R (on the application of SG and others (previously JS and others)) (Appellants) v Secretary of State for Work and Pensions (Respondent) [2015] UKSC 16

The benefit cap was introduced in the Welfare Reform Act 2012 (the Act) and implemented by the Benefit Cap (Housing Benefit) Regulations 2012. The Regulations limit entitlement to welfare benefits, including the main out-of-work benefits, together with child benefit, child tax credit and housing benefit, by way of reference to average earnings in the UK.[1]

It was accepted by both sides that the Regulations resulted in indirect discrimination against women, insofar as the cap affects all non-working households which would otherwise receive benefits in excess of the cap but single parent households, the majority of which are headed by women, were more likely to be affected. Particularly those, in high-cost areas with several children.

Arguments were also made that the cap also affects victims of domestic violence, because they may be temporarily housed in accommodation which is relatively expensive, and therefore, in the absence of the cap, they are entitled to relatively high amounts of welfare benefit. Victims of domestic violence are also predominately women [3].

The four Appellants were single parent mothers and their youngest child in two families (a third family withdrew from the case by the time it reached the Supreme Court as the cap no longer applied to them). Both the women who brought the case had experienced a history of domestic abuse at the hands of their children’s fathers and now faced serious financial hardship as a result of the cap. The Appellants brought the case to ask the court to determine whether the Regulations imposing a cap on the amount of welfare benefits received by claimants in non-working households was lawful i.e. whether the indirect discrimination was justified for the purposes of Article 14.

The Secretary of State’s position, was that the cap was justified as a matter of economic and social policy, namely that it is necessary

1. to set a reasonable limit to the extent to which the state will support non-working households from public funds,
2. to provide the members of such households of working age with a greater incentive to work, and
3. to achieve savings in public expenditure at a time when such savings are necessary in the interests of the economic well-being of the country [4].

Held

Lord Reed, in delivering the lead judgment, held that the Government’s aims of the cap were legitimate. In relation to proportionality, the Appellants argued 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. Lord Reed noted, however, that the Act required the cap to be set by reference to “earnings” [67-69] and the Act was not the subject of challenge. Consideration of proportionality in the case involved controversial issues of social and economic policy, with major implications for public expenditure. He decided that determination of those issues is pre-eminently the function of democratically elected institutions. Unless manifestly without reasonable foundation, their assessment should be respected [93]. Finally, he noted no-one had been able to suggest an alternative which would have avoided that differential impact on women without compromising the achievement of the Government’s legitimate aims [96].

In relation to victims of domestic violence, the court accepted that amendments effected by The Housing Benefit and Universal Credit (Supported Accommodation) (Amendment) Regulations 2014 (SI 2014/771) were designed to address the problems that arose in this context, and there was nothing to suggest in the appeal that they had failed to do so. Moreover, dependent on particular circumstances, the court noted discretionary housing payments had been made available by Government to Local Authorities along with guidance advising them that the funding is to be specifically aimed at individuals or families fleeing domestic violence.

Other arguments put forward by the Appellants relied on the UNCRC, namely that the Secretary of State was obliged by s.6 Human Rights Act 1998 to treat the best interests of the child as a primary consideration in accordance with Article 3(1), were dismissed. While the UNCRC could be relevant to issues involving children’s rights, this was not a case in which the parent’s rights were inseparable from the best interests of their children. The consequences of the cap for children depended upon how their parents responded to it. There was no relationship between the fact that the cap affected more women than men on the one hand, and the assumed failure of the legislation to give primacy to the interests of children on the other [78, 81-82, 86-87, 89].

Lord Hughes added that Strasbourg’s case-law is a long way from saying that article 3(1) is relevant to justification of any kind of discrimination, whether or not the rights, upbringing, or family life of a child are affected [144].

Lord Carnwath agreed that while article 3(1) UNCRC has no role in justifying discrimination against women [129], the effects of the cap on their children must be taken into account. Child-related benefits exist to meet children’s needs. The cap deprived children of their benefits for reasons unrelated to their own needs. The Secretary of State had not shown how the Regulations were compatible with the obligation to treat children’s best interests as a primary consideration. However, the consequences of that were to be dealt with in a political, rather than a legal, arena [124-128, 133] and therefore dismissed the appeal albeit on narrower grounds.

In her dissenting judgment, Lady Hale, found the duty to treat children’s best interests as a primary consideration under Article 3(1) of the UNCRC was binding on the UK as part of its international obligations. In Lady Hale’s view, the duty was relevant to proportionality and discrimination, whether affecting children or their mothers. The question was whether the benefit cap could be justified independently of its discriminatory effect. That involved asking whether proper account had been taken of children’s interests. Clearly it had not, because the cap deprived them of the basic necessities of life. The cap could not, therefore, be viewed as a proportionate means of achieving a legitimate aim [paras 215-216, 218-227, 229].

Notably, Lord Kerr, in his dissenting judgment, considered the UNCRC could be directly enforceable in domestic law [255-256].  He further reasoned that a mother’s personality is defined not simply by her gender but by her role as carer for her children, so that justification of a discriminatory measure must directly address the impact on the children of lone mothers [264-265]. For the same reasons given by Lady Hale [220], he would have allowed the appeal on the basis that it cannot be in the best interests of the children affected by the cap to deprive them of the means of having adequate food, clothing, warmth and housing. Depriving children of (and therefore their mothers of the capacity to ensure that they have) these basic necessities of life is simply antithetical to the notion that first consideration has been given to their best interests [269].