Discriminatory cap on social benefits found to be lawful
SG & Ors (Previously JS & Ors), R (On the Application Of) v The Secretary of State for Work And Pensions [2014] EWCA Civ 156 (21 February 2014)
The UK Court of Appeal has held that a cap on housing benefits does not breach the rights of the child, the family or the right to freedom from discrimination. The cap was found to have a discriminatory impact upon women, particularly single mothers and mothers escaping domestic violence. The Court of Appeal considered the cap was justified in light of the legitimate aim of ensuring people return to work.
Facts and the legislation
The English Welfare Reform Act 2012 (the Act) and its regulations introduced a welfare 'cap' to ensure that people who receive government assistance do not receive more than a prescribed amount. Various types of assistance are included when calculating the cap, such as income support and carer's allowance. Other types of government assistance like the war pension, are not. The cap does not apply if a person, or a person and their partner, are entitled to working tax credits.
Essentially, the effect of the 'cap' was to reduce long term dependency on government welfare benefits and incentivise people to return to paid work. The government argued that any interference with the right to family life or the impact of the 'cap' on women generally, was justified and lawful because of important policy considerations in incentivising those on long term welfare benefits to return to work, and striking a fairer balance between the interests of tax paying working households and those on benefits.
The two claimants were mothers who received a housing benefit and had at least three dependent children living with them. One had been a victim of domestic violence. Both had their welfare benefit reduced as a result of the cap. The appellants argued that the cap discriminates against women, and particularly women subject to domestic violence.
The issues in dispute were whether the cap:
- Unlawfully discriminates against women and women who are victims of domestic violence under the European Charter of Human Rights (European Charter);
- Infringes the requirement of organisations to work towards what is in the best interests of children under the UN Convention on the Rights of the Child (CRC);
- Infringes against families and the right to family life under the European Charter; and
- If so, whether it was unlawful;
- Alternatively, whether it was unlawful at common law due to irrationality.
The Court's findings
Discrimination against women and women subjected to domestic violence
The Secretary of State for Welfare and Pensions did not dispute that the effect of the cap was to discriminate against women. The respondent submitted that the cap was intended to save money, break a dependence on government assistance, remove discrimination against married women and to incentivise welfare recipients to work. The Court of Appeal accepted these submissions and held that on balance the broad intention of the legislation justified the discrimination. While saving money was not sufficient justification for discriminating against women, achieving greater fairness between those who work and those who do not was perfectly legitimate.
The appellants submitted that the cap impacts particularly adversely on women subject to domestic violence. The Divisional Court was uncertain whether domestic violence would be encompassed in 'other status' and declined to look at this issue as the Government intended to amend the Regulations to meet some of the criticisms. The High Court agreed. The Court of Appeal did not disturb the High Court's reasoning.
Best interests of the child
The appellants submitted that because the State did not consider the best interests of the child as the first consideration when drafting the legislation, it had not given the rights of the child paramount consideration and had therefore breached the UN Convention on the Rights of the Child. The Court of Appeal held that the order in which competing interests are evaluated and addressed during the legislative compilation process does not necessarily reflect the priority given to the interest. The Court of Appeal accepted the State's evidence that the interests of the child had been given adequate consideration - that is, they were a paramount consideration.
The right to family
The High Court had held that article 8 of the European Charter, the right to family, does not provide a positive right to be afforded housing. The ground of appeal rested on the assertion that welfare recipients would be unable to pay rent because of the cap, and that this could in turn lead to families becoming homeless. The impact of homelessness could lead to the separation of the family unit and isolation from social support networks. The Court of Appeal accepted that this separation was possible, if not likely, and that it was undesirable.
The Court of Appeal held that the real question to be determined was, 'what is the real or effective cause of the homelessness?' Was it the cap or something else? Ultimately the Court held that even though alternative accommodation may not be proximate to a family's current residence and that decisions of local authorities concerning housing are difficult to challenge, those considerations do not make the cap unlawful.
Further, the Court of Appeal acknowledged that even though there is no positive obligation to provide housing, such an obligation may arise in exceptional circumstances. The Court of Appeal concluded that it is premature and pessimistic to conclude that family life would not be able to continue under the cap and rejected that the cap infringed the right to family.
Irrationality of cap legislation
The Court of Appeal did not consider it necessary to spend much time reviewing the irrationality appeal ground, finding that the respondent had given adequate consideration to the legislation and had properly informed itself before drafting the legislation. The legislation was controversial and was debated in detail in Parliament. The cap was not irrational at common law.
Editor’s note: This case was appealed to the UK Supreme Court and heard on 29 and 30 April 2014. It is currently awaiting judgment. As of 10 April 2014, women’s refuges have been exempt from the benefit cap.
The decision is available at: http://www.bailii.org/ew/cases/EWCA/Civ/2014/156.html
Ben Hine is a graduate at DLA Piper.