Authors:Connor Johnston and Shu Shin Luh and Jo Underwood
Last updated:2023-09-18
Revised benefit cap unlawful for lone parents with children under two
On 22 June 2017, Collins J handed down judgment in R (DA and others) v Secretary of State for Work and Pensions [2017] EWHC 1446 (Admin), finding that the revised benefit cap was unlawful, in so far as it applied to lone parents with children under the age of two.
The revised cap had been introduced in November 2016 by the Benefit Cap (Housing Benefit and Universal Credit) (Amendment) Regulations 2016 SI No 909, capping the total level of welfare benefits available to households at £23,000 per year in Greater London and £20,000 outside. Unlike the previous cap, which came into effect in April 2013, the geographical impact of the revised cap is more widespread. Evidence from Shelter (intervener in the case) showed that families with two or more young children would be unable to afford their rent and essential living costs (such as food, clothing and personal care products) across significant parts of the country.
The challenge was brought by a group of single parents (represented by Ian Wise QC, Caoilfhionn Gallagher QC and Michael Armitage, instructed by Hopkin Murray Beskine), each of whom had a child, or children, under the age of two, and several of the children themselves. Owing to the young age of the children, and the lack of sufficient free child care provision for this age group, the claimants represented a wider cohort of lone parents and children who were adversely affected by the cap but were unable to take steps to mitigate the hardship. In particular, finding work was not an option for many in this group, meaning that the ‘work incentive’ underpinning the policy – the government’s principal justification for the cap – had no application.
Collins J, in a robustly worded judgment, held that the cap resulted in unlawful discrimination contrary to article 8, article 1 of Protocol No 1 and article 14 of the European Convention on Human Rights. The Supreme Court’s decision in R (SG and others) v Secretary of State for Work and Pensions [2015] UKSC 16, the judge held, was dispositive of the claim.
In SG, a wider challenge against the principle of the cap as a whole, the brunt of which is born disproportionately by women, had failed by a narrow margin, with three justices finding for the government and two against. A majority in that case had found that there had been a breach of article 3(1) of the UN Convention on the Rights of the Child (UNCRC), which places states parties under an obligation to treat the best interests of the child as a primary consideration, but a differently-constituted majority decided that this did not affect the outcome of the case, as it had been argued in that court on the basis of discrimination against the parents rather than the children.
By contrast, DA was argued on the basis of discrimination against the parents and the children. In view of this, Collins J accepted that the ‘barrier to relief’ in SG was not applicable and the failure to properly consider the impact of the revised cap on families with children under two meant there had been a breach of UNCRC article 3(1), which, in turn, meant the discriminatory effect of the cap was manifestly without reasonable foundation and unlawful.
The judge granted permission to appeal, though he observed that ‘[w]hether or not the defendant accepts my judgment … [r]eal misery is being caused to no good purpose’ (para 43). In the meantime, the Department for Work and Pensions (DWP) has issued guidance (HB Bulletin U2/2017: Judicial review in the case of DA and others v Secretary of State of the inclusion of lone parents with children aged under two in the benefit cap, 22 June 2017) stipulating that, while the appeal is in train, the legislation remains in effect and the ‘DWP and local authorities … should continue to apply the benefit cap as now’.
Connor Johnston and Shu Shin Luh acted for Shelter in this case, led by Martin Westgate QC.