R (on the application of DA and Others) v Secretary of State for Work and Pensions

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Wilson,Lord Hodge,Lord Carnwath,Lord Reed,Lord Hughes,Lady Hale,Lord Kerr
Judgment Date15 May 2019
Neutral Citation[2019] UKSC 21
Date15 May 2019

[2019] UKSC 21

Supreme Court

Easter Term

On appeals from: [2018] EWCA Civ 504 and [2016] EWHC 698 (Admin)

before

Lady Hale, President

Lord Reed, Deputy President

Lord Kerr

Lord Wilson

Lord Carnwath

Lord Hughes

Lord Hodge

R (on the application of DA and others)
(Appellants)
and
Secretary of State for Work and Pensions
(Respondent)
R (on the application of DS and others)
(Appellants)
and
Secretary of State for Work and Pensions
(Respondent)

Appellants

(DA and others)

Ian Wise QC

Caoilfhionn Gallagher QC

Stephen Broach

Michael Armitage

(Instructed by Hopkin Murray Beskine Solicitors)

Appellants

(DS and others)

Richard Drabble QC

Tim Buley

Zoë Leventhal

(Instructed by Child Poverty Action Group)

Respondent

(Secretary of State for Work and Pensions)

Clive Sheldon QC

James Cornwell

Simon Pritchard

Shane Sibbel

(Instructed by The Government Legal Department)

Intervener

(Shelter Children's Legal Services)

Martin Westgate QC

Shu Shin Luh

Connor Johnston

(Instructed by Freshfields Bruckhaus Deringer LLP)

Intervener

(Equality and Human Rights Commission)

Helen Mountfield QC

Raj Desai

(Instructed by Equality & Human Rights Commission)

Intervener

(Just Fair — written submissions only)

Jamie Burton

Daniel Clarke

(Instructed by Hansen Palomares)

Heard on 17, 18 and 19 July 2018

Lord Wilson

( with whom Lord Hodge agrees)

Introduction
1

The various appellants in each of two appeals, which have been heard together, challenge the lawfulness of provisions relating to what is known as the revised benefit cap.

2

The original benefit cap was introduced by section 96(1) of the Welfare Reform Act 2012 (“the 2012 Act”). Pursuant to it, the Housing Benefit Regulations 2006, SI 2006/213, (“the 2006 Regulations”) were amended so as to provide, in regulation 75A, that, if a household's total entitlement to specified welfare benefits were otherwise to exceed an annual limit, its entitlement should be capped at that limit. The original cap came into force on 15 April 2013.

3

In R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR 1449, this court, by a majority of three to two, dismissed an appeal by three lone mothers and three of their children against a decision that provisions relating to the original cap did not discriminate against women in the enjoyment of their possession of welfare benefits and so were not unlawful. I will refer to the SG case as the first benefit cap case.

4

In its manifesto for the general election which took place on 7 May 2015 the Conservative Party proposed that any Conservative government would introduce legislation for a revised benefit cap which would cap specified benefits at a lower level. Following the party's victory in that election the government introduced, and Parliament enacted, the Welfare Reform and Work Act 2016 (“the 2016 Act”). By making amendments to the 2012 Act, the 2016 Act introduced the revised cap, which came into force on 7 November 2016. In making provision for the original cap, the earlier version of the 2012 Act had, in section 96(5) to (7), provided for the annual limit, at which the welfare benefits were to be capped, to be specified in regulations and to be determined by reference to the estimated average net earnings of a working household in Britain; and the amended 2006 Regulations had specified that, for couples and lone parents, the annual limit was £26,000, being a figure apparently determined in that way.

5

But the amendments wrought by the 2016 Act have replaced those provisions; and, for the purposes of the revised cap, they identify the annual limits in the 2012 Act itself, namely in a new section 96(5A). The effect of the subsection, when read with a new regulation 75CA inserted into the 2006 Regulations by regulation 2(3) of the Benefit Cap (Housing Benefit and Universal Credit) (Amendment) Regulations 2016 ( SI 2016/909) (“the 2016 Regulations”) is that, for couples and lone parents, the annual limits are reduced to £23,000 if they reside in Greater London and to £20,000 if they reside elsewhere. How were these reduced figures calculated? Clearly the yardstick of average net earnings of a working household was abandoned — otherwise the figures would not have come down. The government's Impact Assessment dated August 2016 relating to the 2016 Act (“the IA”) suggested that the reduced figures were calculated by reference to the fact that 40% of households earn less than them. But, say the appellants, the only arguably relevant figures would relate to the total income of those households, inclusive in particular of benefits. The amendments made in 2016 provide no automatic adjustment of the limits for inflation; and the reduced figures have already lost 5% of their real value. But a new section 96A of the 2012 Act requires the Secretary of State to review them at least once during each Parliament. The welfare benefits subject to the cap, which prior to the amendments to the 2012 Act were left to be specified in regulations, are also now specified in the Act itself, namely in section 96(10). Among others, the benefits there specified include child benefit, child tax credit, housing benefit and income support.

6

Various features of the scheme which applied to the original cap have been retained for application to the revised cap. By regulation 75D of the 2006 Regulations, it is for the local authority to implement the cap by reducing payment of housing benefit accordingly. By regulation 75F, those in receipt of certain benefits (now including, pursuant to amendment by the 2016 Regulations, a carer's allowance and a guardian's allowance) are exempt from the cap even if they also receive benefits which are specified in section 96(10) as being subject to it. And, most importantly, by regulation 75E(2), those entitled to working tax credit are exempt from the cap. Under regulation 4(1) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 (SI 2002/2005) a single person (which here includes a lone parent) is entitled to working tax credit if, among other things, she or he undertakes work for at least 16 hours each week. A couple, on the other hand, is entitled to it if, among other things, they undertake work for at least 24 hours each week, provided that one of them does so for at least 16 of those hours.

7

In the IA the government stated that its introduction of the revised cap had three aims:

(a) to improve the fairness of the social security system and to increase public confidence in its fairness, particularly in relation to the government's objective not to reward a non-working family with an income in the form of welfare benefits which exceeded that of an average working family;

(b) to make fiscal savings which would enable the government to redirect its limited resources for better deployment elsewhere; and

(c) to incentivise the parents or parent in a non-working family to obtain work on the basis in particular that an ethic of work within a family inculcated better outcomes for its children.

8

The IA identified the incentivisation of work as the main aim. The ability of parents to escape the cap by undertaking work for not less than the specified number of hours is described by the government as a key exemption and is therefore central to the design of the scheme.

9

The basic argument on behalf of the appellants is that, in introducing the revised cap, the government, through Parliament, has unlawfully discriminated both against the lone parents of young children, whose ability to work is severely curtailed by their childcare obligations, and against the young children of lone parents.

10

In the DA case there are five appellants. Three of them are lone parent mothers. They all care for children of various ages. At the outset of the proceedings the children of two of the mothers included a child aged under two. Those two children then aged under two are the other appellants. Those two mothers had each suffered a reduction in benefits as a result of the revised cap. At the outset of the proceedings the third mother was pregnant.

11

In the DS case there are eleven appellants. Two of them are lone parent mothers. They both care for children of various ages. The first mother cares for five children, each of whom is an appellant. The second cares for four children, each of whom is also an appellant. At the outset of the proceedings none of these nine children was aged under two but three of them were aged under five. Both of the mothers had suffered a reduction in benefits as a result of the revised cap.

12

Both sets of appellants primarily cast their claim of unlawful discrimination under the Human Rights Act 1998 (“the 1998 Act”). Their secondary challenge to the scheme for the revised cap is that, in its application to them, it is irrational at common law; but, if the primary claim fails, the application of the scheme to them will not be irrational so the secondary challenge will not further be addressed.

13

In the DA case the appellant mothers contend

(a) that their entitlement to welfare benefits falls within the ambit of their rights both under article 1 of protocol 1 (“article 1 p 1”) of the European Convention on Human Rights (“the Convention”) and under article 8 of the Convention;

(b) that, in that they have the status of lone parents of children aged under two, they have the right under article 14 of the Convention to claim that their rights under article 1 p 1 and article 8 have not been secured without discrimination;

(c) that under the scheme they are...

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