Does the cap still fit?
Carla Clarke reviews the latest on legal challenges to the benefit cap.
Lone parents with children aged under two
Following a judicial review challenge, as of 22 June 2017, the benefit cap in theory no longer applies to 27 per cent of those otherwise affected by it. In R (DA and others) v Secretary of State for Work and Pensions  EWHC 1446 (Admin) (‘DA’), the claimants challenged the lawfulness of the benefit cap as it applies to lone parents with a youngest child under two. They argued that the cap unlawfully discriminated against them in depriving them of welfare benefits and interfering with their right to family life, in violation of their rights under the European Convention of Human Rights (ECHR). Mr Justice Collins held that:
- the benefit cap engaged Article 8 (the right to family life) as well as Article 1, Protocol 1 (right to enjoyment of possessions, including welfare benefits);
- the UN Convention on the Rights of Child (UNCRC), including its requirement to have regard to the best interests of the child, could be taken into account as an aid to interpretation of ECHR rights;
- there had been a failure by the Secretary of State for Work and Pensions (SSWP) to have regard to the best interests of children of lone parents under two in devising the benefit cap; and
- the discriminatory treatmentof the claimants was, on account of the failure to have regard to the best interest of the children, manifestly without reasonable foundation and, therefore, the discrimination was not justifiable.
Only two years ago, the Supreme Court upheld the lawfulness of the original benefit cap as it applied to lone mothers (R (SG and others) v SSWP  1 WLR 1449) (‘SG’). DA may therefore appear to be a departure from recent Supreme Court authority. However, by the time it reached the Supreme Court, SG was limited to an argument about discrimination against lone parents in respect of their benefit rights. While a majority held that the benefit cap was not in the best interests of the children of such lone parents, contrary to the UK’s international human rights obligations under the UNCRC, a different majority of the Supreme Court held that this was irrelevant to the question of whether any discrimination against the mother’s welfare benefits rights could be justified or not.
This irrelevancy barrier was avoided in DA by focusing the claim on both the mothers and the children’s Article 8 rights, to which a failure to have regard to the best interests of the children was relevant to any justification arguments. Further, limiting the claim to lone parents with children under two avoided the challenge being viewed as a challenge to the cap as a whole (78 per cent of households affected by the cap are lone parents). Instead, lone parents with children under two could be viewed as a particular group with special status (no entitlement to any free childcare, no requirement under normal benefit rules to engage in work-related activity, etc) who should benefit from an exception to the cap in much the same way as carers had done in the previous successful challenge to the cap (R (Hurley) v SSWP  PTSR 636).
Widening the legal challenge
DA is clear in its unequivocal criticism of some of the justifications put forward by the DWP for the cap:
‘Whether or not the defendant accepts my judgment, the evidence shows that the cap is capable of real damage to individuals such as the claimants. They are notworkshy but find it, because of the care difficulties, impossible to comply with the work requirement. Mostlone parents with children under two are not the sort of households the cap was intended to cover and, since they will depend on [discretionary housing payments], they will remain benefit households. Real misery is being caused to no good purpose.’
Such comments can apply equally to lone parents whatever the age of their youngest child. Finding suitable work that can be balanced with multiple childcare responsibilities necessarily depends on (i) part-time work for which the individual has the necessary qualifications being available within suitable distance from home/school/childcare provider; and (ii) affordable childcare being available, often for children of various ages. Getting that combination to come together is far from easy and, even when it does, the often low-pay and insecure nature of the part-time work available means that such work is not sustainable. The difficulties of combining work and childcare where there is a sole breadwinner and carer is already recognised in the wider benefit system through the modified work preparation and work availability and search requirements for lone parents in general. The benefit cap cuts completely across this, essentially penalising those for whom it is most difficult to get off the cap by finding sufficient work.
It is for these reasons that CPAG has brought a separate legal challenge on behalf of lone parents with children aged two years or over, in R (DS and others) v SSWP (CO/1211/2017). A hearing date is awaited.
The Secretary of State is appealing the decision in DA. In the meantime, the DWP has issued guidance saying that the legislation remains as itwas before the High Courtdecision, and that it and local authorities should continue to apply the benefit cap. CPAG disagrees with this position since, in continuing to apply the cap to lone parents with children under two, the DWP and local authorities are acting in breach of their obligations under the Human Rights Act (HRA) as the law currently stands.
In the light of DA, CPAG advice is, for claimants who may benefit, to put in a late housing benefit(HB) appeal – see our advice, which includes a link to a letter template. First-tier Tribunals might well decide to stay any appeals behind the final outcome of the further appeal in DA. If there is particularly serious or irreversible harm being caused by the operation of the benefit cap to individual claimants, then any stay could be challenged on appeal to the Upper Tribunal – eg, where claimant and children are at real risk of being made homeless.
Having an HB appeal in the system means that if the Secretary of State’s appeal in DA is ultimately unsuccessful, payment will be due from the date of the HB reduction decision following the application of the lowered benefit cap. By contrast, any amendment by the SSWP to legislation to provide for an exception to lone parents with children under two is highly unlikely to be retrospective.
In the light of the further challenge in DS, CPAG is also advising appeals to be filed by lone parents with children aged two years and over in order to protect their position, with a request to the First-Tier Tribunal that the appeal be stayed behind the case of DS. See our advice, which also includes a link to a letter template.
Regarding claimants on universal credit, there is no right of appeal, as such appeals are governed by the Social Security Act 1998 and Schedule 2 of that Act now removes a right of appeal against benefit cap decisions. (By contrast, HB appeals are governed by the Child Support, Pensions and Social Security Act 2000). For lone parents with a youngest child under two, the best advice is to seek to get thelocal authority to pay a discretionary housing payment to cover the full reduction resulting from the application of the cap. Any such request should refer to the High Court judgment in DA and the fact that the local authority is in breach of its HRA obligations by continuing to apply the cap.
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