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The Benefit Cap: Disregarding a Child’s Best Interests

About The Author

Sophie Cole-Hamilton (Writer)

Sophie is a second year law student at the University of Birmingham. Sophie aspires to qualifying as a solicitor, with an interest in all areas of private law. Outside of her studies, Sophie is part of the Birmingham Law School pro bono group and has a passion for writing.

In recent years, benefit claimants within the UK have been heavily scrutinised and received negative attention from the media and general public alike. The popular television show Benefits Street represents the views of some of the population that we are living with a welfare system abused by ‘scroungers’ and benefit tourists. The show received varied responses from the public, with many complaints being made to Ofcom. Upon its release, some criticised the show for scaremongering and dismissed it as ‘poverty porn’, whilst others argued it showed stricter policing needed to be employed within the benefits system. The welfare state generates strong opinions from across the political sphere, with the main political parties’ social security policies being at the forefront of the debate surrounding the upcoming general election.

Political Considerations

It is thus somewhat unsurprising that the ‘benefit cap’ has proved to be one of the Coalition government’s most popular yet controversial policies since it was introduced within Section 96 and 97 of the Welfare Reform Act 2012 and implemented by the Benefit Cap (Housing Benefit) Regulations 2012. The benefit cap limits the amount of out-of-work benefits (including child and housing benefit) that a household is able to claim. Under the cap, benefits are limited to £350 a week for a single-adult household without children and £500 for all other claimants. This cap is irremovable unless the benefit claimant works for a minimum of 16 hours per week.

If the Conservatives are re-elected in next month’s election, they propose to further reduce the annual cap on household benefits from £26,000 to £23,000. Labour assert that the Conservatives have taken the wrong approach in attempting to reform the benefits system while making job cuts in the public sector, arguing the creation of jobs should precede the restructuring of the benefits system. Despite this, Labour have stated that if they are elected, the benefit cap will remain at £26,000 per annum, but they will review whether further reduction is necessary in some areas.

The Economic Realities

The Coalition government have stated the benefit cap is necessary in limiting the support given to non-working households by public expenditure. They argued its introduction would provide such claimants with a greater incentive to work while simultaneously reducing the deficit. The Department for Work and Pensions asserts that prior to the cap, it was possible for households to claim up to £74,000 in benefits per annum. It is estimated the benefit cap has saved the economy £225 million in reduced benefits payments over the last 2 years, an obvious success for a government that aimed to reduce the deficit.

Despite the economic advantages of the benefit cap, many families have struggled to make ends meet since its introduction and are living in acute poverty. Over 55,000 households have had their benefits capped since the law came into force in April 2013, with 45% of those claimants residing in London where the cost of living is, of course, significantly higher. Further to this, 62% were single parents and a third of those affected have five or more children.

In particular, the benefit cap can result in significant hardship for larger families, given the way in which it operates. Because the cap is assessed by looking at a household’s total benefit income, the total housing benefit received by such a household is reduced where it is at risk of going over the cap. Thus, since the introduction of the cap, benefit claimants have often had to cut back on provisions for their children in order to afford to pay rent and council tax. Although the annual benefits income for claimants affected by the cap does not seem like a small amount prima facie, once all living costs are taken into account, only a small amount of the money remains; this results in widening the poverty gap further.

The benefit cap has also been proven to affect more women than men. The majority of non-working households with the highest level of benefits are single parent households, and the majority of single parents are women. Therefore, it can be concluded that those most affected by the benefit cap are single-parent families led by women living in London.

The Supreme Court’s Judgment

The  disproportionate impact of the benefit cap on this group was the subject of a case recently brought before the Supreme Court by two single-parent benefit claimants: R (on the application of SG & others) v Secretary of State for Work and Pensions. The first female claimant, known as SG, lives in a two bedroom flat in east London. After housing costs are paid, she has only £80 a week for her and her six children to live on. The second female claimant, NS, has three children and left her partner after being subjected to domestic abuse over a prolonged period. They also live in a small two bedroom flat in London and have lost £50 a week as a result of the cap. Neither of the claimants are British born, thus the language barrier makes it harder for either claimant to find 16 hours of work and rid themselves of the benefit cap.

The claim was brought on the basis that the introduction of the benefit cap was in breach of the Human Rights Act 1998 (which incorporates the European Convention on Human Rights into domestic law), by indirectly discriminating against women and their right to the peaceful enjoyment of their possessions. This provision is pursuant to Article 14 of the European Convention on Human Rights (ECHR) which states:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The appeal was dismissed in part by a majority of 3-2 in the Supreme Court, with Lady Hale and Lord Kerr delivering dissenting judgments.

In an effort to avoid blurring the separation of powers between parliament and the judiciary, the Supreme Court did not declare the benefit cap unlawful. However, all judges agreed that the benefit cap could be potentially breaching the United Nations Convention on the Rights of the Child (CRC). The CRC was established in 1988 to afford children (i.e. those aged 17 or under) the same rights worldwide, working in line with Article 8 of the European Court of Human Rights.

As a result of the CRC, children are now seen as persons with a distinct and individual set of rights, rather than being viewed as passive, dependant objects. The CRC contains 54 articles stating the economic, political, civil, cultural and social rights of the child and how policymakers and parents should seek to abide by these provisions. Such rights include making policy decisions that are in the best interests of the child and not discriminating against children either directly or indirectly. Under the CRC, the government has a responsibility to protect such rights.

After the agreement was signed in 1990, the CRC came into force in the UK in 1992. Therefore, despite the CRC not being implemented fully into English law by statute, all policy decisions must comply with the CRC’s provisions on account of the UN agreement. The CRC is a worldwide institution, with all UN countries aside from the USA and South Sudan having implemented its provisions.  

As a signee of the CRC, the Supreme Court in R v Secretary of State for Work and Pensions should have considered the UK’s obligations under the CRC. Despite this, the majority judges within the case failed to give weight to the CRC in considering whether the benefit cap was in the best interests of children, instead focusing on the advantages the cap had on strengthening the UK’s economy and cutting the deficit. Given the CRC is not fully ratified into English law, a mere consideration of its provisions was all that was necessary and all that was given by the majority judges.

The Majority Reasoning

The majority judges, with the lead judgment being given by Lord Reed, agreed that the benefit cap was ‘necessary and proportionate’ in meeting legitimate aims, namely reducing the deficit. They took a largely unsympathetic view toward the claimants’ hardships, with Lord Reed sticking rigidly to the separation of powers philosophy in order to justify his reasoning.

The ‘necessary and proportionate’ test follows from the ECHR case of Carson v UK, where it was held that in order for Article 14 of the ECHR to be breached, there must be a difference in the treatment of persons in analogous or relevantly similar situations. In Carson, the court held that such a treatment would be viewed as discriminatory where it has no objective and reasonable justification, and therefore fails to pursue a legitimate aim.

In the later judgment of Sidabras v Lithuania, a ‘legitimate aim’ was defined as government policy which attempts to protect ’national security, public order, the economic well-being of the country and the rights and freedoms of others’. The appellants in R v Secretary of State for Work and Pensions argued the benefit cap could be measured in a manner less discriminatory toward female-led single parent families. This could be achieved by setting the benefit cap at the average income of working households inclusive of in-work benefits, rather than by average earnings exclusive of benefits. Despite such arguments, Lord Reed stressed within his judgment that as the Welfare Reform Act referred specifically to ’earnings‘, it could not be interpreted and applied to the current case in any other way.

Lord Reed also referred to the general aims of the benefit cap: although he accepted the cap only goes a small way in reducing the deficit, he argued it still made progress in reducing government expenditure. Further, Lord Reed also argued the benefit cap served a purpose in changing benefit claimants’ behaviour over time; a reference to the apparent pandemic of state ‘scroungers’ residing within the UK.

Lady Hale’s ‘Best Interests’ Approach

Within her dissenting judgment, Lady Hale focussed largely on the rights of the child under the CRC and argued the benefit cap was in breach of such interests. Lady Hale’s comprehensive judgment is worthy of high praise for its thorough recognition of the child’s best interests under the CRC, and at the very least provides food for thought on the next government’s approach to the benefits cap.

Lady Hale focused on the claimants’ financial circumstances in light of the cap, stating that the link between benefit and need had been severely broken. She stated that the need for benefit claimants to receive money to feed, house and clothe themselves and their children is increased where another child comes to live in the household, as was the case with the appellant SG. SG had a son living in Belgium whom she hoped to gain custody of. If she were successful, her 12 year old son would be living in the cramped two-bedroom flat with his mother and siblings, with SG receiving no further benefits for her extra child. Lady Hale therefore asserted that the greater the need in such circumstances, the greater the adverse effect when such families’ needs were not substantively met.

Lady Hale further stated that the 16 hours per week of paid work required for the benefit cap to be removed was significantly more difficult to obtain where the benefit claimant was a single parent with daily childcare duties, and was therefore indirectly discriminatory. Lady Hale asserted that the responsibilities of a single parent included taking children to school, looking after them when they were ill and arranging for appropriate childcare during the school holidays, all of which had to be taken into account when employing such an individual. It is worth highlighting here that the Coalition government may have hit a contradictory tension in attempting to reduce the deficit while encouraging benefit claimants into work. By removing the benefit cap for claimants who work 16 hours a week, the savings anticipated may be reduced rather than increased.

Lady Hale therefore asserted that such considerations were not taken into account by the Coalition government in their implementation of the benefit cap, and criticised in particular the disproportionate effect the cap was having on women and victims of domestic abuse, many of whom are women. Thus, the benefit cap deprives children, particularly those in larger families, of the provision of their basic needs by discriminating against their parents and impacts negatively upon their lives.

The benefit cap can also result in families being discouraged from living together: where a couple with children is claiming benefits, it can be more beneficial for one partner to live elsewhere, having their own separately capped benefits of up to £350 a week, which they can then contribute on top of the other parent’s benefits to help the family make ends meet. This allows the partner to contribute more financially, but negatively affects family life by splitting a family between two households. Before full implementation of the benefit cap this was predicted to occur, and has since become a prevalent theme. Taking all of this into account, and in order to tackle the clear inequality and child poverty that results from the cap, Lady Hale suggested a declaration of indirect discrimination should be made in line with Article 14 of the ECHR.

In contrast, Lord Reed failed to acknowledge the interests of the child in light of the benefit cap, stating that the CRC was irrelevant in discussing the possibility of indirect discrimination of women by breaching their right to personal enjoyment of their possessions. By respecting the notion of separation of powers and dismissing children’s best interests, the majority judges surpassed discussing the problems the benefit cap causes for larger and single parent families in providing for children’s basic needs while also being able to pay rent and council tax. They have therefore failed to get to the root issue of the case.

The judgments within R v Secretary of State for Work and Pensions provide a raw insight into the poverty some of those affected by the benefits’ cap are currently experiencing. Despite the Supreme Court’s dismissal of the appeal, the controversy of the case means it is likely this will not be the last we hear of it or of similar claims. If indeed similar claims are brought, the courts could receive mounting pressure to declare the benefit cap unlawful, although given the strict separation of powers approach taken in Lord Reed’s lead judgment, it is likely this will be followed in future cases. Given the decision’s potential conflict with the UNCRC and the general election fast approaching, there is a high chance this case could eventually reach the European Court of Human Rights. The CRC is unlikely to be fully ratified into English legislation in the near future despite Lady Hale’s warnings regarding the child’s best interests and with the current political hostility toward the Human Rights Act, EU and supranational law, this possibility is even less likely. If the CRC was ratified into English law, it is likely R v Secretary of State for Work and Pensions would have reached a different outcome, more akin to considering the child’s best interests. Nevertheless, scrutiny of the UK welfare system will increase further in the coming weeks, and it is particularly likely that the debate surrounding social security policies will become ever more heated.

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Tagged: Family Law, Housing Law, Human Rights

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