R (DS and Others) v Secretary of State for Work and Pensions  UKSC 21
This case concerned a judicial review challenging the revised, lower benefit cap, introduced in 2016. The appeal was brought on behalf of two single mothers who are affected by the cap due to their caring responsibilities. One of the claimants has children with significant health needs while the other has previously fled domestic violence. The appeal in this case was heard on 17-19 July 2018 by a 7 judge panel of the Supreme Court alongside that of R(DA and Others) v SSWP. Judgment was given on 15 May 2019 finding that cap did not unlawfully discriminate against lone parents with children under 5 and their children. Read our press release.
CPAG is now considering taking this matter to the European Court of Human Rights in Strasbourg. We are looking for new claimants for this next step of the challenge and would appreciate referrals via our test case referral form of suitable families affected by the cap, particularly where there is no DHP in place. We need families where the youngest child is at pre-school age.
The original cap on benefits was introduced in 2013 and was set at £26,000 for a couple or a lone parent regardless of the number of children in the family (the Original Cap). CPAG intervened in a case which went all the way to the Supreme Court against the Original Cap in the case of R (SG) v Secretary of State for Work and Pensions (Child Poverty Action Group and another intervening), heard in April 2014. By a majority of 3 to 2 the Supreme Court upheld the Original Cap.
The level of the cap was revised with effect from 7 November 2016, reducing the overall level of benefits (the Revised Cap). The Revised Cap is set at different levels depending on where the claimant lives: it is set at £23,000 for couples/lone parents in Greater London and £20,000 for couples/lone parents outside the capital.
The Revised Cap was expected to significantly increase the number of households affected by a cap. According to the government’s own impact assessment 88,000 households overall, comprising at least 244,000 children were expected to be affected which is 64,000 more households, and approximately 161,000 more children, than the Original Cap. The Revised Cap disproportionately impacts on lone parents and their children, who are far more likely to be capped (over 70% of all capped families are lone parents) and are least likely to be able to avoid its effects due to their caring responsibilities. Evidence shows that the Revised Cap has a stark adverse effect on vulnerable non-working families.
R (DS and Others) v Secretary of State for Work and Pensions
The two claimants in the revised cap case were based outside of London and were both single mothers. One of the claimants had five children; the youngest of these was 3 years old at the time the family became subject to the Revised Cap and a number of the children suffer from long-term medical conditions. The total amount of her benefits (income support, child tax credit, child benefit and housing benefit) meant that she was over the weekly limit of the cap (£384.62) even before housing benefit was taken into account. Accordingly, her housing benefit was reduced to a nominal 50p a week whereas her actual rent was £480 per month. The other claimant had four children, with a youngest child aged 2 years old at the time she became subject to the Revised Cap, and had previously fled domestic violence. The total amount of her benefits meant that she was not subject to the Original Cap. However she was over the limit of the Revised Cap and saw her housing benefit reduced by £81 per week.
At the time of the proceedings, neither of the claimants was able to work a sufficient number of hours (16 hours for lone parents) to avoid the application of the Revised Cap due to their caring responsibilities. Both claimants were relying on discretionary housing payments to meet the shortfall of their rent, topped up in the case of one of the claimants by child maintenance payments which would otherwise go towards expenditure on the children.
The claimants argued that the Revised Cap discriminates against lone parents (whatever the age of their youngest child) and their children. In the alternative, they argued that it discriminates against lone parents with children under 5 and their children; alternatively lone parents with children under 3 and their children. They argued that this is in breach of the SSWP’s obligations under the European Convention on Human Rights and is irrational.
Related case - DA & Others v SSWP CO/379/2017
Hopkin Murray Beskine (HMB), who brought the original benefit cap challenge in SG, also issued a claim against the Revised Cap in February 2017 on behalf of a lone parent . HMB’s challenge to the revised benefit cap was based on a similar argument that the Revised Cap unlawfully discriminates against the lone parents and their children albeit that their argument was confined to lone parents with children under two. Their case was heard before Justice Collins in the High Court on 18 and 19 May 2017 and the judgment in DA & Others v SSWP CO/379/2017 was given on 22 June 2017 in favour of the claimants. The SSWP appealed this decision and the matter was heard by the Court of Appeal on 24 October 2017. The judgment of the Court of Appeal was given on 15 March 2018, allowing the SSWP's appeal but granting permission for the families to appeal to the Supreme Court. The two cases were heard together in the Supreme Court on 17-19 July 2018 (link to judgment above).