The backlash against Supreme Court support for the “cruel” benefit cap has begun, with CIH saying a ruling today (May 15) against lone parents with children under school age reinforces the case for scraping the cap completely.
Though the court acknowledged the effect of the cap as “harsh” on lone parents, it rejected the appeals in cases brought against the work and pensions secretary over the lawfulness of the measure by a majority of five to two.
CIH deputy chief executive Gavin Smart said the case focused further attention on a need to scrap the cap.
“The impact it is having is fundamentally unfair, (it) has increased poverty and hardship among the poorest households across Great Britain.
“Some people are going without food or heating so they can pay for their housing, or falling behind with their rent and being put at risk of homelessness,” said Smart.
“The government’s own figures show that the majority of households affected by the benefit cap are single-parent families – many with very young children – and people who are too unwell to work.
“Quite simply, the cap is punishing those who will find it most difficult to find work – it’s time for the government to scrap the benefit cap,” he said.
Polly Neate, chief executive of Shelter, said the Supreme Court ruling was a blow to the many lone parents who are struggling to keep a roof over their children’s heads due to the benefit cap.
“Some families we work with are left with 50p a week towards their rent.
“The court heard extensive evidence that the cap is not meeting the government’s intended aims and is, in fact, causing severe hardship and destitution for families,” she said.
In March this year, the Commons Work and Pensions Committee called for an overhaul of the ‘cruel’ cap in a damning report that said government “doesn’t have the objective or moral grounds” to keep the cap.
The DWP’s own figures – released in February – show that 74% of single-parent families had their housing benefit capped last year.
A month earlier, DWP stats showed single mums made up 85% of all households whose incomes have been limited by the cap.
Campaigners say the “discriminatory” reduced cap targets the wrong people and is not achieving its stated aims.
Last year, a panel of judges were asked to rule on whether the revised cap breached human rights laws.
Announcing today’s ruling, Lord Wilson acknowledged the legislation that introduced the revised cap as “tough”, and said the court had been faced with a difficult decision on the appeals.
The evidence, he said, had persuaded all seven justices that the cap had a major impact on lone parents with children under school age because it was “particularly difficult for them to go out to work”.
Under the Welfare Reform and Work Act 2016, families receiving specified state benefits of more than £20,000 a year, or £23,000 a year if living in London, should have those benefits capped at those levels – with scope for exemptions.
A lone parent can avoid the cap by working 16 hours a week, but lawyers for lone parents said the cap had “drastically” cut housing benefits to leave many families unable to afford basic necessities to care for their children.
In a test case it was argued that lone parents should be exempted because of the difficulty in finding work compatible with childcare responsibilities.
At today’s ruling, Lord Wilson acknowledged the effect on the parents and particularly on their children was “often harsh”.
But in concluding that the appeals “must fail”, the majority considered “we cannot go so far as to say that this application of the cap is manifestly without foundation”.
Lady Hale, ruling in favour of the five women who brought the appeals, said that “this seems to me a clear case where the weight of the evidence shows that a fair balance has not been struck between the interests of the community and the interests of the children concerned and their parents”.
Declaring “unjustified discrimination” against lone parents of children under the age of five, and against children under five with lone parents, she said: “It seems to me that it has been comprehensively demonstrated by the mass of evidence… that the revised benefit cap is not suitable to achieving any of its declared aims.”
The appeals are brought on behalf of various lone parent mothers and their young children to challenge the cap with the appellants arguing that in introducing the cap, the government, through Parliament, has discriminated against lone parents of young children, whose childcare obligations severely curtail their ability to work, and against the children themselves.
Identification of the appellants is prohibited by court order.
In a case called ‘DA’ the appellants were three lone parent mothers two of whom had a child under two at the outset of proceedings, and those two children themselves.
A case called ‘DS’ had the appellants as two lone parent mothers with nine children, three of whom were under five, and those nine children themselves.
In June 2017, the High Court held in the DA case that the benefit cap unlawfully discriminated against the children under two and their mothers, but on 15 March 2018 the Court of Appeal set aside the High Court’s order.
In March last year, the claims of the DS claimants were formally dismissed – but with the granted of a so-called ‘leap frog’ certificate allowing an appeal directly to the Supreme Court.
Today’s Supreme Court ruling dismissed the appeal by a majority of 5-2.
Lord Wilson acknowledged that the cap has had a major impact on lone parent households with a child aged under five and in particular under two.
Though it could be said that the cap does incentivise them to try to find work for at least 16 hours per week, it was argued to fly in the face of the government’s own policy of providing no free childcare for children under two and of replacing income support with job-seeker’s allowance only after a lone parent’s youngest child has reached school age.
The government’s funding of Discretionary Housing Payments (‘DHPs’) may alleviate the impact of the cap on such lone parent households – but the Supreme Court said the evidence on this could be stronger.
Where the cap saves little public money, it can take the families it affects well below the poverty line and the ruling acknowledges living in poverty has a “particularly adverse impact” on the development of children under five.
The cap’s reduction of benefits to well below the poverty line engages the claimant mothers’ and children’s right under Article 8 of the European Convention on Human Rights (‘ECHR’) to respect for their family life.
Each of the four classes of claimants has a separate status under Article 14 on grounds of which status, they might complain they face discrimination – for which the ruling accepts there is prima facie evidence.
Essentially, despite being in a relevantly different situation from others subjected to the cap, they are treated the same way.
To the Court, the government must objectively justify this discrimination – in this case, its failure to exempt the DA and DS cohorts from the cap.
The test for whether the government can justify a discriminatory rule governing the distribution of welfare benefits is whether the rule is “manifestly without reasonable foundation”.
Once the government has put forward a foundation, it is for the court to proactively examine whether it is reasonable.
The United Nations Convention on the Rights of the Child (UNCRC) requires public authorities to treat the child’s best interests as a primary consideration.
While this forms no part of UK domestic law, it aids interpretation of the ECHR as to whether the government unjustifiably discriminated against the children and their parents.
To the court, the government’s belief that there are better long-term outcomes for children in households where an adult works is a “reasonable foundation” for treating the DA and DS cohorts similarly to all others subjected to the cap.
Today’s ruling saw Lord Carnwath and Lord Hodge both express reservations on the issue of status, but agreeing with Lord Wilson on the relevance of the UNCRC and also on the application of the “manifestly without reasonable foundation” test.
The three agree that the executive and Parliament both gave proper consideration to the interests of the children affected.
Lady Hale agreed with Lord Wilson on the legal principles but not their application, holding that the government failed to strike a “fair balance” between the very limited public benefits of the cap and the severe damage done to the family lives of young children and their lone parents if the parents must choose between working outside the home and not having enough for the family to live on.
Lord Kerr considered the “manifestly without reasonable foundation” test to have derived from the margin of appreciation which is afforded to decisions of national authorities in the European Court of Human Rights – and he would not import this approach into the national court’s consideration of a measure’s proportionality.
To the court, the steps in the proportionality analysis at the national level were well settled in the relevant case law – the “manifestly without reasonable foundation” standard should not be applied as part of this analysis.
Instead, the question for the Court should be whether the government has established that there is a reasonable foundation for its conclusion that a “fair balance” has been struck.
In relation to the UNCRC, Lord Kerr did not agree with Lord Wilson that the key question is whether the government has acted in breach of Article 3.
A finding that Article 3 has not been breached does not establish the proportionality of the measure, the court ruled.
And, according to the court, the case evidence showed that, while the impact on children’s rights was considered, it was not given a primacy of importance which Article 3 requires.