Cap on housing benefit is lawful, says Court of Appeal

Money purse - WalletSG and others, R (on the application of) v Secretary of State for Work and Pensions, 21 February 2014  [2014] EWCA Civ 156 – read judgment

The Court of Appeal has rejected on all grounds a claim that the cap on housing benefit amounted to unlawful discrimination against women.

The appellants were single mothers who claimed that the regulations capping housing benefit discriminated against women generally, and particularly those who were victims of domestic violence. The Divisional Court had dismissed their application for an annulment of the Benefit Cap (Housing Benefit) Regulations 2012 on the basis that the regulations were in breach of Article 14 of the ECHR read with Article 8, and the same Article read with the right to peaceful enjoyment of possessions under Article 1 Protocol 1. The court below had also rejected their submission that the regulations infringed the UN Convention on the Rights of the Child, or that they were unlawful on grounds of irrationality. In essence, the Divisional Court upheld the Secretary of State’s arguments that the aim of the benefit cap was primarily to bring about a change in culture by giving people some incentive to work, thereby reducing what the Government believes is the debilitating effect of long term dependency on benefits. It also accepted the government’s contention that the cap struck a fairer balance between the interests of taxpaying working households and those on benefits. Any interference with family life and any discriminatory impact of the benefit cap on women generally (and female victims of domestic violence who flee from their homes in particular) was therefore said to be justified and lawful.

The appellants’ appeal against that ruling was dismissed.

The Court of Appeal’s reasoning

Giving the judgment for the court, the Master of Rolls noted that it was a “striking feature” of the scheme – which lay at the heart of this appeal – “that the cap applies equally to a childless couple in an area with cheap and plentiful social housing as it does to a lone mother of several children in inner London who is compelled to rent on the private market. But the aim of the scheme is in part to encourage those subject to the cap to go back to work or to move to different areas of the country where rents are cheaper and housing benefit correspondingly lower.”

Article 14 read with A1P1

The Court accepted that, if the sole reason for discriminating against women was to save money, this would not have justified the discrimination. But achieving parity between the employed and unemployed was perfectly legitimate:

A broad concept of fairness as between those who are in work and those who are not in work is a legitimate aim. It reflects a political view as to the nature of a fair and healthy society.

The Strasbourg Court’s approach in  Hoogendijk v Netherlands (2005) 40 EHRR SE22 was relevant here: even if the aim of making fiscal savings could not justify differential treatment when looked at alone, it could provide justification when considered in conjunction with other legitimate objectives. The discriminatory effect of the cap on women generally was therefore not manifestly without reasonable foundation; as for victims of domestic violence, the Divisional Court had been entitled to refuse to decide whether the cap had a disproportionate adverse effect on them. The fact that the Government intended to change the Regulations to meet some or all of the criticisms was a cogent reason why it would not be appropriate to grant the appellants relief in that respect.

In reaching this conclusion, the Court of Appeal gave considerable weight to the fact that

  1. the cap is an aspect of social policy on the distribution of state benefits;
  2.  the essential controversial issues were debated in Parliament; and
  3.  the 2012 Regulations were approved by affirmative resolutions of both Houses.

UN Convention on the Rights of the Child 

Article 3(1) of the UNCRC provides that

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

But this did not create an obligation on decision-makers to address conflicting considerations of public policy in any particular order. As the Divisional Court had stated, all that was necessary was to “give appropriate weight to the interests of children as a primary consideration in the overall balancing exercise”. It was clear that it had not limited itself to a consideration of whether there had been any failure to appreciate the policy’s impact on children. There had been ample evidence before the Divisional Court that the secretary of state had had regard to the interests of children as a primary consideration.

Article 8

One of the aims of the cap was to force people to take decisions as to how they could live within the means of the capped benefits they received, and the Secretary of State accepted that many families would be forced to find cheaper accommodation away from existing support networks. It was estimated that the cap would result in an additional 20,000 families being homeless and requiring accommodation. In those circumstances, the measure did have a sufficient impact to engage Article 8. However, the Court endorsed the Divisional Court’s view that this added nothing to the argument as a whole:

We would be inclined to accept that the imposition of the cap does have sufficient impact on the enjoyment of family life to bring it within the ambit or purview of Article 8, particularly given the relatively liberal way in which the Strasbourg Court applies that test. It can therefore trigger the Article 14 obligation. But in our opinion, in the circumstances of this case at least, Article 8 adds nothing to the argument based on A1P1. The test of justification would be the same, as the Court of Appeal considered that it was in similar circumstances in Swift v. Secretary of State for Justice [2013] EWCA Civ 193, paras. 24-31. (Elias LJ, giving judgment below)

The Article 14 claim, read in conjunction with Article 8, was rejected for the same reasons as the Article 14 claim read with Protocol 1 Article 1 in relation to women generally.

As for Article 8 on its own, this provision does not generally require the state to provide a home. In  Chapman v. UK (2001) 33 EHRR 18 the Strasbourg Court observed (at para 99):

It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many person who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision (at para 99).

A positive duty might be imposed to provide support such as housing or welfare benefits in extreme cases, in particular concerning the welfare of children or the disabled. However, it was a premature and pessimistic assumption to conclude that in some instances family life would not be able to continue. Even if the cap caused such extreme consequences as to give rise to a breach of Article 8, it would not necessarily follow that the scheme itself required amendment. No doubt some families would suffer hardship as a result of the cap, but the appellants’ circumstances did not approach the level of destitution argued and fell well short of demonstrating a breach of Article 8. In the light of these conclusions, issues of justification did not strictly arise.

Irrationality

It had not been suggested  that the legislative scheme was perverse in the Wednesbury sense. It was, however, submitted that the Secretary of State had failed to gather sufficient information to ensure that his decision was properly informed with respect to the difficulties of those fleeing domestic violence and of those living in temporary accommodation. The Court did not agree.  The policy and level of the cap had been subjected to detailed Parliamentary scrutiny,  and applying the principles laid down in Bank Mellat v HM Treasury [2013] UKSC 39, this was not an instance where the courts should interfere with what parliament had agreed. The cap may be controversial, concluded the Master of the Rolls, but it reflects the political judgment of the government and it has been endorsed by Parliament after “considerable debate”:

It is not the role of the court to say whether it agrees with this judgment or not. The court’s sole function is to rule on whether the cap is lawful. On the main issue of whether it unlawfully discriminates against women (including victims of domestic violence) and families, the question is whether the cap is manifestly without reasonable foundation. For the reasons that we have given, we are satisfied that the cap plainly does have a reasonable foundation. For these and the other reasons that we have given in this judgment, the appeals must therefore be dismissed.

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