In R (HC) v Secretary of State for Work and Pensions [2017] UKSC 73 the Supreme Court decided that Zambrano carers are not eligible for non-contributory benefits which have a “right to reside” test. The benefits affected by the decision are income support, child benefit, child tax credits, and housing and homelessness assistance. The decision, while no doubt correct in law, leaves behind a broken system.

The questions for the court

Zambrano carers are non-EEA nationals who moved to the UK to join an EEA-national partner, subsequently separated, but still have care responsibilities for their British citizen children. Zambrano carers have a right to reside in the UK because otherwise their children would be forced to leave, thereby depriving the children of their rights as EEA nationals.

The two main questions in HC were:

1. Whether Zambrano carers have a right based on EU law to non-contributory benefits, flowing from the fact that they have a right to reside in the host state; and
2. If not, whether that situation constitutes discrimination contrary to the EU Charter of Fundamental Rights or the European Convention on Human Rights.

All five judges decided against HC on both questions. Lord Carnwath wrote the majority judgment with which three other judges agreed, while Lady Hale wrote a humane and persuasive concurring judgment.

EU case law does not confer a right to these benefits

In deciding that Zambrano carers do not have an EU law right to such benefits, the majority cited the main judgments of the Court of Justice of the European Union on such people. Those decisions demonstrate that the mischief which the decision in Zambrano itself (C-34/09 Ruiz Zambrano v Office national de l’emploi [2012] QB 265) and the following judgments addressed was the possibility of EEA nationals being forced to leave the territory of the EU because their parent or carer is compelled to leave, having no right to remain. A typical example of the reasoning of the Court of Justice was in C-256/11 Dereci v Bundesministerium für Inneres:

Consequently, the mere fact that it might appear desirable to a national of a member state, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a member state to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted [Supreme Court’s emphasis].

The right of a Zambrano carer to stay on the territory of a member state does not guarantee a particular quality of life, the majority concluded.

The majority were not persuaded by a comparison with C-413/99 Baumbast and C-480/08 Teixeira and Ibrahim. Those cases concerned the right to benefits of the non-EEA parent of children of an EEA national, where the EEA national has separated from the non-EEA national, but where the children, themselves not EEA nationals, have a right to education in the host state. Article 12 of Regulation 1612/68 guarantees children of EEA workers access to the state’s education system “under the same conditions as the nationals of that state, if such children are residing in its territory”. The Supreme Court said that the requirement that access to education and benefits be on the same conditions as nationals of the host state for Baumbast-type cases was a matter of interpretation of EU law; by contrast, the present case was a matter of whether English law in the form of regulations barring HC from non-contributory benefits is compatible with EU law.

The majority then decided that there was no discrimination contrary to the EU Charter of Fundamental Rights. The Charter is only concerned with discrimination when implementing EU law. In their words:

Once it is determined that EU law does not require more for the children of a Zambrano carer than practical support sufficient to avoid their being obliged to leave the Union, that also sets the limits of what is involved in its implementation.

The majority then pointed out that discrimination based on immigration status could not give rise to a discrimination claim under Article 14 ECHR, and that in any event matters of social security are:

pre-eminently a matter for national authorities, subject only to the requirement that their decisions should not be “manifestly without reasonable foundation”.

The majority were in agreement with the main point made by Lady Hale in her concurring judgment concerning the problems with the system.

Lady Hale’s not-quite-dissent

Lady Hale’s judgment was humane and compelling. She placed the responsibility for the situation in which HC found herself squarely on the policymakers who decided in the wake of Zambrano to exclude Zambrano carers from non-contributory benefits.

39. I have found this a very troubling case. It is not a case about adults’ rights. It is a case about children’s rights – specifically the right of these two very young British children to remain living in their own country and to have the support which they need in order to enable them to do so. Self-evidently they need the support of their mother in the shape of the care which she is able to give them. But they also need support in the shape of a place to live and enough to live on.

40. Yet this is not the way in which the policy-makers who framed the various Regulations which are under attack in these proceedings saw the matter. They saw it solely in terms of the mother and other Zambrano carers like her, as third country nationals who should be put in the same position as any other third country national…

41. Yet Zambrano carers are not like any other third country nationals. They have British (or other EU citizen) children dependent upon them… There is not a hint in the evidence which we have seen that any consideration was given to how these children would be supported if the parent looking after them was unable to work, whether because of the demands of child care or for any other good reason… We do not know whether it had occurred either to central or to local government that (unless there was family or charitable support) the only way in which these children could escape destitution was through the powers of local children’s services authorities under section 17 of the Children Act 1989.

Lady Hale then noted that those affected by the decision in HC must rely on local authority support through section 17 of the Children Act 1989 to feed themselves and their family. Section 17 support was only intended to temporarily tide people over while they get themselves back on their feet. It was never intended by Parliament to be people’s only means of surviving through the whole year. Local authorities do not receive section 17 funding for this purpose.

The present case demonstrates this: HC’s local authority, Oldham Borough Council, received a total of £12,000 in section 17 funding for 2013. The annual cost to the local authority in section 17 support of supporting HC and her two children was calculated to be £11,368.76.

Useful guidance for those advising Zambrano carers

Finally, Lady Hale gave guidance on how local authorities should exercise their discretion to give section 17 support to Zambrano carers. I quote it in full because it is likely to be useful to those advising Zambrano carers:

In carrying out that review, the local authority will no doubt bear in mind, not only their duties under section 17, but also their duty under section 11 of the Children Act 2004, to discharge all their functions having regard to the need to safeguard and promote the welfare of children, and their duty, under section 175 of the Education Act 2002, to exercise their education functions with a view to safeguarding and promoting the welfare of children. Safeguarding is not enough: their welfare has to be actively promoted. The authority will no doubt take into account that these are British children, born and brought up here, who have the right to remain here all their lives; they cannot therefore be compared with asylum-seeking children or the children of asylum-seeking parents, who may end up with no or only a limited right to remain. They will no doubt also wish to take into account the impact upon the proper development of these children of being denied a level of support equivalent to that of their peers, that is, the other British children around them whose families are dependent on income-related benefits. That level of support is not fixed at a level designed to lift children out of poverty, as officially defined, but at a level much closer to subsistence…

Section 17 is one way of providing these children with what they need and deserve. That fact that there are other, and in some respects preferable, ways of doing so does not mean that the United Kingdom is in breach of its obligations under EU law. But no doubt local authorities would welcome some guidance on how they should meet their responsibilities to children with Zambrano carers (and even some help in doing so).

The result of HC confirms that Zambrano carers are not entitled to non-contributory benefits, but must make do with section 17 support. There is no requirement for the UK to arrange its benefits structure such that Zambrano carers can access non-contributory benefits. However, that does not stop the result from being contrary to the principles of a society committed to promoting the welfare of children and equality of opportunity for all children, no matter their background.

There is a second, economic argument, to be made against the present system. Section 17 support is not a benefit intended to be used throughout the year: it is there to keep children from being street homeless. By contrast, Income Support, for example, which assists those on low income to continue to earn, is significantly more economic for the treasury than section 17 support. This decision therefore leaves the government pinching pennies only to leave under-funded local authorities to leak pounds in homelessness support. That is madness.