DA and RA v the United Kingdom: (a return to?) maximum deference in socio-economic matters

By Lewis Graham and Marion Sandner

Introduction

When determining whether an interference with a Convention right relating to socio-economic matters has been justified by a state, the European Court of Human Rights usually  asks whether the measure in question is said to be ‘manifestly without reasonable foundation’.

This test has a long lineage – it was first applied in a case handed down in 1986 – and it is tolerably clear how the test has been applied in practice: if applicable, it stacks the proportionality scales in favour of the state, and demands that applicants demonstrate a particularly significant intrusion into rights in order to show that an interference is not just ‘disproportionate’ but ’manifestly without reasonable foundation’.

What is less clear are the exact circumstances under which the test applies. In other words, it has not always been obvious when an ‘ordinary’ proportionality assessment is applicable, and when the significantly more deferential ‘manifestly without reasonable foundation’ test should be applied instead. In an important judgment of 2019 (JD and A v United Kingdom) the First Section of the Court attempted to provide definitive guidance as to the application of this test in discrimination cases. However, seven years later, the Second Section of the Court has handed down a judgment which calls into question much of this earlier statement. The case is DA and RA v the United Kingdom.

The Facts and the Court’s assessment

The facts of DA and RA are simple. The applicants challenged the Convention-compatibility of the UK government’s policy to impose a limit on the amount of welfare benefits a given household may claim in a given year (the so-called ‘benefit cap’). The two applicants, a mother and child, argued that the policy had a disproportionate impact on them, as the cap affected single parents with children under the age of two in a particularly harsh way due to the unavailability of free childcare). They relied on Article 8 and Article 1 of Protocol 1 of the Convention, read with Article 14.

The Court went through the requirements of Article 14, and found: that the case fell within the ’ambit’ of both Convention rights; that the state failed to treat the applicants differently while their situation was relevantly different to that of others; and that this difference in treatment was based on a protected ground. The most pressing question for the Court was whether the discriminatory action – in this case a failure to treat the claimants differently – was justified.

The Court was called upon to determine, in the context of this case, whether it should apply the ‘manifestly without reasonable foundation’ test, which favoured the state, and required more on the part of the applicants in terms of the burden of proof. The government, unsurprisingly, argued that this exceptionally deferential test should apply, and indeed that it was applicable to all cases involving ’state welfare benefits’ (para 80). Insofar as previous cases had indicated otherwise, the government invited the Court to declare them to have been wrongly decided.

Ultimately, the ECtHR held that the ‘manifestly without reasonable foundation’ test did apply on the facts of the case, and that, following from this, the impugned measure was not ’manifestly without reasonable foundation’. It also highlighted that it concerned a matter that falls within the state’s wide margin of appreciation. Accordingly, it found that there had been no violation of Article 14, read in conjunction with Article 1 of Protocol No. 1 and/or Article 8 of the Convention.

JD and A

Before analysing what the Court said in DA and RA, it is important to look back seven years to 2019, to the judgment of the First Section of the Court in JD and A v the United Kingdom. That case considered the discriminatory effect of the UK’s so-called ‘bedroom tax’ (a cap on housing benefits in cases of perceived under-occupation of social housing). On the ‘manifestly without reasonable foundation’ test, the Court confirmed, at para 87, that the test has traditionally been applied ‘in the context of Article 1 of Protocol 1 alone’ but that it has also, in more limited circumstances, applied it to discrimination claims under Article 14. However, and importantly, the Court said this at para 88:

‘The Court has limited its acceptance to respect the legislature’s policy choice as not “manifestly without reasonable foundation” to 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.’

So, the Court confirmed, in the Article 14 context, the ‘manifestly without reasonable foundation’ test should be applied exclusively in cases challenging a ‘transitional measure’, and is not generally applicable in cases involving state welfare benefits. The Court therefore disagreed with the views offered by a number of UK judges, who had suggested that the test had a wider, more general application in welfare cases: see Lord Toulson in MA (UKSC) at para 32] and Lord Wilson in DA (UKSC) at para 65. 

The UK Supreme Court responds

The UK Supreme Court had an opportunity to respond to the JD and A judgment two years later, in the case of SC. The Court warned that seeking ‘a precise definition’ of the ‘manifestly without reasonable foundation’ standard was a distraction from the real issue, which is to answer the question of ‘whether a wide margin of judgment is appropriate in the light of the circumstances of the case’ (para 161). This ‘nuanced approach’ (para 142) is to be preferred to a ‘mechanical approach’ (para 142).

Nevertheless, the Court did not discard the ‘manifestly without reasonable foundation’ standard as a whole. The Court said that it must ‘scrutinise the reasoning [of JD and A] with care, notwithstanding the great respect which it has for the European court’ (at para 134). In express disagreement with paragraph 88 of JD and A (see above), the Court said that the ‘manifestly without reasonable foundation’ test has a role ‘in many cases not concerned with transitional measures’ (at para 135) and that it was therefore ‘not persuaded… that the “manifestly without reasonable foundation” formulation can never have any part to play… outside the context of transitional measures’ (at para 157). To hold otherwise, and to apply paragraph 88 straightforwardly, would represent ’a significant modification of a substantial body of case law’ (at para 137).

It was confirmed, then, that in the view of the Supreme Court, notwithstanding the above passages in JD and A, the ‘manifestly without reasonable foundation’ test remains ‘generally appropriate in the field of welfare benefits’ (para 139 and see also to a similar effect para 151).

Back to DA and RA

Returning now to the DA and RA case, we find that the Second Section adopts, at para 91, language which is very similar to that which it set out in paragraph 88 of JA and A:

‘the Court has usually limited its acceptance to respect the legislature’s policy choice as not “manifestly without reasonable foundation” to 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’

Of note, however, is the use of the word ‘usually’, which is missing from the JD and A formulation. As such, the ‘manifestly without reasonable foundation’ test is not exclusively applicable to transitional measures – it is only usually applicable to them. We see this again at para 105:

‘the Court’s application of the “manifestly without reasonable foundation” standard in the context of Article 14 read with Article 1 of Protocol No. 1 has usually been limited to circumstances where an alleged difference in treatment resulted from a corrective transitional measure’

Again, the test is usually, rather than exclusively, applied to transitional measures. There is already, then, a gap between what the court said in JD and A and what it said seven years later in DA and RA. The clear implication is that the ‘manifestly without reasonable foundation’ test can be applied to welfare cases in general. This is confirmed at para 108:

‘the Court considers that the “manifestly without reasonable foundation” standard may be applied outside the context of corrective transitional measures’

Crucially, however, the Court adds the following qualifier. The ’manifestly without reasonable foundation’ test can only be employed

‘where the respondent State is not required to show “very weighty reasons” to justify a difference in treatment or failure to treat differently’

In other words, whilst the ‘manifestly without reasonable foundation’ test is no longer exclusively applicable to transitional measures, and is instead applicable in welfare cases more generally, it is not appropriate to apply it in cases involving suspect grounds, where ‘very weighty reasons’ are required (see para 107). Therefore whilst there is much agreement between the Strasbourg Court in DA and RA and the UK Supreme Court in SC, this is one crucial difference. It is not true, as the Supreme Court suggested, that the ‘manifestly without reasonable foundation’ test can apply ‘even in relation to differences of treatment on “suspect” grounds’ ([157]).

Placing the case within the broader context of the ECtHR’s retrogression case law, and further reflections

One wonders where exactly the Court draws the line as to when weighty reasons are required in the realm of discrimination claims and when they are not, as it has not consistently applied the suspect grounds threshold. Clearly, in the present case, the Court acknowledged the disproportionate impact of the contested measure on single parents of children under the age of two and, indirectly, on their children (paras 98, 100). It even made express reference to the principle of the best interests of the child (para 110), which was then, however, turned on its head, when restating the government’s argument that

‘it was in the best interests of children overall to have parents in work and that work remained the surest route out of poverty, noting in addition that reducing spending on welfare would allow the Government to protect expenditure on education, childcare and health, which would in turn have a positive impact on children and their best interests’ (para 112).

Overall, the Court failed to substantively balance this proven, adverse impact on certain groups against the government’s stated aim, thereby collapsing its assessment into a superficial quasi-rationality review without any consideration of possible alternative avenues etc – the key deficiency of its ‘manifestly without reasonable foundation’ test. It reverted to maximal deference, relying on the democratic decision-making process and considerable parliamentary scrutiny at the domestic level (para 109), without substantively engaging with the detrimental impact on certain groups.

What is more, the Court simply recounted the stated aim put forward by the UK government despite its known marginal effectiveness in terms of incentivising work and achieving financial savings – the government’s stated aims (para 76, 81, 111).

This approach is not surprising, as the Court has adopted the same, highly deferential approach in earlier cases relating to the withdrawal of previously granted services, entitlements or budgets in the socio-economic realm (‘retrogression cases’) with significant budgetary implications, notably in the context of an economic or financial crisis. For example, in its paradigmatic inadmissibility decision in Koufaki and Adedy v Greece, the Court put the evidentiary threshold for the applicants at a particularly high level, asking them to prove that their situation had worsened to the extent that they risked falling below the subsistence threshold due to the contested measure (Koufaki and Adedy, para 46). The decision stopped short of assessing whether alternatives, let alone less restrictive ones, would have been available to the legislature (para 48). This established approach to retrogression cases is concerning, for it attaches very little weight to the actual infringement to Convention rights, that is, to the harm suffered by the applicants. (See a related critique of the Court’s approach to retrogression cases on this blog here.)

The Court’s approach to retrogression cases is clearly at odds with the assessment frameworks developed by other international bodies to evaluate such measures. The UN Committee on Economic, Social and Cultural Rights (CESCR), for one, has spelled out that retrogressive measures must be (amongst other criteria) temporary, not discriminatory, must uphold the minimum essential levels of rights enjoyment, be strictly necessary and be reviewed on an ongoing basis (e.g., here and here). It has also set out that ‘the State must demonstrate that the decision was based on the most thorough consideration possible and was justified in respect of all the rights under the Covenant and that all available resources were used’ (Ben Djazia and Bellili v Spain, para 17.6). Generally, we note that other international oversight bodies tend to scrutinise retrogressive measures particularly rigorously, even when the budgetary implications may be significant (see CESCR, Inter-American Court of Human Rights, European Committee of Social Rights).

On a positive note, it is worth drawing attention to some exceptions in the ECtHR’s retrogression jurisprudence in cases of a less structural nature. In Diaconeasa v Romania (discussed on this blog here), for example, it treated the contested retrogressive measure (the withdrawal of previously granted State support) as an interference with the applicant’s existing entitlement under Article 8, giving rise to strict proportionality review. One reason for the significantly greater deference shown in other cases may be that such cases concerned (austerity) measures taken in response to a larger financial crisis, therefore affecting more profoundly and structurally the state’s budgetary decision-making, in which the Court is not willing to interfere. Nevertheless, no explicit reference to these concerns appears in DA and RA.

Conclusion

In sum, DA and RA provides another stark example of the ECtHR’s excessive deference, on the basis of the (now-revived?) ‘manifestly without reasonable foundation’ standard, thereby eschewing a substantive engagement with claims relating to socio-economic matters. This, together with the confusing twists of the applicability of the ‘manifestly without reasonable foundation’ standard, as determined by the Court, risks widening further the accountability lacuna in indirect discrimination cases with implications for governments’ budgetary or socio-economic decision-making.

The Court would do well to take the effect on the applicants’ rights as the starting point in its enquiry and to thoroughly weigh up the competing interests at stake, including the necessity of harmful measures, rather than confining itself to reviewing the simple rationality of the government’s justification. In the case at hand, this would have meant that the Court substantively assesses the harm suffered by the applicant and undertakes a thorough proportionality review. It seems quite unlikely that such an assessment would have led to the same conclusion. Yet, irrespective of the outcome, engaging substantively with the infringement of the right would at least send a clear signal that the applicants and their experience of harm were being taken seriously.