Court of Appeal: Singh, Rose and Arnold LJJ, [2020] EWCA Civ 618, 12 May 2020

Note that the decision in R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21; [2019] 1 WLR 3289 is no longer good law as a result of the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2021] 3 WLR 428 (see later post).

The standard of justification in Article 14 cases concerning welfare benefits has been fixed by the Supreme Court as being the “manifestly without reasonable foundation” (MWRF) test. Attempts to unseat this on the basis that it is inconsistent with the approach of the ECHR where protected characteristics such as sex or disability are concerned (see eg R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58, [2016] 1 WLR 4550) have failed, even the perennially courteous Lord Wilson insisting in R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21; [2019] 1 WLR 3289 that, as regards welfare benefits, “the sole question is whether it is manifestly without reasonable foundation. Let there be no future doubt about it.” This approach may fall to be revisited in light of the ECtHR decision in JD & A v United Kingdom (Applications nos. 32949/17 and 34614/17) [2020] HLR 5, in which that Court confirmed that the MWRF applies to discrimination challenged under Article 14 and A1P1 only in “circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality” (such as in Stec v UK (Applications nos. 65731/01 and 65900/01)(2006) 43 EHRR 47). Meanwhile, the decision of the Court of Appeal in TD indicates that even the MWRF test is capable of being breached. Continue reading →