Advice post High Court decision on Benefit Cap and lone parents with children under two
On 22 June 2017, the High Court ruled that the benefit cap as it applied to lone parents with children under 2 was unlawful.
The DWP has said that it plans to appeal this ruling and that in the meantime, it and local authorities should continue to apply the benefit cap and the legislation governing the benefit cap remains unchanged
CPAG’s advice to those who stand to benefit directly from the High Court ruling (i.e. lone parents with children under 2) is that they should file a late appeal with their local authority against the decision to reduce their housing benefit following the benefit cap being lowered in November 2016. The time limit for bringing an appeal is one month but this can be extended by a further 12 months if the Local Authority does not object to this, or if the Tribunal considers it fair and just to extend time. In explaining why the late appeal should be admitted, claimants should ask the Local Authority not to object to time being extended because the reduction of their HB as a result of the application of the benefit cap is a breach of their and their children’s right not to be discriminated against, contrary to the Human Rights Act. On the right hand panel are two template letters for advisers; one for lone parents with a child or children aged under two and one for those whose child or children are two or over.
For those lone parents who are on Universal Credit rather than legacy benefits, there is no right of appeal (Social Security Act 1998, Schedule 2, paragraph 8A).
Discretionary Housing Payment
In addition, in either case (HB or UC), if a full DHP is not being paid to cover the shortfall in rent, the LA should be requested to award a full DHP immediately to ensure that any harm for what has been held by the court to be a breach of their and their children’s human rights is limited as far as possible.
Lone parents with children 2 or over
Appeals (including late appeals, if necessary) can potentially be made against the application of the lowered cap as applied from November 2016 by lone parents irrespective of the age of their youngest child. On the right hand panel is a template letter for advisers to use.
The argument is that the revised cap unlawfully discriminates against women and the children of lone parents. The lowered cap disproportionately impacts on lone parents and their children, who are far more likely to be capped (approximately 67% of all capped families are lone parents) and are least likely to be able to avoid its effects due to their caring responsibilities. Evidence shows that the lowered cap is already having a stark adverse effect on vulnerable non-working families.
CPAG are currently making this argument in another test case before the High Court in R(DS and others) v Secretary of State for Work and Pensions challenging the lawfulness of the cap as it applies to lone parents (whatever the age of their youngest child) and, in the alternative, lone parents with children under 5 or under 3 and, in each case, their children. It will be heard on 16 and 17 January 2018.