Social Welfare Update: Revised benefit cap does not discriminate against lone parents with children below school age under arts 14 and 8 ECHR nor does it breach art 3(1) UNCRC

Tuesday 28 May 2019

R (DA & Ors) v Secretary of State for Work and Pensions [2019] UKSC 21, Lady Hale PSC, Lord Reed DPSC, Lord Kerr JSC, Lord Wilson JSC, Lord Carnwath JSC, Lord Hughes JSC, Lord Hodge JSC, 15 May 2019

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The benefit cap imposes a cap on the total amount of annual welfare benefits that a given household can receive. The legality of the previous scheme was upheld (by a majority three to two) in R (SG) v SSWP [2015] UKSC 16, where the complaint was of indirect discrimination against lone parent women. The present challenge was to the amended scheme under the Welfare Reform and Work Act 2016 whereby the applicable cap was reduced from £26,000 per annum for all families to £23,000 for families living in Greater London, and £20,000 for families living outside London. 

The government put forward three aims for the revised benefit cap: (i) fairness as between those in work and those on benefits, in that those in work should always be better off than those who are not, and with it the maintenance of public confidence in the benefits system; (ii) fiscal savings; and (iii) incentivising work outside the home.

The appellants in the DA case included lone parent mothers with children under the age of two. The appellants in DS included lone parent mothers with children under the age of five. The basic complaint in both DA and DS was that these lone parents, and their children, should have been treated differently from other lone parents, and from dual parent families, because their situation was relevantly different from the situation of other families who are subject to the benefit cap: that is, discrimination within the meaning of Thlimmenos v Greece [2000] 31 EHRR 12.  Unless the similar treatment could be justified, the government should have treated them differently by exempting them from the cap.

The appellants employed a number of arguments including that: (i) it was contrary to the interests of both the lone parents and their children under school age, that the parent should be constrained to work also outside the home; (ii) that, while the effect of the cap on all households to which it applied reduced their income below the poverty line, poverty had a disproportionate effect on the young children, stunting major aspects of their development in the long term as well as in the short term; (iii) the carefully calibrated regime of attaching conditions to the receipt by lone parents of income support was a recognition by the government that it was wrong to expect them actually to work until all their children have attained school age; and that to cap their benefits for failure to work before all their children have attained school age flew in the face of that policy decision.

The complaint of discrimination differed from the first benefit cap case as the adult victims were cast not merely as women but as lone parents of children below school age. Moreover those children were cast as further victims of it in their own right.  The Court accepted that the claims of all the appellants under article 14, taken with article 8 ECHR required it to assess whether, in setting the terms of the revised cap, the government breached article 3.1 of the UNCRC.  

The government’s defence consisted in part in the provision of Discretionary Housing Payments. It pointed out that when the cap required a local authority to reduce housing benefit below, or further below, the level of the recipient’s rent, there was the facility for it to make a DHP to cover the balance. 

By a majority of 5 to 2 the Court held that the manifestly without reasonable foundation (‘MWRF) test remained the appropriate test in the context of state benefits and that there was nothing in later cases of the Supreme Court to support a departure from the position. The issue had been put beyond reasonable argument by the seven-justice court in the “bedroom tax” case R (MA) v SSWP [2016] UKSC 58. Accordingly the application of the MWRF test should be regarded as beyond “future doubt”.

In dissenting judgments, Lady Hale and Lord Kerr said the MWRF test should not be applied to the final stage of the proportionality analysis. This aspect of the test for justification should include the question “whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” (James v UK (1986) 8 EHRR 123 and Bank Mellat (No 1) [2013] UKSC 39 considered). 

The majority Court concluded that the Parliamentary materials and other evidence before it showed that the government had evaluated the likely impact of the revised cap on lone parents with young children; and that it had assessed their best interests at a primary level of its overall consideration.  It also held that, although such households were significantly affected by the revised cap, the appellants had not demonstrated that the policy was manifestly without reasonable foundation and had not entered any substantial challenge to the government's belief that there were better long-term outcomes for children living in households in which an adult worked.

As there had not been any Convention-related discrimination, the appeals were dismissed.

The full judgment is available here: R (DA & Ors) v Secretary of State for Work and Pensions [2019] UKSC 21

Desmond Rutledge is a member of the Garden Court Chambers Welfare Benefits team.

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