The UK Government’s welfare benefits cap has survived a challenge by two groups of lone parent mothers and their children, in a majority decision in the UK Supreme Court.
By five judges to two, the court refused appeals by lone parent mothers with children under two (the DA case), and by two lone parent mothers with nine children between them (the DS case), challenging the cap, set by the Welfare Reform and Work Act 2016 at annual figures of £23,000 for a household in London and £20,000 elsewhere.
Whereas single people (including lone parents) are exempt from the cap if they work for 16 hours each week, the aim of the cap being to incentivise work, the appellants argued that the Government, through Parliament, had discriminated against parents such as themselves, whose childcare obligations severely curtailed their ability to work, and against the children themselves. The High Court supported their case in DA, but this was reversed by the Court of Appeal, by which the court in DS held itself bound.
On appeal the claimants argued that the cap flew in the face of the Government’s own policy of providing no free childcare for children under two, and of replacing income support with jobseeker’s allowance only after a lone parent’s youngest child had reached school age. It infringed their ECHR article 8 right to respect for their family life, and also amounted to discrimination under article 14.
Lord Wilson, who gave the lead judgment for the majority, acknowledged that the cap had had a major impact on lone parent households with a child aged under five and in particular under two. Its reduction of benefits to well below the poverty line engaged the ECHR rights founded on, and the Government had to objectively justify such discrimination.
The test was whether the rule was manifestly without reasonable foundation (“MWRF"). Once the Government had put forward a foundation, the court would proactively examine whether it was reasonable. The United Nations Convention on the Rights of the Child ("UNCRC"), which could be used as an aid to interpretation of the ECHR, required public authorities to treat the child’s best interests as a primary consideration. The evidence showed that the Government did, as a primary consideration, evaluate the likely impact of the cap on parents such as the appellants. Furthermore, the Government’s belief that there were better long-term outcomes for children in households where an adult worked was a reasonable foundation for treating them similarly to all others subjected to the cap.
In concurring judgments, Lord Carnwath (with whom Lord Reed and Lord Hughes agreed) and Lord Hodge (with whom Lord Hughes agreed) both expressed reservations on the issue of status, but agreed with Lord Wilson on the relevance of the UNCRC and on the application of the MWRF test; and also that the executive and Parliament both gave proper consideration to the interests of the children affected.
Of the dissenting Justices, Lady Hale agreed with the legal principles but not their application, holding that the Government failed to strike a fair balance between the very limited public benefits of the cap and the severe damage done to the family lives of young children and their lone parents if the parents had to choose between working outside the home and not having enough for the family to live on.
Lord Kerr, however, considered the MWRF test to have derived from the margin of appreciation afforded to decisions of national authorities in the European Court of Human Rights, and would not import this approach into the national court’s consideration of proportionality. The question should be whether the Government had established a reasonable foundation for its conclusion that a fair balance had been struck. A finding that UNCRC article 3 had not been breached did not establish the proportionality of the measure, and the evidence showed that, while the impact on children’s rights was considered, it was not given a primacy of importance which article 3 required.
Shelter chief executive Polly Neate described the decision as "a blow to the many lone parents who are struggling to keep a roof over their children's heads due to the benefit cap".
She commented: "The court heard extensive evidence that the cap is not meeting the Government's intended aims and is, in fact, causing severe hardship and destitution for families."
Carla Clarke, head of strategic litigation for the Child Poverty Action Group, added that the cap was "increasing poverty while failing to deliver on its principal aim of work incentivisation".
"We continue to believe that the cap is structurally flawed and that pushing families who can't work deeper into poverty is totally unacceptable."