Supreme Court: capping benefits does not breach human rights of children
12 June 2019
R (DA & Ors) v Secretary of State for Work and Pensions; R (DS & Ors) v Secretary of State for Work and Pensions  UKSC 21
The Supreme Court has rejected a challenge by lone parents with young children to the reduced benefit cap, holding by a majority of 5-2 that its discriminatory effects are justified. Although disappointing for campaigners, the judgment helps to clarify many aspects of discrimination law in the context of social and economic policy.
Background: the benefit cap
The benefit cap was first introduced in the Welfare Reform Act 2012. It applies as a limit on the total amount of welfare benefits that one household can receive if they are out of work, initially set at £500 per week (or £26,000 per annum) for families with children. As the limit applies irrespective of family composition, it has a severe effect on larger families and those such as lone parents with young children who may find it difficult to avoid it by finding work.
In R (SG and Others) v Secretary of State for Work and Pensions  UKSC 16, the Supreme Court rejected a challenge to the original cap on sex discrimination grounds by a majority of 3-2. There were five judgments, each disagreeing with each other to varying degrees, such that certain aspects of the ratio can be hard to identify.
While one majority of three found that the cap had been introduced without considering the best interests of the children affected, an alternative majority found that this was irrelevant to the issue of whether its discriminatory effects against women were justified. It was also left unclear whether the cap fell within the ambit of Article 8. Lord Carnwath expressed hope that the cap’s deleterious effects on children would be addressed in the “political, rather than the legal arena.”
Rather than heeding his suggestion, the response from the political arena was to reduce the cap further. Following a Conservative manifesto commitment in the 2015 election, the Government introduced legislation to reduce the benefit cap to £23,000 (or £442.31 per week) for families with children in Greater London and £20,000 (or £384.62 per week) for families with children elsewhere in the UK.
The present challenge
The present challenge was formulated differently to that in SG. Three of the Claimant families argued, as in SG, that the cap discriminated generally against women, who disproportionately make up the population of lone parents. However, more broadly, it was also argued that lone parents with children under the age of 5 and/or 2 formed a “status” for the purposes of Article 14 and that the cap discriminated against them by failing to recognise their different needs.
The Supreme Court preferred this second formulation and identified the issue as whether the cap failed without justification to treat significantly different cases differently, contrary to the principle in Thlimmenos v Greece (2000) 31 EHRR 12.
Lord Wilson gave a judgment for the majority that is admirable for its clarity. Indeed, at one point he exclaims “blessed is simplicity”, and at another he expresses regret that he did not manage to make his judgment shorter. Contrast this with Lady Hale, who comments in her dissent: “A professional lifetime of struggling with equality issues has persuaded me that some degree of complexity is inevitable and we should not apologise for it.”
First, Lord Wilson succinctly summarised the voluminous evidence provided to the court on the impact of cap. This included its impact on lone parents (marked), whether it incentivises work (inconclusive), the availability of free childcare and help with housing costs (scarce), its effect on poverty (“hotly contested”) and the effect of poverty on young children (“striking”).
Next, slicing through the complex case law that has developed around Article 14 in this context, he decided a number of important legal principles:
- As a measure which reduces the amount that families can live on to survive, the benefit cap fell within the scope of Article 8 (the right to private and family life), as well as Article 1 Protocol 1 (the right to peaceful enjoyment of property). This settles a debate about whether reducing benefits for children can fall within the ambit of Article 8.
- The concept of “status” under Article 14 should be interpreted generously, such that lone parents with children under 5 and/or 2 and the children themselves may have a protected status.
- Applying the principle in Thlimmenos v Greece that “like cases must be treated alike and different cases differently”, the task for the Government was to justify its decision to treat lone parents with young children in the same way as others affected by the cap.
- The standard of review in the field of social and economic policy is whether the discriminatory treatment (or similarity of treatment) is “manifestly without reasonable foundation.” This settles another debate about whether that test applies to the domestic court (although Lord Kerr dissented on this point).
- As the benefit cap is an action concerning children, the UN Convention on the Rights of the Child (UNCRC) is relevant to the consideration of whether the similarity of treatment is justified under Article 14.
- Article 3 of the UNCRC imposes both a procedural and a substantive obligation on the Government to treat the best interests of the child as a primary consideration when formulating policy.
The crucial question, however, was whether the failure to exempt lone parents with young children from the cap could be justified in light of the duty to treat the latter’s best interests as a primary consideration.
Lord Wilson dealt with this issue of justification in one short paragraph, in which he reluctantly upheld the Government’s line that the cap could have a long-term positive effect on children by encouraging their parents into work:
The appellants have not entered any substantial challenge to the government’s belief that there are better long-term outcomes for children who live in households in which an adult works. The belief may not represent the surest foundation for the similarity of treatment in relation to the cap; but it is a reasonable foundation, in particular when accompanied by provision for DHPs which are intended on a bespoke basis to address, and which on the evidence are just about adequate in addressing, particular hardship which the similarity of treatment may cause. 
Despite agreeing with the leading judgment, Lord Hodge also wrote a separate judgment with which Lord Hughes agreed, saying that he would have dismissed the appeal, but with a qualification on the issue of status. He considered that lone parents with children under 2/5 did not have a status capable of protection under Article 14.
In a powerful dissent, Lady Hale agreed on the legal principles, but disagreed as to the conclusion on justification. She considered that there had been insufficient analysis of the effect of the cap on lone parent households with young children. By forcing the lone parents of pre-school children into work without providing adequate childcare, the cap failed to strike a fair balance between the public interest and the best interests of the children involved. There was no evidence that proper account had been taken of the psychological harm to very young children of separating them from their primary carers before they had reached school age.
Finally, Lord Kerr disagreed that the “manifestly without reasonable foundation” test applied to a decision by the domestic court, preferring a stricter proportionality test. He would have allowed the appeal.
Leaving aside the intricacies of discrimination law, this case was always going to be about the willingness of the Supreme Court Justices to interfere with a flagship welfare policy in order to protect young children from its effects.
On one level, then, the case simply reflects the growing division within the Court as to the proper scope of judicial interference in political decisions. Lord Sumption was not on the panel, but his criticisms of judicial law making in his recent Reith lectures would chime with some in the majority. By contrast, Lady Hale and Lord Kerr were keen to assert the role of the courts. As Lady Hale put it:
Constitutionally, economic policies are decided by those organs of government which are directly accountable to the people. The courts cannot make those decisions for them. But that does not mean that the courts have no role to play. In a constitution which respects and protects fundamental rights, it is the role of the courts to protect individuals from unjustified discrimination in the enjoyment of those fundamental rights. There are no “no go” areas. 
Michael Spencer is a barrister at One Crown Office Row.
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