How should courts adjudicate claims for status equality in the realm of fiscal policy?

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Discrimination Law and Benefit Reform

Meghan Campbell, University of Birmingham.                
ORCID ID icon 0000-0002-5151-6248

The austerity motivated reforms have had a devastating and disproportionate impact on vulnerable groups across the UK. Under the new system, Universal Credit, the amount of social benefits that claimants can receive is capped. Claimants can escape the cap if they undertake a certain amount of work in the paid labour force. There have also been restrictions placed on specific types of benefits. The child tax credit, a benefit designed to meet the subsistence needs of each child, is no longer available for a woman’s third or subsequent children (the “two-child limit”). Women, particularly lone mothers are challenging these regulations in court. In a series of cases, lone mothers have unsuccessfully argued that the benefit cap, the work conditionalities and the two-child limit have perpetuated discrimination against them. How should courts adjudicate claims for status equality in the realm of fiscal policy?

Posing this question opens two lines of inquiry. The first explores whether legal equality guarantees can fully account for the nature of inequality. Equality has been and continues to be conceptualised in a fragmented manner as between economic equalities, claims for material goods and status equalities, claims for dignity or respect. The lone mothers’ claims strike at the assumptions that equality can be neatly segmented. Their cases bring together intersecting status vulnerabilities—gender and reproductive care—with economic vulnerabilities—income poverty—and provide an opportunity to evaluate whether the legal framework can grapple with multifaceted inequalities. It is argued that the UK Supreme Court and Court of Appeal myopically analyse the claims through the lens of one type of inequality: economic. Because the discriminatory impacts of the reforms are solely reduced to income poverty, the courts regard them as primarily a matter for policymakers, attracting judicial deference and only light touch review. The courts are inattentive to the intersection of status identity characteristics with income poverty in the reforms. There is no meaningful engagement with women’s antecedent disadvantage in unpaid care work; the stigmas against lone mothers in poverty. Nor is any attention paid to the erasure of women in poverty’s voices in political discourse; the gendered structures of the labour market or how the benefit reforms continue to devalue care work. This article demonstrates that a robust substantive equality framework can identify, with a high degree of precision, how economic and status inequalities interact to create and perpetuate disadvantage.

The second line of inquiry investigates how the justification stage of the discrimination analysis should be applied in the context of claims for status equality that touch upon economic policy. The inattention to the connection between different forms of inequality has distortive effect when evaluating whether the benefit reforms are justified. All of the judgments agree that reforms are prima facie discriminatory on the basis of income poverty. However, while the Court of Appeal and a majority of the UKSC conclude that the discrimination is justified, the dissenting minority in the UKSC concludes the opposite. It is the legal test for justification which is the source of disagreement. Because they regard the benefit reforms as an issue of economic policy, the majority advocates using a highly deferential test. Only if it is ‘manifestly without reasonable foundation’ (MWRF) should the justification for the discriminatory benefit reforms be rejected. This is a weak foundation for a light-touch justification analysis as the benefit reforms cannot be exclusively collapsed into income inequality. The dissenting minority, on the other hand, adopts proportionality, the “tried and tested” tool for justification in the context of anti-discrimination law. A greater appreciation for the entwined gendered status and economic inequalities perpetuated by the reforms, provides greater support for adopting a more searching justification analysis via the proportionality test. It is argued here that, attention to substantive equality in evaluating the justifications offered by the government for burdening vulnerable groups through fiscal policies, courts will be in a position to properly protect the rights to equality of those who are rendered invisible by the current deferent judicial approach.

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