Court of Appeal rules in favour of DWP in benefit cap challenge


Re: R (DA & Ors) v SSWP [2018] EWCA Civ 504

The appellant secretary of state appealed against the decision that the revised welfare benefit cap was discriminatory and unlawful in relation to lone parents with children under the age of two and the children themselves.

The Court of Appeal overturned Collins J’s decision. At least one of the purposes of housing benefit was to enable families to live together in appropriate accommodation. Since the cap was designed to encourage single parents to work and to prejudice them if they did not, it potentially infringed ECHR, art 8. The interests of the children under the age of two could not, however, sensibly be treated as separate from the interests of their parents. They had no independent private life and their family life was inextricably intertwined with that of their parents; their claims fell within the ambit of art 8 only because their parents’ claims did. The imposition of the cap also affected the parents’ property rights so as to engage Protocol 1 art 1.

The evidence did not support the proposition that the cohort of lone parents with children under the age of two in practice faced substantially greater difficulties than lone parents with older children in obtaining work, nor that it was virtually impossible for them to go to work because of their child care responsibilities. There was no unlawful discrimination (ECHR, art 14) arising from the failure to exempt lone parents with children under two from the revised cap.

As per the UN Convention on the Rights of the Children, art 3, the court found this to be “more problematic, not least because of the difficulty navigating through the decision in R (SG and others) v Secretary of State for Workand Pensions [2015] UKSC 16. In the event, again for the reasons explained by Sir Patrick, I do not consider that art 3 is engaged in this case any more than it was held to have been engaged in SG “.

McCombe LJ dissenting said he would have upheld the Collin J’s decision on finding that there been “Thlimmenos discrimination in the instant case. There was force in the respondents’ contention that they faced specific difficulties in obtaining child care, including the higher cost and lower availability of such care for children under two. There was a wealth of material from witnesses with first-hand experience of the problems of parents within that particular class affected by the cap. In relation to the question of justification, the judge had been entitled to hold that the failure to comply with art 3 of the UNCRC invalidated the cap”.

The Court of Appeal granted permission to appeal to the Supreme Court.

Raj Desai and Helen Mountfield QC were involved in this case.