The Benefit Cap: a legal stock take

Latest DWP figures show a consistent picture since the benefit cap was lowered back in November 2016:

  1. almost 75% of all capped households are headed up by a lone parent;
  2. a majority of all capped households (56%) are lone parent families with a youngest child under 5 years old;
  3. the benefit cap can be avoided by working a certain amount, but the rate at which this happens hovers around the 40% mark (as a percentage of all those who are no longer affected by the cap). However, it is only around 25% as a percentage of those who have ever been capped. (Even then it doesn’t take account of the fact that some households would have moved into work anyway without the cap);
  4. almost 80% of capped households would not have been capped under the original cap (set at £26,000 irrespective of location compared to the current £20,000 outside of Greater London, £23,000 in Greater London).

Unfortunately, equally consistent now has been the Supreme Court in ruling that the benefit cap, both in its original and its more severe revised form, is lawful. So, for the time being, a policy which was recognised as ‘harsh’ by the Supreme Court, which disproportionately affects lone parents (the vast majority of whom are female) and their children, and which fails to deliver on its key objective of incentivising work remains lawfully in force.

What, if anything, has challenging the policy in the courts achieved? While of little consolation to those parents and children who remain subject to the cap, there are two legal points now confirmed by the country’s highest court which are likely to assist in other cases concerning welfare rights and children.

The first is the unequivocal recognition that where welfare benefits are intended to provide accommodation, warmth, food and clothing for a household, including the children in that household, they fall, in legal jargon, ‘within the ambit of’ the right to family life. This allows a child to argue that where a benefit intended to meet their basic needs is provided in a discriminatory way, then their right to non-discrimination in respect of the right to family life (Article 14 in conjunction with Article 8 of the European Convention on Human Rights) has been breached. This plugs an otherwise gaping hole in the protection of children’s welfare rights that, because children do not have any direct legal entitlement to social security benefits intended to meet their needs, other than disability living allowance, they cannot claim a breach of their right not to be discriminated against in respect of their property rights.

The second is that the UN Convention on the Rights of the Child (‘UNCRC’), including the requirement for the best interests of the child to be given primary consideration in all actions concerning her, is relevant to the determination of both a child and parent’s right to non-discrimination in the enjoyment of family life. Furthermore, if it’s found that the ‘best interests’ requirement has not been complied with, this might mean that the justification for the differential treatment is manifestly unreasonable and so the treatment is discriminatory.

If the legal challenge to the two-child limit gets permission to be appealed to the Supreme Court, a case in which the Court of Appeal concluded that the policy was plainly contrary to the interests of the children who will be affected by it, the Supreme Court’s approach to the relevance of the UNCRC in the field of non-discrimination, the right to family life and children’s welfare rights will be tested further still.