The ‘manifestly without reasonable foundation’ proportionality test applies outside the context of welfare benefits – but may make little difference

In R (On the Application Of Drexler) v Leicestershire County Council [2020] EWCA Civ 502 the Appellant sought to challenge changes to the Respondent’s Mainstream Home to School Transport Policy and SEN Policy. Under the previous policies, the Appellant, who is severely disabled, had been provided with local authority organised transport to and from school.

The changes to the Council’s SEN Policy made different levels of provision for students aged 5-16, 16-18 and 19+. For those aged 16-18, including the Appellant, the changes to the SEN Policy removed local authority organised transport and instead provided their families with direct payments to arrange their own travel, save in exceptional circumstances. This was in contrast to the position taken in respect of the other age groups.

The Appellant’s circumstances were not judged to be exceptional and so the Council decided to withdraw the existing transport arrangements and award a personal transport budget. She considered the payments made under that budget to be insufficient to fully fund the costs of arranging transport.

At first instance, the Appellant challenged the SEN Policy on the basis that it was unlawful because it gave rise to discrimination on a number of bases. On appeal, her complaint had been narrowed to discrimination on the basis of age, between children and young persons with SEN aged 16-18 such as the Appellant, and pupils and students with SEN aged 5-16 or 19+. She claimed that such discrimination was contrary to Article 14, read with Article 8 and/or A2P1, of the European Convention on Human Rights.

Swift J found that persons in the Appellant’s position were indeed treated less favourably and went on to consider whether there was an objective and reasonable justification for the difference in treatment using the proportionality test set out in Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39. After the hearing, but before judgment was given, the Supreme Court gave its judgment in R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21 in which it stated that, with respect to justification in relation to entitlement to welfare benefits, the test is whether the approach taken by the government is ‘manifestly without reasonable foundation’. Following written submissions from the parties, Swift J applied that test in the Appellant’s case.

The Appellant appealed on the basis that the judge should not have applied the ‘manifestly without reasonable foundation’ test outside the context of welfare benefits.

The Court of Appeal disagreed, noting that there was no authority from the Supreme Court to suggest that the test was applicable only in welfare benefits cases, and that there were decisions of the Court of Appeal applying the test outside that context.

In any event, the Court found that, in the context in which a public authority is required to allocate finite resources and to choose priorities when it comes to setting its budget, there is no material difference between application of the conventional proportionality test, giving appropriate weight and respect to the judgment of the executive or legislature, and the ‘manifestly without reasonable foundation’ test.

The correct test had therefore been applied at first instance and the appeal was dismissed.