The Secretary of State for Work and Pensions Appellant v R DA and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeSir Brian Leveson P,Sir Patrick Elias,Lord Justice McCombe
Judgment Date15 March 2018
Neutral Citation[2018] EWCA Civ 504
Docket NumberCase No: C1/2017/1930
Date15 March 2018

[2018] EWCA Civ 504







Royal Courts of Justice

Strand, London, WC2A 2LL



( Sir Brian Leveson)

Lord Justice McCombe


Sir Patrick Elias

Case No: C1/2017/1930

The Queen on the Application of DA and Others
The Secretary of State for Work and Pensions Appellant


Equality and Human Rights Commission
First Intervener


Second Intervener

Mr Clive Sheldon QC and Mr Simon Pritchard (instructed by Government Legal Department) for the Appellant

Mr Ian Wise QC, Ms Caoilfhionn GallagherQC and Mr Michael Armitage (instructed by Hopkin Murray Beskine) for the Respondents

Ms Helen Mountfield QC and Mr Raj Desai (instructed by the Equality and Human Rights Commission) for the First Intervener

Mr Martin Westgate QC, Ms Shu Shin Lu and Mr Connor Johnston (instructed by Freshfields Bruckhaus Deringer LLP) for the Second Intervener

Hearing dates: 24, 25 October 2017

Judgment Approved

Sir Patrick Elias



By the Welfare Reform Act 2012, the Government introduced a cap on the amount of benefits which, inter alia, all non-working households could receive. This set a limit to the amount of benefits which, but for the cap, would have been received by these households. The impact of the policy was felt most severely by those households with several children living in areas where the cost of housing is high. The reason was that non-working households would typically be receiving housing benefit to help them meet the cost of accommodation, and the rent — and therefore the benefit required to meet it — would necessarily be greater for bigger families requiring larger accommodation, and for those households living in areas where housing costs are higher, notably London. In addition, child benefit is payable for each child (and possibly other child related benefits too) and so the benefit received will increase with the size of the family. Since the cap applies in the same way irrespective of the number of children in the household, it impacts more severely on large families.


The cap was initially set at £26,000 per annum. This figure reflected the net median earnings of households in work. Although the cap itself was fixed by primary legislation, the detailed rules implementing the policy were left to the Minister to determine and set out in regulations. There are a number of exemptions from the application of the cap. The material exemption in this case is for households in work. Households are exempted from the cap if, in the case of a single parent household, the parent works for at least 16 hours per week and in the case of a couple, they work between them at least 24 hours per week and one partner works for at least 16 hours.


The Government sought to justify the cap on three related grounds of economic and social policy. First, it considered that as a matter of fairness those in work should not on average earn less than non-working households were receiving by way of benefits. It was also thought that if benefits were linked to pay in a fairer and more acceptable way, this would make it less likely that benefit claimants would be stigmatized for taking from the state what might be perceived to be excessive sums of money. Second, the policy was designed to provide an incentive to work. The government considers this to be an important element in its attempt to improve the life prospects for disadvantaged children. It takes the view – and there is much evidence to support this — that the life chances for such children are damaged where they grow up in households where parents have not worked for years and there is no work ethic. For example, they are more likely to have behavioural problems and more likely than children in working households to fail at all stages of their education. In addition, the Government believes that in the longer term the best way to reduce poverty and improve health is work. Third, it was designed to be part of the overall austerity drive to achieve savings in public expenditure considered necessary in the interests of the economic well-being of the country.


The majority of non-working households with children are single parent households, and the vast majority of single parents are women. Not surprisingly, therefore, whilst only a relatively small proportion of single parent households overall were caught by the cap, those adversely affected were predominantly households run by single mothers. The policy therefore gave rise to prima facie indirect sex discrimination, that is discrimination which would be unlawful unless the scheme could be justified.


There was a challenge to the legality of the regulations implementing the original cap brought by three single mothers and their youngest children. The principal basis of the claim was that there was unlawful sex discrimination contrary to article 14 of the European Convention on Human Rights. It was conceded that article 14 was engaged and the issue turned on justification. In that context it was also argued that given the adverse impact of the cuts on the children of single parent households, the Secretary of State was under a duty to comply with article 3.1 of the United Nations Convention on the Rights of the Child (UNCRC) which provides that “In all actions concerning children … the best interests of the child shall be a primary consideration.” The claimants alleged that the Secretary of State had not complied with that duty and that this was material to the question of justification.


The challenge failed in the Divisional Court, the Court of Appeal and by a bare majority in the Supreme Court: see R (SG and others) v Secretary of State for Work and Pensions [2015] UKSC 16; [2015] 1 WLR 1449. The reasoning in that case is central to this appeal and it is analysed in some detail below.


The cap has been further revised by the Welfare Reform and Work Act 2016. This implemented a pledge in the manifesto of the Conservative Party in 2015. By section 8 of that Act the cap has been reduced and is now set at £23,000 for non-working families living in London and £20,000 for those living outside London. Instead of reflecting the net median earning, it represents the wage at the 40% percentile i.e. 60% of households in work will earn more than this and 40% will earn less (although this takes no account of social welfare benefits which many working households receive in addition to their pay). Other features of the scheme have remained essentially the same.


One of the reasons for further reducing the benefit limit in this way was the Government's claim, based on research carried out within the department, that the imposition of the cap had successfully encouraged lone parents in workless households to find work. Although the reliability of the statistic has been strongly challenged (in particular by Mr James Harvey, a specialist in microeconomics), the Government claimed that capped households overall were 41% more likely to move into work after a year than uncapped households. Even so, the actual figures are relatively small: this is an increase of 4.7 percentage points from 11% of people who, it is estimated, would have entered work in any event. It is anticipated that additional economic pressures might achieve better results. Another reason was that it was believed that the original cap disproportionately affected families in London. By far the majority of households brought for the first time within the new cap were from outside London.


There is now a fresh challenge to the validity of the new regulations. As in SG, it is alleged that the regulations as amended discriminate contrary to article 14 of the ECHR. The focus of the challenge is not, however, as far reaching as it was in SG. It is not alleged that the scheme discriminates against women because of its effect on single parent households as a group. Rather it is said that the rules unlawfully discriminate against single parents who have children under two years of age (whether the parents are male or female). Unlike in SG, it is alleged that there is discrimination not only against the parents but also the children themselves. The particular claimants are four single mothers and their children under the age of two. (In the case of one of the claimants, DA, she had not in fact given birth when the claim was brought.) Collins J upheld the judicial review challenge relying heavily upon the Supreme Court decision in SG. The Secretary of State now appeals against that decision. The judge himself granted permission to appeal.

The relevant legislation


The fundamental principle of the benefit cap is described in section 96(2) of the 2012 Act as follows:

“… applying a benefit cap to welfare benefits means securing that, where a single person's or couple's total entitlement to welfare benefits in respect of the reference period exceeds the relevant amount, their entitlement to welfare benefits in respect of any period of the same duration as the reference period is reduced by an amount up to or equalling the excess.”


Although primary legislation lays down the broad principle and the amount of the cap, a wide discretion is given to the Secretary of State as to how the policy is to be implemented. Section 96(4) sets out a range of matters which may be covered by the regulations. For example, they include making provision as to which welfare benefits should be subject to the cap, and they may also provide for exceptions to the application of the cap. Both housing benefit and child benefit have been made subject to the cap.


The relevant regulations under challenge are the Benefit Cap (Housing Benefit and Universal Credit)...

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