Introduction

The case SC & Ors v Secretary of State for Work and Pensions & Or ([2018] EWHC 864 (Admin)) presents a significant challenge to the United Kingdom's welfare system, specifically addressing the implementation of the "two child rule." This provision limits the payment of Child Tax Credit (CTC) and its replacement, Universal Credit (UC), to families with no more than two children, subject to certain exceptions. The Claimants, representing three different families, argued that this legislative change contravened several articles of the European Convention on Human Rights (ECHR), namely articles 8, 12, 14, 9, and Article 1 of the First Protocol (A1P1).

Supported by the Equality and Human Rights Commission (EHRC), the Claimants sought a declaration under the Human Rights Act 1998 that the two child provision was incompatible with the ECHR. They also contested the manner in which exceptions to this rule were regulated, arguing for a declaration that these regulations were irrational and ultra vires. The central issues revolved around the rights to private and family life, the right to found a family, non-discrimination, and the right to peaceful enjoyment of possessions.

Summary of the Judgment

Justice Ouseley delivered the judgment, ultimately dismissing the Claimants' applications. He found that the two child provision did not breach the ECHR, determining that there was no direct interference with articles 8 or 12 and that any indirect discrimination under article 14 was justified. The judgment emphasized the legitimacy of the government's objectives in reforming the welfare system, primarily aiming to reduce public expenditure and encourage familial financial responsibility akin to those not reliant on benefits.

The court held that the legislative changes were proportionate to the aims pursued and were not manifestly without reasonable foundation. Additionally, Justice Ouseley addressed the arguments related to the United Nations Convention on the Rights of the Child (UNCRC), concluding that the UNCRC did not directly engage the articles of the ECHR invoked by the Claimants in this context.

Analysis

Precedents Cited

The judgment extensively referenced several key cases shaping the interpretation of ECHR articles in the context of social welfare. Notably:

• Okpisz v Germany [2006] 42 EHRR 32: Established that child benefits fall within the ambit of article 8 for non-discrimination purposes.
• Stec v UK [2006] 43 EHRR 47: Clarified that ECHR obligations do not necessarily require the state to create new social security schemes or benefits.
• Burnip v Birmingham City Council [2012] EWCA Civ 629: Emphasized the distinction between benefits intended for ordinary living expenses and housing needs.
• R(MA) v Secretary of State for Work and Pensions [2016] UKSC 58: Discussed the direct engagement of article 8 through welfare legislation, reinforcing that substantial interference must be justified.
• R(SG and JS) v Secretary of State for Work and Pensions [2014] EWCA Civ 156: Reiterated that indirect discrimination must align with legitimate aims to be justified.

These precedents informed the court's stance on how legislative changes in welfare relate to human rights obligations, particularly regarding non-discrimination and the right to family life.

Legal Reasoning

Justice Ouseley navigated through the complex interplay of the ECHR articles, dismissing the Claimants' assertions by methodically addressing each alleged breach:

• Articles 8 and 12: The court found no direct interference with the right to private and family life or the right to found a family. The limitations imposed by the two child provision did not amount to a breach under these articles as there was no established jurisprudence suggesting that the absence of specific benefits directly interfered with these rights.
• Article 14 (Non-Discrimination): The Claimants argued that the provision indirectly discriminated against women and certain children. However, the court accepted that any indirect discrimination was justified, given the legitimate aims of reducing public expenditure and encouraging familial financial responsibility. The court evaluated whether the differential treatment was "manifestly without reasonable foundation" and concluded it was not.
• United Nations Convention on the Rights of the Child (UNCRC): While the UNCRC was cited by the Claimants as an interpretative aid, the court held that it did not directly engage the ECHR articles in question. The court emphasized the dualist approach of the UK legal system, where international treaties like the UNCRC are not incorporated into domestic law unless expressly legislated.

The judgment underscored the principle of judicial deference to legislative decisions, especially in socio-economic policies where Parliament is deemed better positioned to balance competing interests.

Impact

The dismissal of this case reaffirms the government's authority to implement welfare reforms within the framework of human rights obligations. It sets a precedent that legislative changes aimed at reducing public expenditure and promoting financial responsibility are likely to be upheld, provided they meet the proportionality and legitimacy tests under the ECHR.

For families with more than two children, this judgment clarifies that restrictions on benefits do not inherently violate their human rights, barring any unjustifiable discrimination. It emphasizes the necessity for legislative bodies to ensure that welfare policies are both economically sustainable and respectful of the familial structures within society.

Complex Concepts Simplified

The European Convention on Human Rights (ECHR)

The ECHR is an international treaty to protect human rights and fundamental freedoms in Europe. Articles relevant to this case include:

• Article 8: Protects the right to respect for private and family life, home, and correspondence.
• Article 12: Ensures the right to marry and found a family.
• Article 14: Prohibits non-discrimination in the enjoyment of rights and freedoms set forth in the Convention.
• Article 9: Guarantees the right to freedom of thought, conscience, and religion.
• Article 1 of the First Protocol (A1P1): Protects the peaceful enjoyment of possessions.

"Manifestly Without Reasonable Foundation" Test

This legal standard assesses whether legislative measures that interfere with ECHR rights are justified. For a measure to pass this test, it must pursue a legitimate aim, be rationally connected to that aim, use proportionate means, and not be excessively impairing in relation to the intended objective.

Dualist Approach to International Law

The UK follows a dualist system where international treaties are not part of domestic law unless explicitly incorporated through legislation. This means that treaties like the UNCRC do not have direct effect in UK courts unless they are enacted into domestic law.

Indirect Discrimination

Indirect discrimination occurs when a seemingly neutral provision, criterion, or practice puts individuals sharing a protected characteristic at a particular disadvantage compared to others. In this case, the two child provision was argued to indirectly discriminate against women, as single-parent (mainly female-led) households might be disproportionately affected.

Conclusion

The High Court's decision in SC & Ors v Secretary of State for Work and Pensions & Or upholds the legality of the two child provision within the UK's welfare system, reaffirming the government's discretion in designing socio-economic policies. By meticulously analyzing the alignment of the provision with ECHR articles and dismissing the challenges based on indirect discrimination and the interpretation of international conventions, the judgment reinforces the principle that legislative bodies are entrusted with balancing economic sustainability and social welfare.

This case serves as a critical reference point for future challenges to welfare reforms, emphasizing the judiciary's role in maintaining the proportionality and legitimacy of legislative measures aimed at achieving broader economic and social objectives. It also delineates the boundaries of international treaty influence within domestic law, highlighting the necessity for clear legislative incorporation to impact human rights jurisprudence.

Ultimately, the judgment underscores the pivotal role of Parliament in shaping welfare policies that reflect societal values and economic realities, within the overarching framework of human rights obligations.