Supreme Court splits the baby over the benefit cap

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This blog was first posted on the UK Human Rights Blog.

The Supreme Court was sharply divided yesterday over whether the benefit cap breaches the Human Rights Act. The controversial cap limits the total amount of benefits an out-of-work family can receive, including housing benefit and benefits for children, to £500 per week. It is applied regardless of family size or circumstances such as rental costs. As a result, lone parents with children in large families are disproportionately affected, both because they are more likely to be hit by the cap and because they are less likely to be able to avoid its effects.

Five judges heard the appeal brought by two single mothers and their children who had fled violent and abusive husbands. Shelter and the Child Poverty Action Group intervened. All the judges agreed that the cap has a disproportionate impact on lone parents, who are overwhelmingly women.

The issue for the Court was whether this put the Government in breach of its obligations under Article 14 of the European Convention on Human Rights (which prohibits discrimination on grounds of sex) and Article 3(1) of the UN Convention on the Rights of the Child (which requires the Government to treat the best interests of children as a primary consideration in all decisions).

The Court was split three ways. On one side were Lady Hale and Lord Kerr, who both gave strongly worded dissenting judgments. They would have allowed the appeal and declared that the regulations breached Article 14 of the European Convention. In introducing the cap the Government had failed to comply with its obligations under the UN Convention to treat children’s interests as a primary consideration. Lord Kerr said

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” (269). Lady Hale noted that the children “suffer from a situation which is none of their making and which they themselves can do nothing about [227].

Seen in this light, the Government’s justification for the discriminatory effects of the cap did not stack up:

Families in work are already better off than those on benefits and so the cap is not necessary in order to achieve fairness between them; saving money cannot be achieved by unjustified discrimination; but the major aim, of incentivising work and changing the benefits culture, has little force in the context of lone parents, whatever the age of their children. Depriving them of the basic means of subsistence cannot be a proportionate means of achieving it.[229]

On the other side were Lords Reed and Hughes. They found that the Government had had the best interests of children in mind when introducing the cap. Further, the UN Convention on the Rights of the Child was not incorporated into UK law and could not be relied upon in a case involving sex discrimination under the Human Rights Act. The courts should not interfere lightly with the decisions of Parliament on issues of socio-economic policy and the Government’s aims were legitimate. Although the short–term savings are a small proportion of the total welfare budget, they nevertheless contribute towards deficit reduction, and the cap is also intended to change behaviour over the longer term.

That left Lord Carnwath to provide the swing vote. He agreed with Lady Hale and Lord Kerr that the Government had not shown compliance with the UN Convention on the Rights of the Child. Children’s benefits (such as child benefit and child tax credit) are intended for the children, not the parent:

The cap has the effect that for the first time some children will lose these benefits, for reasons that have nothing to do with their own needs, but are related solely to the circumstances of their parents. [126]

Tantalisingly, Lord Carnwath revealed that his “provisional” view was that this also meant a breach of Article 14 and that the cap was therefore unlawful. However, he changed his mind following post-hearing submissions. While he still thought the UK had not complied with the UN Convention, he agreed with Lord Reed and Lord Hughes on the “narrow” point that it could not be relied on in a case involving sex discrimination under Article 14 of the European Convention.

As a result, the appeal was dismissed by a majority, with Lord Carnwath stating his hope that the Government will reconsider the effect on children when it reviews the cap. The breaches of children’s rights would have to be settled “in the political, rather than the legal arena” [133]. So we end up with what looks like a closely fought but unsatisfactory compromise: a majority found that the benefit cap breaches the UK’s international obligations towards children, but another majority held that it is not unlawful as a matter of domestic law.