By section 10 of the Welfare Reform Act 2012 (as amended by the Welfare Reform and Work Act 2016), and regulations 4, 24A and 24B of the Universal Credit Regulations 2013, an individual or couple in receipt of universal credit received an additional amount for each child for whom they were responsible and who “normally lived with” them up to a maximum of two children, subject to exceptions in certain defined circumstances. The exceptions to the two child “cap” applied where the presence of the third or any subsequent child was the result of multiple births or non-consensual conception (“NCC”), or where any of the children had joined the family as a result of adoption or non-parental caring arrangements (“the non-parental exceptions”). The rationale for the statutory scheme was that supported families claiming universal credit ought to be subject to the same economic framework when choosing another child as self-supporting families, so that the exceptions should be limited to circumstances where there was either no choice about conceiving a third or subsequent child or where, as in the case of non-parental care or adoption, a non-birth family was increased by effectively taking a child out the care system, which provided a net economic and social benefit to the state and was governed by a different economic framework in any event. The first claimant had three children, the elder two of whom were recognised as NCC and one of whom had rejoined the family from care after the third child was born. The second claimant had two NCC children plus a third who had been born while the second claimant was in a consensual relationship. The effect of the “ordering” provisions in regulations 24A and 24B was that neither claimant was able to claim the child element of universal credit for her third child. Although in earlier, unrelated proceedings the Supreme Court had found the primary legislation to be lawful, the claimants sought judicial review challenging the lawfulness of the ordering provisions in the 2013 Regulations as being unlawfully discriminatory, contrary to article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms read with article 3 and/or article 8 of the Convention and/or with article 1 of the First Protocol thereto, by reason of: (i) the differential ordering provisions for the NCC and non-parental exceptions in the regulations, in that the non-parental exceptions were available whenever a new child joined the family, including where biological children came along afterwards, whereas the NCC exception applied only where it was the third or subsequent child who joined the family in that way; and (ii) the lack of special provision in respect of third or subsequent consensually-conceived children born to mothers of NCC children.
On the claim for judicial review—
Held, claim dismissed. (1) The claimants’ status as mothers of NCC children was an “other status” for the purposes of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Further, it was one which, if discrimination were identified, would be of a “highly suspicious” nature, thus heightening the intensity of review required by the court in the later stages of the analysis. It was plain and undisputed that the Universal Credit Regulations 2013 treated mothers of NCC children identically to mothers of consensually-conceived children for present purposes, and differently from those who had adopted or were looking after someone else’s children. While there was some doubt as to whether mothers of NCC children were in a genuinely analogous situation to those who had adopted or were looking after someone else’s children, given that the former had automatic default parental responsibility under the law whereas the latter did not, the court ought to avoid a rigidly formulaic approach to the analysis and thus the real question was whether the difference of treatment between mothers of NCC children on the one hand, and adopters and non-parental carers on the other, could be shown to be justified as a proportionate means of achieving a legitimate aim. In that regard, the ordering provisions in the 2013 Regulations, just like the two-child limitation itself in the Welfare Reform and Work Act 2016, pursued the important and legitimate aims of controlling public expenditure and maintaining a fair benefits system by not privileging supported over self-supporting families in the economics of addition to an average-sized family, while the non-parental exceptions further served the socioeconomic rationale of supporting adoption arrangements, and finding non-birth parent alternatives to local authority care, which rationale existed whatever order families had (up to two) children of their own and took on other people’s children as well. The logic of making no special provision in the scheme for NCC mothers was to place them in the same position as NCC mothers in self-supporting families, who would face sometimes difficult and sad choices within economic constraints. By contrast, the logic behind the differential ordering scheme for the non-parental exceptions was that of investing public money in alternatives to local authority care where a biological family could not or decided not to look after its own children. The scheme of exceptions was rationally connected to its aims and no less intrusive measure had been suggested as capable of achieving those aims. Even proceeding on the basis that the status of mothers of NCC children was properly one which demanded intense inquiry when considering whether their comparative treatment under the 2013 Regulations was justified, the proper conclusion was that the scheme was proportionate as striking a fair and reasonable balance between the rights of mothers of NCC children and the objectives pursued by the scheme. In particular, the scheme had been framed with the aim of ending the comparative advantage of mothers of NCC children who were recipients of universal credit over those who were not, which was itself a fairness measure. The claimants’ challenge involved two competing socioeconomic versions of fairness, in which regard the competing arguments about where a fair and reasonable balance could be struck were not the sorts of argument that a court could legitimately arbitrate or, where they had been settled in a contested political process, with which a court could legitimately interfere (paras 12, 30, 34, 38, 39, 43, 44, 46, 47, 50–53, 57, 58, 60–65, 69, 72, 73, 76–80, 83–90, 96, 99, 107, 108, 109).
(2) No positive duty of the state had been articulated under article 3 of the Human Rights Convention, nor was the high level systems duty engaged in the present case. The claimants had not had their autonomy modified by the state, nor did the risk of intervention by the care system found an article 3 systems duty, it instead being the fact of intervention or the assumption of responsibility which founded the duty, which was not the present case. In any event, the present challenge did not relevantly engage with the interface between personal autonomy and state control so as to enable a systems duty to arise from such facts. The claimants had been subjected to violation of their personal and reproductive autonomy by the criminal acts of “non-state agents” and their welfare autonomy was not said to have been displaced or removed by, or ceded to, the state. On the question whether the ordering provisions placed persons in the position of claimants such as in the present case at an increased risk of future harm because without financial support they were more likely to experience future abuse, those empirical propositions had not been developed or evidenced (paras 121–125, 127, 129–131, 133, 134, 137–139).
Karon Monaghan KC and Tom Royston (instructed by Child Poverty Action Group) for the claimants.
Galina Ward KC and Yaaser Vanderman (instructed by Treasury Solicitor) for the Secretary of State.