The welfare benefit cap introduced by the UK Government is not unlawful despite it having an indirectly discriminatory effect on single mothers, the UK Supreme Court ruled today.

By a three-two majority, the court dismissed an appeal by two mothers, referred to as SG and NS, against a decision by the Court of Appeal that that the impact of the regulations implementing the scheme upon lone parents, the majority of whom are women, could be justified and that the scheme was therefore lawful.

Under the cap, the total entitlement to specified welfare benefits, including housing benefit, child benefit and child tax credit, is limited to £350 a week for a single claimant without dependent children, and £500 for all other claimants. The limit relates to the average weekly earnings of a working household in Great Britain, net of tax and national insurance contributions. The Government justifies the scheme as necessary (1) to set a reasonable limit on the extent to which the state will support non-working families from public funds; (2) to provide members of households of working age with a greater incentive to work; and (3) to achieve savings in public expenditure. 

The appellants argued that the measure adopted was disproportionate, in that the aim of setting a reasonable limit to benefits could be achieved by setting the cap at the average income of working households inclusive of in-work benefits, rather than their average earnings exclusive of benefits; that the savings in public expenditure were marginal; and that the Government was also obliged to comply with article 3(1) of the United Nations Convention on the Rights of the Child (UNCRC), which provides that “in all actions concerning children… the best interests of the child shall be a primary consideration”.

In the majority, Lord Reed, with whom Lord Hughes agreed, said the Government's policy objectives were legitimate aims for the purposes of the European Convention on Human Rights. In considfering the quesiton of proportionality, it was the primary legislation, the Welfare Reform Act 2012, that required the cap to be set by reference to earnings of a working household rather than earnings plus benefits, and the ECHR compatibility of the relevant provision was not challenged. Even if the short-term savings were a small proportion of the total welfare budget, they contributed towards deficit reduction. The cap was also intended to change behaviour over the longer term. Whether the cap should be higher was a political question. Importantly, affected households were given advance notice and assistance to enable them to adjust. No credible means were suggested by which the Government's aims might be achieved without affecting more women than men. 

He added that although the UNCRC could be relevant to questions concerning the rights of children under the ECHR, the present context was one of alleged discrimination against women in the enjoyment of their property rights under article 1 of Protocol 1 to the ECHR, a question to which article 3 did not provide an answer.

Lord Carnwath, agreeing in the result, said that although the Government’s policy aims ignored the distinctive statutory purpose of child-related benefits, that of meeting the needs of children as individuals, and the Secretary of State had failed to show how the regulations complied with UNCRC article 3(1), he reluctantly agreed that article 3 was not relevant to an allegation of discrimination, not against children, but against their mothers in relation to their possessions. 

Lady Hale, who dissented along with Lord Kerr, argued that while the Government's aims were legitimate, viewed in the light of article 3(1) the indirect sex discrimination inherent in the cap’s implementation was not a proportionate way of achieving its aims. Strasbourg case law showed that article 3(1) was relevant to proportionality and discrimination as well as informing the substantive content of Convention rights, even in cases where the discrimination was not against the children but their mothers. The Government had not taken proper account of the best interests of the children affected, and the cap deprived some children of provision for their basic needs, which could not be in their best interests. In seeking to incentivise their parents to seek work, it discriminated against lone parents, who were least likely to be able to do so. 

"The major aim, of incentivising work and changing the benefits culture, has little force in the context of lone parents, whatever the age of their children", she said. "Depriving them of the basic means of subsistence cannot be a proportionate means of achieving it."

Lord Kerr, who agreed with Lady Hale, also considered that the UNCRC could be directly enforceable in domestic law, and that a mother’s personality was defined not simply by her gender but by her role as carer for her children, so that justification of a discriminatory measure had to address directly the impact on the children of lone mothers. "Why should a convention which expresses the UK’s commitment to the protection of a particular human right for its citizens not be given effect as an enforceable right in domestic law?", he asked.

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