Two groups of lone parents and children challenged the revised household benefit cap introduced in 2016. They argued that lone parents with very young children faced special barriers to working enough hours to qualify for an exemption. The Supreme Court dismissed both appeals by five votes to two.
The revised cap
The original benefit cap, made under the Welfare Reform Act 2012 and in force from 15 April 2013, limited specified welfare benefits. For couples and lone parents the annual limit was £26,000. In R (SG) v Secretary of State for Work and Pensions, a majority of the Supreme Court rejected a claim that that cap unlawfully discriminated against women.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The Welfare Reform and Work Act 2016 then introduced a lower revised cap, in force from 7 November 2016. For couples and lone parents the limits, now contained in the 2012 Act, are £23,000 in Greater London and £20,000 elsewhere. They do not rise automatically with inflation, although the Secretary of State must review them at least once in each Parliament. Child benefit, child tax credit, housing benefit and income support are among the benefits which count. The local authority applies the cap by reducing housing benefit.
Under the arrangements challenged in these proceedings, entitlement to working tax credit provided a route out of the cap. For a lone parent this generally required at least 16 hours’ work a week. Caring for a young child could make that threshold particularly difficult to reach.
The claimants
The linked claims, known as DA and DS, concerned lone-parent households with young children. The Court ordered that the appellants and their families remain anonymous.
They claimed unlawful discrimination under the Human Rights Act 1998. Their case was that lone parents of young children could not realistically work the required hours because of childcare, yet the cap treated them like households in a relevantly different position. They also relied on the interests of the children. A secondary argument that the scheme was irrational at common law was not decided separately: Lord Wilson said that, if the Convention claim failed, the scheme would not be irrational.
In DA, Collins J upheld the claims for lone parents of children under two and those children. The Court of Appeal, by a majority, set his order aside. Sir Patrick Elias gave the main judgment and Sir Brian Leveson agreed; McCombe LJ dissented. In DS, Lang J dismissed the claims without reviewing the evidence, so that the appeal could proceed directly to the Supreme Court.
How the discrimination claim was framed
The Secretary of State accepted only that the mothers’ benefit entitlement fell within the right to peaceful enjoyment of possessions. The Court held that the claims also fell within the right to respect for family life. Lord Wilson explained that family life includes a home with enough stability and resources for accommodation, warmth, food and clothing. A parent might escape the cap by working and placing a young child in other care. Otherwise the family might have to move, fall into rent arrears or debt, or cut food and heating. Either way, reducing benefits well below the poverty line struck at family life.
Article 14 also requires a “status”. Lord Wilson held that lone parents of children under two or under five, and those children, had such a status, and that status need not be permanent. Lord Carnwath accepted “lone parent” as a status but doubted the narrower age-based groups. Lord Hodge shared that doubt. Both assumed that the requirement was met for these appeals and left its boundaries for later consideration.
Lord Wilson analysed the complaint as one of the Thlimmenos kind: people whose situations were relevantly different had been treated alike and, absent justification, should have been exempted. He confined the DA claim to children under two and the DS claim worth deciding to children under five. A complaint covering all lone parents, including those with only school-age children, could in his view already be justified. The comparison was with others subject to the cap.
The income-support rules recognised the difficulty of working while caring for very young children. The evidence supported a real difference between these families and other households subject to the cap: many could not readily take the work that would permit them to escape it.
Justification
What had to be justified was not the existence of a cap, but the failure to exempt these groups. For a welfare-benefit rule, the majority applied one question: was the adverse treatment manifestly without reasonable foundation? Lord Wilson treated that as settled. Lord Carnwath, with whom Lord Reed and Lord Hughes agreed, said the same. The court examines the reasons put forward; talk of a burden of proof is largely theoretical.
The UN Convention on the Rights of the Child is not part of domestic law, but article 3.1 can inform Convention rights. It requires a child’s best interests to be a primary consideration in actions concerning children. Lord Wilson held that setting the revised cap was such an action. By a narrow margin, however, he found no breach. Parliamentary and government material showed that the likely impact on lone parents with young children had been evaluated and their interests assessed as a primary consideration. The Court was not to reassess, from its limited perspective, whether that evaluation was questionable or unbalanced. Lord Carnwath agreed: ministers and Parliament had considered further exemptions, preferred the message that work pays, and relied on discretionary housing payments for hard cases.
Those payments were also important to the final conclusion. Local authorities may make them towards housing costs, although practice varies and awards are commonly short. Lord Wilson described them as just about adequate to address particular hardship. He held, again by a narrow margin, that the government’s belief in better long-term outcomes for children where an adult works supplied a reasonable foundation for refusing an exemption. The under-two group had the stronger case, but it still failed.
Lord Carnwath emphasised a further limit. The amount of the cap and the benefits to which it applies are in primary legislation and were not open to review. The challenge concerned the failure to create another exception in the regulations. He adopted the Court of Appeal’s distinction between harsh effects inherent in the parliamentary scheme and effects distinctive enough to require separate treatment. Larger families tend to suffer more whatever the children’s ages. The childcare difficulties of the identified groups did not make the failure to exempt them manifestly unreasonable.
The dissenting judgments
Lady Hale agreed with the legal structure but not the result. She accepted the aims as legitimate, but considered the cap unsuitable for these families: working households are already better off; the projected net saving was very small; and it had not been shown that the cap induced these parents to work. Awareness of concerns about children was not, in her view, the same as giving their best interests first priority, and a fair balance had not been struck.
Lord Kerr also dissented. He held that the “manifestly without reasonable foundation” formula belongs to the European Court’s margin of appreciation and should not govern the final balancing stage in a domestic court. On the evidence, he considered that these families’ interests had not been properly weighed against what the cap could achieve for them. Discretionary housing payments cover only housing costs, and only uncertainly. He would have found a breach of article 3.1 if one were required.
Verdict: The Court dismissed both appeals by five votes to two. The failure to exempt these lone-parent households from the revised cap did not, in the majority’s view, amount to unlawful discrimination. Lady Hale and Lord Kerr dissented.
Source: R (on the application of DA and others) v Secretary of State for Work and Pensions [2019] UKSC 21
