DA & Ors, R (On the Application Of) v Secretary of State for Work and Pensions (2017) EWHC 1446 (Admin)

This was the judicial review of the ‘reduced’ benefit cap – £20,000 pa  outside London, £23,000 in London, brought by claimants who were all single mothers with children, including children under two years old. The claim was on the basis that the regulations were discriminatory, either against women as the majority of single parents, or against the children, on the basis that single parents of children under two years old were not able to ‘escape’ the cap by obtaining 16 hours or more a week of employment.

Collins J noted the previous Supreme Court decision in R(SG and others) v. SSWP [2015] 1 WLR 1449 on the previous benefit cap, taking from this that it was agreed that there had been indirect discrimination, and that the test for justification of that discrimination was whether it was  ‘manifestly without reasonable foundation’. What was also taken from that judgment was what the ‘legitimate aims’ of the policy were:

First, there was the aim of securing the economic well-being of the country. This could be legitimate even if discriminatory provided that there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised: see for example Sidabras v. Lithuania (2004) 42 EHRR 6. Secondly, there was the aim of incentivising work. The third aim was to impose a reasonable limit on the amount a household could receive by way of welfare benefits. As Lord Reed observed (paragraph 66) the maintenance of public confidence in the welfare system so that recipients are not stigmatised or resented, is undoubtedly a legitimate aim.

That was probably the high point for the SoS WP’s case. From there, each justification for the cap being applied to single parents fails to get any purchase.

On those affected negotiating a lower rent (at 27):

The claimants’ solicitor has made enquiries of the Residential and the National Landlord’s Associations. The responses have confirmed what her experience had told her that private landlords are very reluctant to take on tenants who were capped and many would seek to evict such tenants. One way in which the defendant has suggested that persons capped can avoid the difficulties is to negotiate a lower rent. That suggestion has been described as laughable, an adjective with which I am inclined to agree. I suppose there may be landlords altruistic enough to reduce rent for needy tenants, but they will be a minute proportion. The suggestion is totally unrealistic.

On the responses by Govt ministers in Parliament to questions about the application of the cap to single parents with young children (in relation to the issue of parliamentary scrutiny of the regulations and the circumspection of the court):

The minister went on to draw attention to the DHP provision which she said provided the most effective means of increasing incentives to work and promoting fairness, while ensuring that the most vulnerable were supported. The possibility of receiving at least 70% (now 85%) of childcare costs was also referred to for those on Universal Credit. The minister’s response does not engage with the difficulties faced by those with children under two. (33)

And

Lord Freud’s response did no more than reiterate the view that parents in work were in the children’s best interests and the levels of the cap would reinforce the message that work paid and that it was not fair for someone on benefits to be receiving more than many working households. It is difficult to see that this really engages with the problems facing lone parents with children under two. (35)

On the purpose of the incentive to work 29-31):

The defendant relies, as we have seen, on the need to incentivise parents to work so that children do not suffer from living in workless families. It is difficult to see how that is realistic in relation to children under two. It is surely in their interests that they should have adequate food, shelter, warmth and care since deprivation of such will produce much greater harm. Evidence from Professor Maggie Atkinson, who was Children’s Commissioner for England between 2010 and 2015, deals with the UNCRC, which has been ratified by all nations save the USA. The UK ratified in 1991 and so is committed to promote and protect children’s rights. I shall deal with its effect on these claims in due course. Those in need of welfare benefits fall within the poorest families with children. It seems that some 3.7 million children live in poverty and, as must be obvious, the cap cannot but exacerbate this. The need for alternative benefits to make up shortfalls is hardly conducive to the desire to incentivise work and so not provide benefits. There is powerful evidence that very young children are particularly sensitive to environmental influences. Poverty can have a very damaging effect on children under the age of five.

Mr Sheldon reiterated Mr Edson’s evidence that lone parents such as the claimants who face being capped can and should exercise choice just as families have to do generally. I am not impressed with this since I doubt anyone would choose to be a lone parent. Women in the position of the claimants are not lone parents by choice but because they have lost a partner who would share care with them, often from domestic violence. There is no question of real choice. It is no part of the cap policy to seek to limit the size of families or to persuade women to avoid having children: at least two of the claimants found the reference to choice offensive. I am not surprised.

Childcare for children under two is more expensive since children of that tender age need more one-to-one care. Equally, there are difficulties in finding nurseries or child carers who are prepared to take on such young children. Mothers are encouraged to breastfeed their children which makes it difficult if not impossible to enter work for the 16 hours needed to avoid the cap at least until an age when breastfeeding will no longer be needed. These are important factors relied on by the claimants in submitting that the cohort of lone parents with children under 2 does have a special status which is outside that dealt with in SG.

On the issue of discrimination, the Art 8 rights of the children were not relied upon in SG. However, in the bedroom tax decision in R(MA and others) v. SSWP [2016] 1 WLR 4550 the art 8 rights of someone who was not directly the benefit claimant were accepted as being affected by the Supreme Court, with no reasons required.

Thus it is clear that benefit cuts can properly be said to engage the Article 8 rights of those affected. That they can include the young children whose welfare is likely to be affected by the cuts in the benefits which are specifically for their benefit seems to me to be clear. It follows in those circumstances that Article 14 is in play.

Lord Carnwath’s swing decision in SG, in which he “decided to dismiss the appeal because the discrimination was against the parents not the children and the children would have been treated the same whether the lone parents were male or female”, did not apply in this case. The failure was to apply the best interests of the children.

The claim succeeded. The regulations produced indirect discrimination, and breach the article 8 with article 14 rights of the children.

I would only add this. 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 not workshy but find it, because of the care difficulties, impossible to comply with the work requirement. Most lone parents with children under two are not the sort of households the cap was intended to cover and, since they will depend on DHP, they will remain benefit households. Real misery is being caused to no good purpose.

Comment

Unsurprisingly, The DWP immediately announced its intention to appeal and issued guidance that the cap should continue to be applied.