Social rights, child rights, discrimination and devolution: untangling the web

Abstract

This article examines judicial reviews of two areas of social security policy and practice in the UK – the household benefit cap and the restriction of bereavement benefits to bereaved spouses and civil partners. While each case ostensibly concerned discrimination against claimants, in practice much of the legal argument centred on the impact on claimants’ children. The judiciary is revealed to be deeply divided on the lawfulness of the acknowledged discrimination. The article considers what lessons can be drawn about the relative weight that ought to be afforded to claimants’ property rights, the best interests of affected children, anti-discrimination provisions and the state’s stated policy imperatives of cost control and administrative convenience. Insights are also sought into whether devolutionary differences can be identified between the approaches of courts in London and Belfast.

Keywords:

• Social rights
• child rights
• discrimination
• social security
• judicial review

Acknowledgements

An earlier version of this article was presented at an Economic and Social Rights Academic Network (UK and Ireland) workshop at Ulster University, March 2017. Thanks to the workshop participants, Rory O’Connell and the journal’s anonymous reviewers for their useful feedback, to Gráinne McKeever and Ann Marie Gray for their supervision of the research project from which the article indirectly flows and to Laura Banks for her support throughout the writing process.