Supreme Court holds that the revised benefit cap engages ECHR, art 8 but is not discriminatory


Re: R (DA & Ors) v Secretary of State for Work and Pensions; R (DS & Ors) v Secretary of State for Work and Pensions [2019] UKSC 21

This appeal considered whether the application of the revised benefit cap, introduced by the Welfare Reform and Work Act 2016, s 8, to lone parents with children under two years old (i) unlawfully discriminates against parents and/or the children, contrary to ECHR, art 14 with art 8, and/or art 2 of the First Protocol and in breach of the UK’s international obligations under the UN Convention on the Rights of the Child, art 3, and/or (ii) is irrelevant.

The Supreme Court dismissed the appeal by a majority of 5 to 2.

For the majority, Lord Wilson gave the main judgment. The Court held that the cap’s reduction of benefits to well below the poverty line engages the claimant mothers’ and children’s right under ECHR, art 8. However, the Court concluded that the Government could justify the discriminatory rule governing the distribution of welfare benefits because the rule is not manifestly without reasonable foundation. Because the evidence shows that the Government did, as a primary consideration, evaluate the likely impact of the cap on lone parents with young children, the Court held that it had recognised the relevance of the UNCRC in evaluating the interpretation of the ECHR and had therefore justified the benefit cap introduced. It also held the Government’s belief that there are better long-term outcomes for children in households where an adult works to be a reasonable foundation.

Dissenting, Lady Hale agreed with the principles discussed by Lord Wilson, but held that the Government failed to strike a fair balance between the very limited public benefits of the cap and the severe damage done to the family lives of young children and their lone parents. Also dissenting, Lord Kerr held that the manifestly without reasonable foundation test should not be imported into the national court’s consideration of a measure’s proportionality. Rather, he considered that the Government should have to establish that there is a reasonable foundation for its conclusion that a fair balance has been struck. He concluded that a finding that the UNCRC was not breached did not establish the proportionality of the measure.

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