{"title":"“明显无合理根据”检验的问题","authors":"Jed Meers","doi":"10.2139/ssrn.3677184","DOIUrl":null,"url":null,"abstract":"Examines, following the Supreme Court ruling in R. (on the application of DA) v Secretary of State for Work and Pensions, the use of the “manifestly without reasonable foundation” test in domestic judicial review challenges. The application of this benchmark in a series of human rights based challenges to social welfare reforms – such as the high profile “bedroom tax” and “benefit cap” policies – has been pivotal to their outcome. This paper argues that the application of the test is problematic as it is a formulation derived from the margin of appreciation doctrine and does not transpose to domestic application. In the alternative – even if it is the correct test to apply in some circumstances – it is to be applied far more flexibly than currently and that a “very weighty reasons” benchmark applies for some classes of discrimination.","PeriodicalId":39542,"journal":{"name":"Social Security Bulletin","volume":"12 1","pages":""},"PeriodicalIF":0.0000,"publicationDate":"2020-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"3","resultStr":"{\"title\":\"Problems With the ‘Manifestly Without Reasonable Foundation’ Test\",\"authors\":\"Jed Meers\",\"doi\":\"10.2139/ssrn.3677184\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"Examines, following the Supreme Court ruling in R. (on the application of DA) v Secretary of State for Work and Pensions, the use of the “manifestly without reasonable foundation” test in domestic judicial review challenges. The application of this benchmark in a series of human rights based challenges to social welfare reforms – such as the high profile “bedroom tax” and “benefit cap” policies – has been pivotal to their outcome. This paper argues that the application of the test is problematic as it is a formulation derived from the margin of appreciation doctrine and does not transpose to domestic application. In the alternative – even if it is the correct test to apply in some circumstances – it is to be applied far more flexibly than currently and that a “very weighty reasons” benchmark applies for some classes of discrimination.\",\"PeriodicalId\":39542,\"journal\":{\"name\":\"Social Security Bulletin\",\"volume\":\"12 1\",\"pages\":\"\"},\"PeriodicalIF\":0.0000,\"publicationDate\":\"2020-03-18\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"3\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Social Security Bulletin\",\"FirstCategoryId\":\"1085\",\"ListUrlMain\":\"https://doi.org/10.2139/ssrn.3677184\",\"RegionNum\":0,\"RegionCategory\":null,\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q3\",\"JCRName\":\"Social Sciences\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Social Security Bulletin","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.2139/ssrn.3677184","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q3","JCRName":"Social Sciences","Score":null,"Total":0}
Problems With the ‘Manifestly Without Reasonable Foundation’ Test
Examines, following the Supreme Court ruling in R. (on the application of DA) v Secretary of State for Work and Pensions, the use of the “manifestly without reasonable foundation” test in domestic judicial review challenges. The application of this benchmark in a series of human rights based challenges to social welfare reforms – such as the high profile “bedroom tax” and “benefit cap” policies – has been pivotal to their outcome. This paper argues that the application of the test is problematic as it is a formulation derived from the margin of appreciation doctrine and does not transpose to domestic application. In the alternative – even if it is the correct test to apply in some circumstances – it is to be applied far more flexibly than currently and that a “very weighty reasons” benchmark applies for some classes of discrimination.