Ghulam & Ors, R (on the application of) v Secretary of State for the Home Department & Anor [2016] EWHC 2639 (Admin)

"Human dignity is inviolable. It must be respected and protected."

"149 (1) A public authority must, in the exercise of its functions, have due regard to the need to- (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1). (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to- (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. …………… (7) The relevant protected characteristics are- age; disability; gender reassignment; pregnancy and maternity; race; religion or belief sex; sexual orientation." religion or belief sexual orientation."

“55 (1) The Secretary of State must make arrangements for ensuring that— (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and (b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need. (2) The functions referred to in subsection (1) are— (a) any function of the Secretary of State in relation to immigration, asylum or nationality…”

“It is the duty of Government and of society as a whole to keep children safe”

“9. Essential living needs (1) The matter mentioned in paragraph (2) is prescribed for the purposes of subsection (7)(b) of section 95 of the Act as a matter to which the Secretary of State may not have regard in determining for the purposes of that section whether a person’s essential living needs (other than accommodation) are met. (2) That matter is his personal preference as to clothing (but this shall not be taken to prevent the Secretary of State from taking into account his individual circumstances as regards clothing). (3) None of the items and expenses mentioned in paragraph (4) is to be treated as being an essential living need of a person for the purposes of Part VI of the Act. (4) Those items and expenses are– (a) the cost of faxes; (b) computers and the cost of computer facilities; (c) the cost of photocopying; (d) travel expenses, except the expense mentioned in paragraph (5); (e) toys and other recreational items; (f) entertainment expenses. (5) The expense excepted from paragraph (4)(d) is the expense of an initial journey from a place in the United Kingdom to accommodation provided by way of asylum support or (where accommodation is not so provided) to an address in the United Kingdom which has been notified to the Secretary of State as the address where the person intends to live. (6) Paragraph (3) shall not be taken to affect the question whether any item or expense not mentioned in paragraph (4) or (5) is, or is not, an essential living need…”

“The justification for setting the adult rates at 70% of Income Support was that (1) asylum seekers were provided with furnished and equipped accommodation with all utility bills paid and (2) asylum support was intended to be a measure of last resort provided on a short-term basis. This involved adopting two different rates for single adults, one for those aged 18 to 24 and a higher rate for those aged 25 and over, because such a differentiation was (and still is) drawn in Income Support rates.”

“(2) As a general rule, asylum support in respect of the essential living needs of that person may be expected to be provided weekly in the form of a cash payment of £36.95.”

“10A Additional support for pregnant women and children under 3 (1) In addition to the cash support which the Secretary of State may be expected to provide weekly as described in regulation 10(2), in the case of any pregnant woman or child aged under 3 for whom the Secretary of State has decided asylum support should be provided, there shall, as a general rule, be added to the cash support for any week the amount shown in the second column of the following table opposite the entry in the first column which for the time being describes that person. TABLE Pregnant woman £3.00 Child aged under 1 £5.00 Child aged at least 1 and under 3 £3.00”

“Article 8 Right to respect for private and family life 1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 14 Prohibition of discrimination The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

“Article 2 1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Article 22 1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. Article 24 1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. Article 26 1. States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law. Article 27 1. States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. Article 31 1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts. 2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.”

“I Introduction A The best interests of the child: a right, a principle and a rule of procedure 4 The concept of the child's best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child. 6 The Committee underlines that the child's best interests is a threefold concept: (a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court. (b) A fundamental, interpretative legal principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework for interpretation. (c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases. IV. Legal analysis and links with the general principles of the Convention A. Legal analysis of article 3, paragraph 1 1. “In all actions concerning children” (b) “concerning” 19 The legal duty applies to all decisions and actions that directly or indirectly affect children. Thus, the term “concerning” refers first of all, to measures and decisions directly concerning a child, children as a group or children in general, and secondly, to other measures that have an effect on an individual child, children as a group or children in general, even if they are not the direct targets of the measure. 20 Indeed, all actions taken by a State affect children in one way or another. This does not mean that every action taken by the State needs to incorporate a full and formal process of assessing and determining the best interests of the child. However, where a decision will have a major impact on a child or children, a greater level of protection and detailed procedures to consider their best interests is appropriate. 2. “By public or private social welfare institutions, courts of law, administrative authorities or legislative bodies” (d) “legislative bodies” 31. The extension of States parties’ obligation to their “legislative bodies” shows clearly that article 3, paragraph 1, relates to children in general, not only to children as individuals. The adoption of any law or regulation as well as collective agreements – such as bilateral or multilateral trade or peace treaties which affect children – should be governed by the best interests of the child. The right of the child to have his or her best interests assessed and taken as a primary consideration should be explicitly included in all relevant legislation, not only in laws that specifically concern children. This obligation extends also to the approval of budgets, the preparation and development of which require the adoption of a best-interests-of-the-child perspective for it to be child-rights sensitive. V. Implementation: assessing and determining the child’s best interests B. Procedural safeguards to guarantee the implementation of the child’s best interests (h) Child-rights impact assessment (CRIA) 99. As mentioned above, the adoption of all measures of implementation should also follow a procedure that ensures that the child’s best interests are a primary consideration. The child-rights impact assessment (CRIA) can predict the impact of any proposed policy, legislation, regulation, budget or other administrative decision which affect children and the enjoyment of their rights and should complement ongoing monitoring and evaluation of the impact of measures on children’s rights. CRIA needs to be built into Government processes at all levels and as early as possible in the development of policy and other general measures in order to ensure good governance for children’s rights. Different methodologies and practices may be developed when undertaking CRIA. At a minimum, they must use the Convention and its Optional Protocols as a framework, in particular ensuring that the assessments are underpinned by the general principles and have special regard for the differentiated impact of the measure(s) under consideration on children. The impact assessment itself could be based on input from children, civil society and experts, as well as from relevant Government departments, academic research and experiences documented in the country or elsewhere. The analysis should result in recommendations for amendments, alternatives and improvements and be made publicly available.”

“Preamble The States Parties to the present Convention, (j) Recognizing the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support, (o) Considering that persons with disabilities should have the opportunity to be actively involved in decision-making processes about policies and programmes, including those directly concerning them, (r) Recognizing that children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child, Have agreed as follows: Article 2 - Definitions "Discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation; Article 4 - General obligations 1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake: (e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; (h) To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities; Article 5 - Equality and non-discrimination 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. Article 7 - Children with disabilities 1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children.2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.”

“The impacts on the claimant and her children of the 25% reduction in their weekly income are stark [in other words the effect of the 2015 Decision]. The claimant struggles on a daily basis, and often fails, to feed and clothe her children properly, to keep them clean, healthy and looking presentable, and to provide them with basic school uniform and equipment. She cannot afford any toys or pleasurable pastimes for them without either missing meals herself or endangering the family’s nutrition yet further. Her 4-year old daughter has developed anaemia through poor diet; the claimant, who has depression and Hepatitis C, has developed various vitamin deficiencies and seen a significant deterioration to her mental health since the reduction. The claimant’s 10-year old son has PTSD and suffers panic attacks as a result of abuse by his father, but the claimant cannot afford the confidence-building activities for him as recommended by CAMHS or other “normal” activities. The picture is of children whose emotional and social development, and even their physical health, is being affected by their level of poverty, with their mother’s resilience ebbing dangerously low.”

“It is worth emphasising at the outset that the question is not what the Court considers to be the appropriate amount to meet the essential living needs of asylum seekers. That judgment does not lie with the unelected judges, but is vested by Parliament in the elected government of the day. The latter's decision can only be challenged on well recognised public law principles.”

“My conclusion, therefore, is that so far as adults are concerned, the Secretary of State is entitled to treat the s. 96(1)(b) cash support as aimed at the able bodied destitute in the way she did. There has not been identified any class of infirm adult asylum seeker whose additional non accommodation related essential living needs could not reasonably be expected to be met by local authorities and whose relevant circumstances would be normal for the group as a whole.”

“Accordingly there is no evidential basis on the current generic challenge for concluding that there are infirm children of asylum seekers whose additional non accommodation related essential living needs are not being met by local authorities and whose circumstances are not to be categorised as exceptional. It follows that the Secretary of State is not required to include them within the normal cohort of asylum seekers and their dependants at which the s. 96(1)(b) cash support is aimed.”

“The Secretary of State has in this respect relied upon a "fact" which is misconceived, and which is of sufficient potential significance to have influenced the outcome. That is itself sufficient to vitiate the decision.”

“It must be remembered that the Secretary of State's evidence was that in previous years the levels had been set at the minimum required to meet essential living needs. Moreover s.95 contains the relevant power as well as the duty. The Secretary of State has power under section 95 to meet only what he or she considers to be essential living needs; any more would be ultra vires. As a matter of logic there is no necessary error in rates being set at what is lower, in real terms, than what was previously regarded as necessary to meet essential needs, because the latitude afforded to the Secretary of State in this value judgment means there is a range within which both figures might fall. But I accept the Claimant's argument that the significant reduction in real terms from what was previously regarded as the bare minimum level necessary to avoid destitution requires justification by a careful investigation if it is to be defended as rational.”

“This approach does not sit very happily with the decision of the Defendant to use CPI as the measure by which to increase rates in 2008/9, 2009/10 and 2010/11. It is in any event flawed. Essential items are subject to inflationary increases just as non-essential items are. There is no logical basis for assuming the inflation rate is lower for essential items. The evidence of Mr Hirsch suggests the contrary. Moreover, the rational response to the fact that there may be different rates of inflation for essential items and non-essential items is to seek to identify what the relevant inflationary rate is, not to assume that it is nil. Nor is there any relevance or logical force in the suggestion that measures of inflation do not reflect an ability to make economies: asylum seekers only have their essential needs provided for, from which they are not in a position to economise.”

“not ‘temporary’ in a sense which justifies any meaningful distinction from the position of those on Income Support”

“That is an important distinction, which was the basis for setting asylum at 70% of the rate for Income Support for adults before the rates became decoupled in 2009. But it affords no rational explanation for the increasing gap between asylum support rates and Income Support rates caused by freezing the former whilst increasing the latter. Accordingly a comparison with Income Support rates is not supportive of a freeze in asylum support rates for either of the two reasons identified.”

“In saying this I should not be understood as suggesting that asylum support rates must be tied to Income Support rates, as the Claimant and other organisations have been seeking to persuade the Government should happen since the decoupling of rates in 2009. There is a different legal criterion for each of the two types of support. Income Support may legitimately provide for a higher standard of living than essential living needs. Income Support can also take into account factors relevant to those who have an established right to remain in the country such as integration, whether by employment or otherwise. But this is not the basis identified in paragraph 51 of Mr Bentley's witness statement for why asylum rates should fall further behind Income Support rates, although the decision letter to the Deputy Prime Minister does refer to "the different statutory framework" (in the context of s4 and s95 rates). The critical point is that if Income Support rates were to provide any useful assistance in setting asylum rates, which the Secretary of State must have thought they did by taking them into account, it was necessary to apply some rational criteria to quantify and justify the discrepancy between the two. Otherwise they could do no more than identify a ceiling for asylum support rates, and could not assist in identifying the correct level below that ceiling at which to fix the rates.”

“Mr Sheldon QC was concerned to emphasise that the ONS data had not been treated as determinative, but merely as one of a number of comparators. That is so, but it appears to have been treated as an important one. It is therefore of importance that the data should have been extracted and applied accurately and without relevant omission.”

“It is not for the Claimant, or me, to set out the exact parameters of the inquiry and investigation which would be sufficient. What the Claimant has established is that the Secretary of State has failed to take reasonable steps to gather sufficient information to enable her to make a rational judgment in setting the asylum support rates for 2013/2014.”

“The Secretary of State must have regard to her duties under s. 55 to safeguard and promote the welfare of all children, which applies as much to 16 and 17 year olds as to under 16s. She may legitimately take into account respects in which older children have different needs from younger children. But the mere fact that they are closer to becoming adults than other children cannot form a rational ground for paying them less than other children, and is inconsistent with the Secretary of State's section 55 duty.”

“In the light of that judgment, the Secretary of State decided to undertake a thoroughgoing review of asylum support rates and to devise a new methodology for determining the appropriate rate. In particular, the Secretary of State considered that it would be appropriate to undertake more detailed research and analysis of the likely weekly expenditure needed by an able-bodied asylum seeker to meet each of the various needs identified as ‘essential’ by Popplewell J.”

“First, it was decided to examine survey data published by the Office of National Statistics (ONS) relating to household expenditure of the lowest 10% income group among the UK population, as it was considered that this remained the best available indicator of the likely amount of money needed to meet most of the various needs identified as essential. This data is taken from the annual Living Costs and Food Survey.”

“It was not considered that all of the activities associated with the maintenance of interpersonal relationships and a minimum level of participation in social, cultural and religious life, would necessarily incur an expense. Asylum seekers are invariably accommodated in urban centres where churches, mosques and other religious establishments are within walking distance. Also, many recreational and cultural activities in these areas are free (for example community centres and museums). The persons therefore generally have the opportunity to maintain interpersonal relationships and a level of participation in social, cultural and religious life without spending money, subject to occasional travel costs and communications costs.”

“The “essential need” in this instance is having the “possibility of accessing the means to communicate” (Article 14(2)(b) of the Directive). There are various ways of doing so, including by telephone (local, international, mobile, landline or SMS), Internet (free access to the internet is available at libraries enabling email, Skype, etc), or by post or fax. The ONS data showed that the lowest 10% of the UK population spend an average of £3.92 per week on communications, but the data gave little information on how this could be used to meet the needs set out above. It was thus decided to base the proportion of the allowance for communication on our own research.”

“The review has focussed on the cash required to cover the needs of the normal able bodied, recognising that separate assistance is available from local authorities for the disabled and that section 96(2) of the 1999 Act allows assistance to be provided in other ways for exceptional cases (e.g. through maternity grants for pregnant asylum seekers). The review has also taken account of the views of stakeholders, most particularly submissions from the “Still Human Still Here” (SHSH) group. Although we have not agreed with the SHSH that the level of cash provided is too low, we are grateful for the constructive dialogue, which we hope to continue when reviewing cash payment levels in future years. There is no perfect way of assessing what level of payment meets essential living needs or any direct domestic or international comparator. Income Support, or similar DWP benefit levels, are not subject to the same statutory test (essential living needs), so have limited value as a comparator. The nearest comparator is survey data published by the Office of National Statistics (ONS) relating to household expenditure of the lowest 10% income group among the UK population. The way that ONS data was used in previous review was criticised by the High Court. We have addressed the points raised by the Court by: ● Verifying from other sources that the levels of ONS expenditure on the particular item reflect the actual cost of meeting the particular need; and ● Making such adjustments as appear necessary to the spending levels in order to reflect the particular circumstances of asylum seekers.”

“Asylum seekers with dependants (family groups) Our review recognised that the needs of children are not always identical to adults and that is possible to envisage some circumstances where meeting the particular need requires greater expenditure of cash than would be required for an adult (e.g. because children need to replace clothes more often as they are growing). Equally, however, some needs essential for adults (e.g. the need to keep in contact with legal advisors or communicate with friends and families overseas) do not apply at all to their children. More importantly, any extra needs particularly to children are comfortably offset by the economies available to a larger household. The ONS data (2012 and 2013) confirms that expenditure on food and other items reduces considerably per head in multi-person households. The United Kingdom’s approach to supporting asylum seeking families is, in fact, different to the approach of other EU states which support large numbers of destitute asylum seekers. Sweden, Germany and France, for example, all use payments systems that take into account the economies of scale available to multi-person households. Taking all of these factors into consideration the review found that the existing payment levels are more than sufficient to meet the essential living needs (the legal test) of all family groups. It will be for a new Government to decide what action, if any, should be taken on the back of that analysis.”

‘The needs of a household grow with each additional member but – due to economies of scale in consumption – not in a proportional way. Needs for housing space, electricity, etc. will not be three times as high for a household with three members than for a single person.’

“128. The 2015 review of the case provided to asylum seekers with children took careful account of these factors. Nothing in the review affected in any way the core support framework relating to asylum seekers with children, in particular the availability of accommodation, access to free healthcare and free schooling. The review was solely concerned with the level of cash needed to cover the ordinary everyday essential living needs of children (and their parents) that were not covered through other aspects of the support framework (and excluding any additional assistance that might need to be provided exceptionally because of the particular circumstances of the individual). 129. In carrying out the 2015 review, the objective was to ensure that sufficient cash was provided to the household as a whole, taking account of the assessed essential needs of the parents and their children (which differ from the their parents to some degree as I have discussed above) and the costs for meeting those needs. In general terms, the review found some needs easier to define and easier to cost than others (for example, those relating to maintaining a healthy diet and an adequate wardrobe of clothes). The package of support available, both before and after the changes to the payment rates, ensures that the children of destitute asylum seekers are provided with stable and safe accommodation and with adequate provision for their ordinary everyday essential needs. I do not consider that the reduction in the amount of cash provided to the parents therefore has an adverse effect on their safety or the quality of the care they receive from their parents or their general health. 130. The team conducting the 2015 review found it more difficult to identify needs relating (in the broadest sense) to the intellectual, emotional, social and behavioural development of children and to put a cash value on the cost of meeting such need. At various parts of her report, Ms Charlesworth indicates that a definition of what is required for the (non-physical) health and development of a child involves a subjective assessment and I agree. Careful regard was nonetheless given to these issues, within the context of consideration of needs relating to travel and communications, both of which addressed social, cultural and educational development factors and their associated costs (as I have set out above). 131. In respect to the UN Convention on the Rights of the Child (UNCRC), the review was conducted on the basis of the need to provide levels of support adequate to cover “essential living needs” (the test in domestic legislation) and the minimum standards provided for in the EU Reception Directive, supplemented by the valuable guidance provided by the Court’s judgment in the Refugee Action case. It was considered that applying that guidance would ensure that the approach would be compatible with the UNCRC.”

“The general approach to the review was to consider the level of cash needed to meet the needs of the able-bodied, in recognition that additional needs, arising from a disability could be met separately”

“Asylum seekers with dependants (Family Groups) Our review recognised that the needs of children are not always identical to adults and that is possible to envisage some circumstances where meeting the particular need requires greater expenditure of cash than would be required for an adult (e.g. because children need to replace clothes more often as they are growing). Equally, however, some needs essential for adults (e.g. the need to keep in contact with legal advisors or communicate with friends and families overseas) do not apply at all to their children. More importantly, any extra needs particular to children are comfortably offset by the economies available to a larger household. The ONS data (2012 and 2013) confirms that expenditure on food and other items reduces considerably per head in multi person households. The United Kingdom’s previous approach to supporting asylum seeking families was, in fact, different to the approach of other EU states which support large numbers of destitute asylum seekers. Sweden, Germany and France, for example, all use payments systems that take into account the economies of scale available to multi-person households. Taking all of these factors into consideration the review found that the existing payment levels to all families exceed the amounts necessary to cover their essential living needs. In light of these findings the Government has decided they should be reduced. A payment system that provides a single payment rate of £36.95 for every supported person simplifies the support system and ensures all families, no matter their size and composition, receive sufficient cash to cover their essential needs.”

“Age The needs of children are not identical to adults and they may in some instances require extra expenditure on certain items. Children, for example, may need to replace clothes more often as they are growing. Babies also require nappies and formula milk, if they are not breastfed. But equally, some needs essential for adult asylum seekers (e.g. the need to keep in contact with legal advisors) do not apply to their children. Also, children do not in general consume more food than adults. Overall, the evidence considered shows that any extra needs specific to children are offset by the economies available to a larger household. This is supported by analysis on the ONS data available which shows that expenditure on the relevant essential items by family groups (of all sizes) is considerably lower than the cash payments currently made available to asylum seeking families. For those reasons, the review has shown that the current rates exceed what is necessary to meet the essential living needs of asylum seekers with children and there is scope to reduce the payment levels provided to them. There are many ways to do this, but the option selected is to simply provide a sum of £36.95 per week for every supported person (whether as an asylum seeker of as a dependant of an asylum seeker). Our review methodology (described above) has shown that the resulting payment rates, which continue to depend on the size of the household, will be sufficient to meet the needs of all persons of all ages. There are no plans to change the arrangements set out above in respect of the extra payments made for children aged 3 years and under. Disability The review, as with the 2014 review, has focussed on the needs of the able-bodied. Those with a disability or care need may receive additional support from local authorities (under the National Assistance Act 1984 or the Children Act 1989) or, in some cases, to be catered for by adaptations to their accommodation. These arrangements are subject to separate policy considerations and outside the scope of this review. Sex / Gender The essential needs of asylum seekers are unlikely to vary significantly for reasons related to their gender. In assessing the amount of money needed to cover clothing needs the evidence suggests that female garment items are slightly more costly than male items. The cost of female garments has therefore [been] used to assess the level of expenditure needed for essential clothing. Separate provision is available to accommodate persons in same sex housing where they have been victims of sexual violence or Domestic Abuse.”

“The self-esteem of children is obviously important, but parents on low incomes are capable of helping their children to present a physical appearance and dress sense that they are comfortable with and that does not require spending significant money, if any. No doubt that sometimes requires the management of their children’s expectations, but this is a predicament likely to be common to all families on low incomes. Again, in these proceedings the issue is the essential living needs of children (as judged by the Secretary of State) and the floor set by the EU Reception Directive.”

“36 With regard, secondly, to the amount of the financial allowances granted, it is apparent from the second subparagraph of Article 13(5) of Directive 2003/9 that, where Member States provide material reception conditions in the form of financial allowances or vouchers, the amount thereof is to be determined in accordance with the principles set out in that article. 37 In that regard, it follows from Article 13(2) of that directive that the amount of the financial aid granted must be sufficient to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence. 38 Furthermore, it must be noted that, under Article 2(j) of Directive 2003/9, ‘material reception conditions’ is to be understood as meaning the reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance. 39 Moreover, it is apparent from recital 7 in the preamble to that directive that the directive seeks to lay down minimum standards for the reception of asylum seekers that will normally suffice to ensure them a dignified standard of living and comparable living conditions in all Member States. 40 It follows therefrom that, although the amount of the financial aid granted is to be determined by each Member State, it must be sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring their subsistence.”

“49 Given that the Member States have a certain margin of discretion as regards the methods by which they provide the material reception conditions, they may thus make payment of the financial allowances using the bodies which form part of the general public assistance system as intermediary, provided that those bodies ensure that the minimum standards laid down in that directive as regards the asylum seekers are met. 50 In that regard, it must be pointed out that it is for the Member States to ensure that those bodies meet the minimum standards for the reception of asylum seekers, saturation of the reception networks not being a justification for any derogation from meeting those standards.”

“The Secretary of State was under a duty to carry out an inquiry which was sufficient to enable her to make an informed and rational judgment of how much was necessary to meet the essential living needs of asylum seekers. This reflects the second element of Lord Diplock's formulation in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1975] AC 1014, 1065B: ‘Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?’” ‘Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?’”

“The Claimant submits that the Secretary of State's view that the need is only for such clothing as will "avoid danger of illness" misunderstands the essential purpose of clothing which is to keep a person warm, dry, decently covered and clean, and that such an error is bound to lead to an underestimate of the essential clothing need. This may be an unduly semantic criticism of what was intended as a reference to clothing to keep a person clean and warm enough. But even taken on its own terms, I am unable to accept the Claimant's argument. Here, as elsewhere, there are value judgements at play, for example in the adjective "warm". If a person's clothing is sufficient to keep him warm enough to avoid any danger of illness, it may legitimately be considered as meeting the essential need in that respect, even if it leaves the person at times colder than the majority of us would choose for comfort. If the clothing is sufficient to avoid any danger of illness, its deficiencies, as to warmth or hygiene, are no more than a matter of comfort rather than health, and harsh though it might appear to some, perhaps to most, it is within the legitimate range of views of the Secretary of State to treat that as falling outside the concept of essential needs. Ms Rose QC submitted that being clothed to a standard which left the person cold or their clothes dirty was inconsistent with the Reception Directive requiring as a minimum a dignified standard of living. But "cold" and "dirty" are relative terms. Mr Sheldon QC accepted that washing powder was an essential living need, so that a minimum standard of cleanliness is catered for. If there is no risk of danger to health, a person who is cold and whose clothes are not pristine is not in my view being denied a standard of living in breach of Article 1 of the Charter. Whether they have a need for greater warmth and cleanliness which is essential is a matter within the value judgment to be made by the Secretary of State, not the Court.”

“It will be noted, however, that the classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator. They ask whether "differences in otherwise similar situations justify a different treatment."”

“With those considerations in mind, I turn to the issue of justification. It is now well-established in a series of cases at this level, beginning with Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, and continuing with R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45, [2012] 1 AC 621, and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700, that the test for justification is fourfold: (i) does the measure have an legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?”

“65 Secondly, there is no analogy between asylum seekers and British citizens in need of social assistance. In the case of asylum seekers it is not known whether they have any entitlement to be in this country. Therefore they all receive support under an asylum support scheme, which complies with the obligations imposed by the Geneva Convention and the Reception Directive. British citizens in need of social assistance are in a different position and they receive mainstream benefits. 66 Thirdly, in this case (as in R (Carson) v Secretary of State for Work and Pensions[2005] UKHL 37; [2006] 1 AC 173) there is an objective justification for the different treatment of the two groups to which the appellant points. The two groups are asylum seekers and British citizens in need of social assistance. Asylum seekers are a large group of people, an unknown proportion of whom have no entitlement to be here. Their entitlement to welfare support derives from international instruments, which do not apply to British citizens. In this sphere it is for the legislature and the executive to determine how national resources should be allocated.”

“If the rights in question are the A1P1 property rights of women, and their associated derivative right not to be discriminated against in relation to those rights, it is an impermissible step further to say that there is any interpretation of those rights which article 3 UNCRC can inform. In the case of article 8, the children's interests are part of the substantive right of the parent which is protected, namely respect for her family life. In the case of A1P1 coupled with article 14, the children's interests may well be affected (as here), but they are not part of the woman's substantive right which is protected, namely the right to be free from discrimination in relation to her property. There is no question of interpreting that article 14 right by reference to the children's interests. The protected right to respect for family life under article 8 is entirely different from the protected right to property under A1P1. Nor can the article 8 rights of the child be said to be in need of interpretation when it is clear for the reasons given in all the judgments that they are not infringed. The necessary connection between the ECHR right under consideration and the international instrument is not present. That can be seen by considering the position of the appropriate comparator, namely a lone non-working father with the same children and household outgoings. The interests of the children would be exactly the same in his case, but he would have no article 14 claim to discrimination.”

“The decision of the majority in the SG case was not that international conventions were irrelevant to the interpretation of article 14 but that the UN Convention on the Rights of the Child was irrelevant to the justification of a difference of treatment visited upon women rather than directly upon children: para 89 (Lord Reed), paras 129-131 (Lord Carnwath) and para 146 (Lord Hughes).”

“The scope of this margin will vary according to the circumstances, the subject matter and the background (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, 16 March 2010). As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of nationality or sex as compatible with the Convention (see respectively Gaygusuz, cited above, § 42; and Van Raalte v. the Netherlands, 21 February 1997, § 39, Reports of Judgments and Decisions 1997 I). On the other hand, a wide margin is usually allowed to the Contracting State under the Convention when it comes to general measures of economic or social strategy (see, for example, James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98, and National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports 1997-VII). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (Stec and Others v. the United Kingdom, [GC],nos. 65731/01 and 65900/01,§ 52, ECHR 2006).”

“As an unincorporated international treaty, the UNCRC is not part of the law of the United Kingdom (nor, it is scarcely necessary to add, are the comments upon it of the UN Committee on the Rights of the Child)."The spirit, if not the precise language", of article 3(1) has been translated into our law in particular contexts through section 11(2) of the Children Act 2004 and section 55 of the Citizenship, Borders and Immigration Act 2009: ZH (Tanzania) v Secretary of State for the Home Department[2011] UKSC 4; [2011] 2 AC 166, para 23.”

“Lady Hale suggests that in the context of education, the test is not whether the justification for discrimination in the provision of state financial support was "manifestly without foundation" but a different and more exacting test. In our opinion, there is no justification for this critical departure from a test which has been consistently endorsed by the Strasbourg court and at the highest level by the courts of the United Kingdom. There is no principled reason why state benefits in the domain of education should be subject to any different test from equally important state benefits in other domains. The problems associated with the judicial scrutiny of criteria for the award of selective benefits are the same. The "manifestly without foundation" test was adopted in Stec notwithstanding that it was a sex discrimination case, a context in which "very weighty reasons" have always been required: see para 52. It has been applied by the Strasbourg court to discrimination in other contexts, including the provision of housing, affecting the applicant's right under article 8 to respect for her private and family life (Bah v United Kingdom (2012) 24 EHRR 21), and the grant of leave to enter the United Kingdom to the spouses of immigrants, again affecting article 8 rights (Hode and Abdi v United Kingdom (2013) 56 EHRR 27). It was applied by this court to basic subsistence benefits in R (SG and others) v Secretary of State for Work and Pensions[2015] 1 WLR 1449, notwithstanding the indirect effect on the welfare of children of the gender discrimination considered in that case: see paras 81-91. The majority has not advanced a single reason in support of abandoning it in the case of state financial support for education except that the words "manifestly without foundation" do not appear in the judgment of the Strasbourg court in Ponomaryov v Bulgaria(2014) 59 EHRR 20, a case in which the nature of the test was not discussed and does not appear to have been in issue. We will return to Ponomaryov below. For our part, we would accept that the more fundamental the right which is affected by discrimination in the provision of financial support, the readier a court may be to find that the reasons for discrimination are "manifestly without foundation". But to discard the test would go well beyond anything that the Strasbourg jurisprudence requires.”

“[Article 3(1) of the UNCRC] is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children. The immigration authorities were at first excused from this duty, because the United Kingdom had entered a general reservation to the UNCRC concerning immigration matters. But that reservation was lifted in 2008 and, as a result, section 55 of the Borders, Citizenship and Immigration Act 2009 now provides that, in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions "are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom".”

“126. As Mr Drabble QC submitted, the cap was a complete innovation in the combined benefits/tax system, which had always contained a mechanism to adjust for family size. The cap has the effect that for the first time some children will lose these benefits, for reasons which have nothing to do with their own needs, but are related solely to the circumstances of their parents. It is difficult to see how this result can be said to be consistent with the best interests of the children concerned, or in particular with the first and seventh principles in Zoumbas. 127. Lord Reed has referred to statements made to Parliament in November 2011 that excluding both child benefit and child tax credit would reduce the savings from the scheme by 80-90%, and so emasculate the scheme. It is not clear whether these are up-to-date estimates, or how they relate to the regulations as opposed to the Bill. If correct, they raise the questions why the viability of a scheme, whose avowed purpose is directed at the parents not their children, is so disproportionately dependent on child related benefits. There is nothing in Mr Holmes' evidence which addresses or answers these questions. 128. Accordingly I remain of the view that the Secretary of State has failed to show how the regulations are compatible with his obligation to treat the best interests of children as a primary consideration.”

“The Government's contention was that "the long term shift in welfare culture", or "reversing the impact of benefit dependency on families and children", would be beneficial to children in the longer run. This may well be so, although it is interesting how little prominence was given to this aspect of the matter in the justifications put forward by the Government for their policy. But in any event, this is to misunderstand what article 3(1) of the UNCRC requires. It requires that first consideration be given to the best interests, not only of children in general, but also of the particular child or children directly affected by the decision in question. It cannot possibly be in the best interests of the children affected by the cap to deprive them of the means to provide them with adequate food, clothing, warmth and housing, the basic necessities of life. It is not enough that children in general, now or in the future, may benefit by a shift in welfare culture. Insofar as the Secretary of State relies upon this as an answer to article 3(1), he has misdirected himself.”

“Ms Rhee accurately describes section 4 as providing "an austere regime, effectively of last resort, which is made available to failed asylum seekers to provide a minimum level of humanitarian support". Section 17 [of the Children Act 1989] in contrast is capable of providing a significantly more advantageous source of support, its purpose being to promote the welfare and best interests of children in need. As she says, section 4 support is intended to provide the minimum support necessary to avoid breach of a person's Convention rights; section 17 support is to be provided by reference to the assessed needs of the child. In short, as she puts it, section 4 and section 17 establish two discrete regimes established for different purposes.”

“Books, games and toys for children” he said: “Children have access to local authority education, and school transport (except for 16 and 17 year olds whose position I address as a separate category below). All three and four year olds, and from 1 September 2013 two year olds, receive early education arranged by local authorities, usually comprising 15 hours a week for 38 weeks a year. Children have access to parks, playgrounds, libraries and other services offered by local authorities. Ms Rose QC suggested that such access was only possible where they were within walking distance because the level of support made no allowance for transport in this respect. I am not prepared to assume without evidence that such facilities are, other than in exceptional cases, so far away that public transport is essential to access them. I address below the position of vulnerable persons in relation to walking to the GP or the shops, and similar considerations apply here. So far as books, toys and games are concerned I detect no error in the approach of the Secretary of State, who not only takes account of the provision of full time education for those aged 5 and above and early education for 2-4 year olds, and access to libraries and other services offered by local authorities, but also includes within her definition of needs of children "a contribution to wider socialisation costs to promote their development". There is a differential rate for children provided for in Regulation 10, and the evidence on behalf of the Secretary of State is that the proportionate weighting in favour of children is greater in the UK than generally amongst other EU Member States whose structure involves more for adults but less for additional dependent children. The exclusion of toys by Regulation 9 of the AS Regulations 2000 is not incompatible with the minimum content required by the Reception Directive.”

“Pace Lord Carnwath, I do not take it as read that the Committee [on the Rights of the Child]'s views, although entitled to careful consideration coming from the source that they do, can be regarded as binding upon party States as to the meaning of the treaty to which they agreed. But it is neither necessary nor appropriate to attempt to resolve these issues in this case, especially since we heard no argument upon them. All that needs to be said is that it is clear that the wider the reach of the concept of "decisions concerning" either an individual child or children in general, the less possible it is to impose the best interests of such child or children as a determinative or even priority factor over the frequently complex legal or socio-economic considerations which govern such decisions. The committee's general comment gives some acknowledgement to this problem in, for example, para 20, which recognises that although all State actions may affect children, a full and formal process of assessing their best interests is not called for in every case, and in para 32 where it is stated that the concept of the child's best interests is flexible and adaptable.”

“In taking this decision full consideration has been given to the legal duty to have regard to the need to safeguard and promote the welfare of children. The changes involve reductions in cash payments to families, but ensure that sufficient funds continue to be available to enable parents to care for their children safely and effectively and provide for their health and development.”

“Member States shall grant to minor children of asylum seekers and to asylum seekers who are minors access to the education system under similar conditions as nationals of the host Member State for so long as an expulsion measure against them or their parents is not actually enforced…”

“…it is clear that the wider the reach of the concept of "decisions concerning" either an individual child or children in general, the less possible it is to impose the best interests of such child or children as a determinative or even priority factor over the frequently complex legal or socio-economic considerations which govern such decisions.”

“School uniform grants are often provided by local authorities but all other clothing for asylum seekers and their dependent children has to be paid for out of the s. 96(1)(b) cash support. To the extent that school uniform is not provided in a particular case, this would fall for consideration as an exceptional case and does not have to be catered for in the general level of support given to all asylum seekers under s.

“The package of support available, both before and after the changes to the payment rates, ensures that the children of destitute asylum seekers are provided with stable and safe accommodation and with adequate provision for their ordinary everyday essential needs. I do not consider that the reduction in the amount of cash provided to the parents therefore has an adverse effect on their safety or the quality of the care they receive from their parents or their general health.”

“Accordingly there is no evidential basis on the current generic challenge for concluding that there are infirm children of asylum seekers whose additional non accommodation related essential living needs are not being met by local authorities and whose circumstances are not to be categorised as exceptional. It follows that the Secretary of State is not required to include them within the normal cohort of asylum seekers and their dependants at which the s. 96(1)(b) cash support is aimed.”

“(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, [2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. (2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)). (3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 at [26-27] per Sedley LJ. (4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a ‘rear guard action’, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at [23-24]. (5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), as follows: i) The public authority decision maker must be aware of the duty to have ‘due regard’ to the relevant matters; ii) The duty must be fulfilled before and at the time when a particular policy is being considered; iii) The duty must be ‘exercised in substance, with rigour, and with an open mind’. It is not a question of ‘ticking boxes’; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument; iv) The duty is non-delegable; and v) is a continuing one. vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty. (6) ‘[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.’ (per Davis J (as he then was) in R (Meany) v Harlow DC [2009] EWHC 559 (Admin) at [84], approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at [74-75].) (7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be ‘rigorous in both enquiring and reporting to them’: R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 at [79] per Sedley LJ. (8) Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) (Divisional Court) as follows: (i) At paragraphs [77-78] ‘[77] Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision. [78] The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making. (ii) At paragraphs [89-90] [89] It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science vTameside Metropolitan Borough Council [1977] AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para [85]): '….the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.'”

“I agree that it is insufficient for the decision-maker to have a vague awareness of his legal duties. He must have a focused awareness of each of the section 149 duties and (in a disability case) their potential impact on the relevant group of disabled persons. In some cases, there will be no practical difference between what is required to discharge the various duties even though the duties are expressed in conceptually distinct terms. It will depend on the circumstances.”

“It is for this reason that advance consideration has to be given to these issues and they have to be an integral part of the mechanisms of government, to paraphrase slightly the words of Arden LJ in the Elias case. There is a need for a "conscious approach" and the duty must be exercised "in substance, with rigour and with an open mind" (per Aikens LJ in Brown). In the absence of evidence of a "structured attempt to focus upon the details of equality issues" (per my Lord, Elias LJ in Hurley and Moore) a decision maker is likely to be in difficulties if his or her subsequent decision is challenged.”

“The two-fold obligation to eliminate discrimination and positively to advance equality was imposed by the Race Relations (Amendment) Act 2000. It followed the Stephen Lawrence Inquiry Report (Cm 4262-1) of February 1999. It was intended to enact a major change from the previous statutory provisions contained in the old Section 71. Those old provisions were perceived as lacking content as to steps organisations such as local authorities were required to take to comply. In addition, they were difficult to enforce. The new duty to have regard to the twin needs of elimination of discrimination and to promote equal opportunity and good relations for all is described within Schedule 1A to the 1976 Act (as amended) as a general duty imposed on the bodies specified in that Schedule.”

“First, the duty is imposed on a large range of public authorities. This demonstrates its importance as a national tool for securing race equality in the broadest sense. Secondly, promotion of equality of opportunity (and indeed good relations) will be assisted by, but is not the same thing as, the elimination of racial discrimination. Mr Drabble emphasised that his case on behalf of the appellants was not based on an allegation of racial discrimination. Thirdly, the promotion of equality of opportunity is concerned with issues of substantive equality and requires a more penetrating consideration than merely asking whether there has been a breach of the principle of non-discrimination. Fourthly, the duty is to have due regard to the need to promote equality of opportunity (and good relations) between the racial group whose case is under consideration and any other racial groups. The reference to any other racial groups may be no more than a reference to the general settled community. Fifthly, the equality of opportunity is of opportunity in all areas of life in which the person or persons under consideration are, or may not be, at a disadvantage by reason of membership of a particular racial group. In practice, this is likely to include disadvantage in the fields of education, housing, healthcare and other social needs.”

“8. I have noted that YT and RG give some examples of what they consider to be failures to address the differential impact on females of the reduction of the cash allowances (in the context of a proposed sex discrimination claim that I understand that they are no longer pursuing). At paragraph 4.2.4 of their skeleton argument they make a general point that single parent households are generally unable to share childcare responsibilities. This is true, but I do not consider that the problem is exacerbated by the reduction in their cash allowances. Apart from in very unusual cases, asylum seekers are not allowed to work and thus have little need to arrange for childcare services, particularly given that there is access to free nursery placements from the age of 2 years (in England) and 3 years elsewhere. To the extent that they need to take their children with them when they leave the house, it is unlikely that there is an additional cost in doing so. We ensured that the same level of cash was made available to cover the transport costs of children when a journey on foot is not possible and concessionary fares for children are also available. 9. I accept the general point made at paragraph 4.2.4 of the skeleton argument about economies of scale, in the sense that the larger the household the more economies are available. But, it is the size of the household, not the gender of the parent, that generates the economies. For example, a single parent household with four children may be able to benefit from more economies of scale than a two parent household with one child.”

“Moreover, in my view it is quite hopeless to say that the duty has not been complied with because it is possible to point to one or other piece of evidence which might be considered relevant which was not specifically identified in the EIA. I suspect that virtually every decision could be challenged on that basis. (In fact the IA did in terms refer to the need to provide grants to low income households to mitigate risk aversion. In addition Mr Williams dealt with this in his witness statement and pointed out that there was no robust evidence that this affected their behaviour.) In this context I respectfully endorse certain observations of Davis LJ in the Bailey case when he said, in connection with a decision to close certain public libraries (para 102): ‘Councils cannot be expected …to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s.149 which a QC might deploy in court.’” ‘Councils cannot be expected …to apply, indeed they are to be discouraged from applying, the degree of forensic analysis for the purpose of an EIA and of consideration of their duties under s.149 which a QC might deploy in court.’”