Benefit cap breaches children’s rights, says Supreme Court

Published on: 
18 March 2015

Supreme Court judges have criticised the Government’s benefit cap for breaching international law on the rights of children. However, the Court declined to overturn the controversial policy, leaving the issue to be settled “in the political, rather than the legal arena”.

The benefit cap, introduced in 2013, limits the benefits an out-of-work family can receive, including housing benefit and benefits for children, to £500 per week. It is applied regardless of family size or circumstances such as rental costs. The appeal was brought by two lone mothers and their children who fled domestic violence and were threatened with homelessness as a result of the cap. CPAG intervened in the case.

In a sharply divided judgment, three of the five judges found that in introducing the cap, the Government failed to comply with the UN Convention on the Rights of the Child, which requires the best interests of children to be paramount. They said that the cap deprived children of “the basic necessities of life” and made them “suffer from a situation which is not of their making and which they themselves can do nothing about”.

However, a majority found that the policy did not breach Article 14 of the European Convention on Human Rights, which prohibits discrimination. The European Convention is incorporated into UK law, while the UN Convention is not. As a result, the appeal was dismissed.

The judgment leaves the benefit cap policy intact, but puts pressure on the Government to reconsider its compliance with international law. Lord Carnwath – who provided the crucial swing vote dismissing the appeal - said nevertheless that he hoped the Government would address the breaches of children’s rights in its review of the benefit cap.

The judges referred to CPAG’s evidence that the cap disproportionately affects women and children; that it is unnecessary because families in work are already better off than families out of work and that the money saved is “marginal at best”. Lady Hale said: “As CPAG point out, the Government accepted in its grounds of resistance to the claim that ‘the aim of incentivising claimants to work may be less pertinent for those who are not required to work’ (such as parents with young children)”.

Commenting today, Alison Garnham, Chief Executive of the Child Poverty Action Group, said:

“The women and children involved in this case were escaping horrific abuse. As three of the judges have said: ‘It cannot be in the best interests of the children affected by the cap to deprive them of the means of having adequate food, clothing, warmth and housing’. We hope the Government will listen to the Court and comply with international law on the protection of children.”

The mothers were referred to anonymously as Ms SG and Mrs NS because of fears their former partners could identify them.

SG is a single mother with six children, the youngest of whom is 4. She left her husband because he was abusing her and her eldest daughter. She and her children now live in an overcrowded two-bedroom flat in East London, where they can be close to their Orthodox Jewish Community. Mrs SG found work for a short period but was unable to sustain it because of the demands of care proceedings and the need to care for her younger children. After rent, the benefit cap left her and her children with £80 to live on per week.

NS is a single mother with three children, aged 4, 11 and 12. The Court referred to “a long history of sexual abuse and domestic violence within her marriage, much of it witnessed by the children”. They now live in a two-bedroom flat in outer London but after the benefit cap they face a shortfall of around £50 per week in their rent. The local authority has ordered the father to stay away from the home because he is a risk to the children, but at one point lack of money meant NS had to turn to him for help with transport when one child suffered an accident requiring surgery and the two others became ill.

The families were represented by law firm Hopkin Murray Beskine.

In her judgement Lady Hale said: “Families in work are already better off than those on benefits and so the cap is not necessary in order to achieve fairness between them; saving money cannot be achieved by unjustified discrimination; but the major aim, of incentivising work and changing the benefits culture, has little force in the context of lone parents, whatever the age of their children. Depriving them of the basic means of subsistence cannot be a proportionate means of achieving it.”

Lord Kerr said: “It cannot be in the best interests of the children affected by the cap to deprive them of the means of having adequate food, clothing, warmth and housing”.

Lord Carnwath said: “The cap has the effect that for the first time some children will lose these benefits, for reasons which have nothing to do with their own needs, but are related solely to the circumstances of their parents…. I would hope that in the course of their review of the scheme, the government will address the implications of those findings in relation to article 3(1) itself.”

Notes to Editors:

(1) More about the case and CPAG’s skeleton argument.

The Supreme Court judgment and press release.

Murray Hopkins press release.

  • CPAG is the leading charity campaigning for the abolition of child poverty in the UK and for a better deal for low-income families and children.
  • CPAG is the host organisation for the Campaign to End Child Poverty coalition, which has members from across civil society including children’s charities, faith groups, unions and other civic sector organisation, united in their campaigning for public and political commitment to ensure the goal of ending child poverty by 2020 is met.

For further information please contact:

Jane Ahrends

CPAG Press and Campaigns Officer

Tel. 020 7812 5216 or 07816 909302

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