LMN & Anor, R (On the Application Of) v Secretary of State for Work and Pensions

Factual and Procedural Background

This appeal arises from judicial review claims by two appellants challenging the operation of exceptions to the statutory two-child limit on the child element of universal credit in the Universal Credit Regulations 2013 ("the 2013 Regulations"). Both appellants are women who endured sustained physical, sexual and psychological violence by former partners and had children conceived non-consensually. Appellant 1 had two children conceived non-consensually and subsequently had two further children conceived consensually; due to an administrative error she was briefly paid for a third child but the payment was corrected and she was not entitled to the child element for the third and fourth children. Appellant 2 had a complex series of relationships, children taken into local authority care and later returned; she had a youngest child whose non-consensual conception was not initially recognised and only became the subject of an exception from the date of disclosure (not retrospectively).

Both brought judicial review claims contending that the regulations that grant exceptions to certain groups (adoptive parents and non-parental carers, and for third or subsequent children conceived non-consensually) but operate in the appellants' circumstances in a different way, involve unlawful discrimination contrary to Article 14 of the European Convention on Human Rights read with Article 8 and/or Article 1 of Protocol 1. The High Court (Judge Collins Rice) dismissed the claims. The appellants appealed to the Court of Appeal. The Court of Appeal heard the appeal and delivered judgment.

Legal Issues Presented

1. Whether the operation of regulations 24A–24B and Schedule 12 to the Universal Credit Regulations 2013 involved discrimination contrary to Article 14 of the Convention read with Article 8 and/or Article 1 of the First Protocol.
2. Whether the judge below abdicated her duty to conduct a proper proportionality assessment.
3. Whether the judge erred by treating aspects of the claim as engaging family-law principles concerning parental responsibility and treating that as a material factor in justification.

Arguments of the Parties

Appellants' Arguments

• Attorney Monaghan submitted the differential treatment between adoptive/non-parental carers and mothers of non-consensually conceived children was unjustified discrimination, disproportionately affecting women (sex as a suspect ground), and lacked very weighty reasons to justify it.
• It was submitted that mothers who already had two non-consensually conceived children who then have a further consensual child are treated the same as mothers who had chosen to have children, which was unjustified.
• It was argued the judge failed to perform an adequate proportionality assessment and improperly relied on policy considerations and family-law concerns to refuse relief.

Respondent's Arguments

• Attorney Ward submitted the exceptions pursued legitimate aims consistent with the objectives accepted by the Supreme Court when upholding the primary legislation: protecting public finances and limiting incentives to increase family size financed by the state.
• The adoptive and non-parental carer exceptions prevent discouraging people from assuming care for children who would otherwise become state responsibilities; the NCC (non-consensual conception) exception protects those who had no choice at conception.
• The differential treatment was a narrow and proportionate choice by the legislature and secondary legislation; substantial deference should be accorded to Parliament and the executive.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court (Judge Lewis, with Judges Andrews and Cobb agreeing) undertook a fresh proportionality assessment. The Court analysed the claim in four stages customary to Article 14 challenges: (1) whether the complaint falls within the ambit of another Convention right (the Court accepted Article 8 and probably Article 1 of Protocol 1 applied); (2) whether the claimant was treated less favourably than others in an analogous situation (the Court expressed doubts but proceeded on the assumption of material analogy for the purposes of justification); (3) whether the difference in treatment is based on a status (the Court accepted the status: being a mother of non-consensually conceived children); and (4) whether the difference in treatment is objectively justifiable (the decisive issue).

On justification the Court addressed the exceptions separately. For adoptive parents and non-parental carers the Court concluded the exception pursues the legitimate aim of avoiding a disincentive to those assuming responsibility for children (thereby avoiding state care costs), is rationally connected to that aim, no less intrusive measure was apparent, and the exception is proportionate. For the NCC exception the Court accepted it is legitimate to exempt mothers who had no choice at the time of conception; the critical comparator is the state of affairs at the time of the third (or subsequent) conception. The Court distinguished the appellants' situations (who later had consensual children after earlier NCC children) from the protected case (a third child conceived non-consensually) and held that very weighty reasons justified limiting the exceptions as Parliament had done. The Court also considered the constitutional context and the degree of deference owed to Parliament and the executive on social and economic policy, but concluded that, applying the four-stage proportionality test and having conducted an independent assessment, the contested provisions are proportionate and justified.

The Court also rejected the appellants' contention that the judge below abdicated her duty to assess proportionality and that she improperly relied on family-law principles: on a fair reading the judge had conducted a proportionality assessment and the references to parental responsibility were a permissible strand of reasoning.

Holding and Implications

DISMISSED. The Court of Appeal dismissed the appeal.

Implications: The Court held that regulations 24A–24B and Schedule 12 to the Universal Credit Regulations 2013, as applied in the cases before the court, are compatible with Article 14 of the Convention read with Article 8 (and, if applicable, Article 1 of the First Protocol). The direct effect is that the High Court dismissal is upheld and the statutory scheme and its exceptions remain lawfully operative in the form challenged. The Court carried out a fresh proportionality assessment and rejected grounds 2 and 3 alleging errors by the judge below. The opinion does not purport to displace the Supreme Court's earlier conclusion about the primary legislation and does not order any retrospective alteration of benefit payments in the cases described.