UK welfare benefits cap infringes Convention on the Rights of the Child, but still lawful

R (on the application of SG and others (previously JS and others)) (Appellants) v Secretary of State for Work and Pensions (Respondent) [2015] UKSC 16

Summary

By a majority of three to two, the UK Supreme Court held that the Benefit Cap (Housing Benefit) Regulations 2012 (UK), which limited the total amount of welfare payments a beneficiary may receive to an amount equal to the average earnings of working households, was valid despite having a discriminatory impact on women (in particular, single mothers). A different majority of three judges held that the cap breached the United Nations Convention on the Rights of the Child (UNCRC), but only two of those judges found that this was relevant to the question of the discrimination against the mothers and meant that the cap was invalid. The decision reveals a significant range of views on the status and interpretation of the UNCRC in the UK.

Facts

The UK government introduced the concept of a cap on welfare payments in the Welfare Reform Act 2012 (UK). The cap was implemented by the Secretary of State through the Benefit Cap (Housing Benefit) Regulations 2012 (UK) (the Regulations). The Regulations capped specified welfare benefits at an amount equal to the net weekly earnings (excluding any benefits) of a working household. The cap was set at £350 a week for single claimants without dependent children and £500 for other claimants.

The appellants in this case were two single mothers who had suffered domestic violence and each of their youngest children. Their entitlement to benefits had been significantly reduced following the introduction of the cap.

The issue in this appeal was whether the Regulations breached the Human Rights Act 1998 (UK) (HRA) because they discriminated against women in their impact on affected women’s right to the peaceful enjoyment of their possessions (as prohibited by article 14 of the European Convention on Human Rights (ECHR) in conjunction with article 1 of the First Protocol to the ECHR (A1P1)).

It was accepted by both sides that the cap indirectly discriminated against women as it applied to a much greater number of women than men. This is because the majority of non-working households receiving the highest benefits are single parent households and the great majority of these households comprise single mothers and their children. It was not argued that the welfare benefits were not “possessions” under A1P1. The question for the court to determine was whether the discrimination was justifiable and proportionate having regard to its aims. The aims put forward by the Government included:

1. setting a reasonable ceiling on welfare for non-working families to make the system fairer between non-working and working households;
2. providing non-working families with a stronger incentive to work; and
3. reducing government expenditure, particularly in a time of strong budgetary pressures.

Several arguments were raised with respect to the UNCRC. The most significant of these was that article 3(1) of the UNCRC can be taken into account in making the assessment of the proportionality of the cap. The UNCRC has not been specifically incorporated into UK domestic law, but can be relevant as an aid in interpretation of relevant parts of the ECHR and the HRA. Article 3(1) provides that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Decision

The Court held that the cap was valid, dismissing the appeal by a majority of three to two, with each of the judges issuing a separate judgment. The majority (Lords Reed, Carnwath and Hughes) held that the cap was not manifestly without reasonable foundation because the Government’s aims in introducing the cap were legitimate and the cap was a proportionate means for achieving these aims. The resulting gender discrimination was, therefore, justifiable.

The majority held that, in the context of the cap, the rights of the parents were separable from the best interests of their children. Because of this, article 3(1) of the UNCRC did not have a role to play in this case because the alleged discrimination was not against children, but against women.

A different majority of three judges (Lady Hale, Lord Kerr and Lord Carnwath) held that the Secretary of State had failed to show how the Regulations were compatible with the obligation under article 3(1) of the UNCRC to treat the best interests of children as a primary consideration (not just as a factor to take into account). The Regulations, in essence, deprived many of the affected children of basic necessities. Consequently, there had been a breach of article 3(1) of the UNCRC. This majority of judges was scathing in assessing the cap’s impact. Lady Hale stated that the “prejudicial effect of the cap is obvious and stark. It breaks the link between benefit and need. Claimants affected by the cap will, by definition, not receive the sums of money which the state deems necessary for them adequately to house, feed, clothe and warm themselves and their children. … It cannot possibly be in the best interests of the children affected by the cap to deprive them of the means to provide them with … the basic necessities of life.”

Only Lady Hale and Lord Kerr, however, considered that this breach of the UNCRC was relevant to the assessment of the proportionality of the accepted gender discrimination and, therefore, would render the Regulations invalid. In Lord Kerr’s dissent, he stated that “[t]he particular species of discriminatory impact here is on women who, by reason of their position as lone mothers, claim to suffer a disproportionate interference with their Convention rights.”

Lord Kerr went further still, seeing no reason why the UNCRC should not be directly enforceable in UK domestic law even though it has not been specifically incorporated into law by Parliament. In Lord Kerr’s view, “[i]f the government commits itself to a standard of human rights protection, it seems to me entirely logical that it should be held to account in the courts as to its actual compliance with that standard.”

Commentary

This case demonstrates the disputed position of international conventions (and the UNCRC in particular) in UK domestic law. The 5 judgments in this case ranged from viewing the UNCRC as directly enforceable in the UK, to holding that failure to comply with the UNCRC could lead to legislation being invalid on the grounds of gender discrimination against mothers, to seeing the UNCRC as entirely irrelevant to the question of whether single mothers were discriminated against.

The case also illustrates the many different views (including within the UK judiciary) on how the UNCRC obligation to have the best interests of the child as a primary consideration in all actions concerning children can be satisfied. Three of the judges held that the obligation was clearly breached by denying children the basic necessities of life. Despite this, Lord Hughes stated that there was no breach of article 3 because the Government had taken the interests of children into account and made a value judgement – in fact, Lord Hughes specifically noted that the best interests of the child was only “a primary consideration”, and not the paramount consideration as reflected by the formulation in other areas of law (the so-called “paramountcy principle”).

In the Australian context, the applicability of the UNCRC and other international conventions in domestic law is more limited. Laws in the ACT and Victoria mandate that, as far as possible, laws must be interpreted consistently with human rights and international law may be considered in performing this interpretation (see Human Rights Act 2004 (ACT) sections 30 and 31; Charter of Human Rights and Responsibilities Act 2006 (Vic) section 32). So, the UNCRC can have a direct role to play in interpreting relevant Victorian and ACT laws, but only where there are multiple interpretations open (see Momcilovic v The Queen (2011) 245 CLR 1). In the other Australian jurisdictions, international conventions such as the UNCRC may also be taken into account where there is ambiguity in the interpretation of a law (see, e.g., Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273).

This case provides fascinating reading around interpretation of the UNCRC and its interaction with laws allegedly discriminating against mothers, but it cannot be directly applied in Australia because of a fundamental difference between UK and Australian law: namely the fact that no Australian jurisdiction empowers a court to declare legislation invalid simply for infringing human rights.

The full text of the decision can be found here.

Phil Marr, Solicitor at King & Wood Mallesons.