Landmark Chambers


Supreme Court gives judgment on Zambrano carers and their rights to welfare benefits

DATE: 20 Nov 2017

R (on the application of HC) v Secretary of State for Work and Pensions [2017] UKSC 73

The Supreme Court gave judgment in this case on 15th November 2017, dismissing the appeal brought by HC against the rejection of her claim for judicial review seeking to challenge three amendment regulations made in November 2012 removing the rights of Zambrano carers to income support; child benefit and child tax credit; and housing and homelessness assistance. Zambrano carers are so called after the judgment of the Grand Chamber of the CJEU in Ruiz Zambrano v Office National de l’emploi [2012] QB 265. HC is a non-UK national who is the mother of two children who are UK nationals. She challenged the regulations on the basis that they were incompatible with the result In Zambrano itself; or alternatively were discriminatory in breach of article 21 of the EU Charter of Fundamental Rights; or alternatively breached Article 14 of the ECHR.

There were two judgments; one given by Lord Carnwath (with whom Lords Clarke, Wilson and Sumption agreed); and the other by Baroness Hale. Both judgments agreed that the appeal should be dismissed.

Lord Carnwath held that HC could not rely on the Baumbast, Ibrahim and Texeira line of case-law; that the regulations did not implement EU law for the purposes of the Charter, and did not breach Article 14 of the ECHR given the fact that they were compatible with EU law. He did however expressly agree with potentially important observations of Baroness Hale on the flexibility implicit in s17 of the Children Act. Both Lord Carnwath and Baroness Hale stressed the importance of the s17 duty and identified a need for national guidance on the approach that local authorities should take under s17.

Richard Drabble QC (leading Ranjiv Khubber) appeared for HC; Charles Banner appeared for the Aire Centre, the Intervener.