are entitled to separate rooms. The Court dismissed this argument, finding that the differential treatment of adults and children was capable of ‘objective and reasonable justification’, because of the need to take into account the best interests of children. This reasoning may not apply in other cases. For example, in R(Rutherford) v SSWP8 CO/13841/2013 – see information on this case

a case due to be heard in the High Court about a child who needs overnight care, the regula-tions protect adults but fail to protect children who require overnight care.

Secondly, by placing emphasis on the role of DHPs, initially intended for temporary circumstances, the Court left open the possibility of further challenge should funding for DHPs be greatly reduced. It also turns the spotlight on local authority DHP policies. CPAG is aware of two such judicial review challenges pending – one to Sandwell Council’s policy of treating disability living allowance as income and another challenge to Westminster Council’s policy of imposing conditionality on DHPs paid to families affected by the benefit cap.

Finally, the judgments leave open the possibility of Article 14 claims in other areas of social welfare law, particularly where the claim does not involve ‘high policy’ or where regulations have not been debated in Parliament. For example, the courts may be less sympathetic to local government welfare or council tax schemes that indirectly discriminate against women or the disabled.

One criticism of the judgments is the absence of any proportionality assessment. Particularly in the benefit cap case, there was little attempt to weigh the distress to the claimants and others from facing homelessness and having to move far away from support networks against the government’s objectives. This is likely to be an issue in the Supreme Court.

In both cases, the claimants relied on international treaties to back up their human rights arguments. In the benefit cap case, this was Article 3(2) of the UNCRC, which requires that ‘in all actions concerning children... the best interests of the child shall be a primary consideration’. The Secretary of State had argued (in the High Court) that the UNCRC had no binding effect in English law, but this argument was rejected. However, the Court decided that the government was aware of the impact the cap would have on children but was keen to lift families out of ‘benefit dependency’. There was no duty to address these considerations in any particular order, and the rights of children were ‘at the forefront of the decision-maker’s mind’. Contrast this with the approach of the Court to the UNCRPD in the bedroom tax cases. Judge Cranston in the High Court commented that ‘some caution is required as regards the use to be made of unincorporated international conventions’ and that they could be only be deployed as an aid to construction where a statute is ambiguous. However, both cases will still be relevant in human rights cases, particularly where there is ambiguity.

The Court of Appeal's judgments may end up being overturned in the Supreme Court or the European Court of Human Rights. In the meantime, although the rulings are disappointing, they still leave open some room for human rights arguments in welfare benefits cases.

Since time of writing, the Supreme Court has granted permission to appeal in the benefit cap case (SG and others). The case will be heard on 29 and 30 April 2014.  For updates, see the test case page.

Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.