The benefits cap has been slammed by Mr Justice Collins as operating to unlawfully discriminate lone parents with children under the age of two in the judicial review challenge in DA and Others v Secretary of State for Work and Pensions  EWHC 1446 (Admin).
The benefit cap, which limits the total amount households can receive in benefits to £20,000 a year, or £23,000 in Greater London, was envisaged as an “incentive” to persuade unemployed people to move into work.
Claimants are required to work a minimum 16 hours a week if they want to avoid the benefit cap.
In DA the challenge was brought by a group of parents with at least one child under two years of age.
Shelter, as intervener, provided evidence demonstrating that those affected by the cap suffered severe financial hardship [18-19]. It also provided evidence on the lack of affordable accommodation. This has seen an increase in homelessness. These families are often placed in accommodation which is not affordable and which exposes them to a greater risk of homelessness. If someone falls into arrears due to lack of affordability, and is subsequently evicted, they are at risk of being deemed to have made themselves “intentionally homeless” under Part VII, section 191, Housing Act 1996 if they approached the local authority for accommodation under the homelessness provisions.
Shelter also revealed that measures designed to mitigate the impact of the cap such as Discretionary Housing Payments (‘DHP’) were insufficient and ill managed.
The challenge showed that the welfare state does not sufficiently provide for children in this age bracket when it comes to free child care. As a result, lone parents have found it difficult to juggle working the minimum of 16 hours a week just to avoid the benefit cap whilst also securing childcare, at a cost.
Whilst it is not stipulated in the policy that lone parents should work, Mr Justice Collins said in his judgment that the policy visited “real misery to no good purpose” on lone parents with very young children who were subject to the cap.
Justification for the benefits cap
According to the government, the justification was three pronged.
- First, to secure the economic well-being of the country.
- Second, to incentivise work.
- Third, to impose a reasonable limit on the amount a household could receive by way of welfare benefits.
Focusing on the second reason, the Claimants argued that this does not apply to lone parents with children under the age of two. They are caught in the middle. Do they work, evade the cap and pay for childcare or do they not work, do not have to worry about paying for childcare but be subjected to the benefit cap. The Claimants relied on the realities of bringing up children under two years of age :
- Childcare for children under two is more expensive;
- It is difficult to find nurseries or child carers who are prepared to look after very young children;
- Mothers are encouraged to breastfeed their children which makes it difficult if not impossible to enter work for the 16 hours needed to avoid the cap.
When addressing the purpose behind the cap and reasons for it, Mr Justice Collins stated at  that:
The defendant relies, as we have seen, on the need to incentivise parents to work so that children do not suffer from living in workless families. It is difficult to see how that is realistic in relation to children under two. It is surely in their interests that they should have adequate food, shelter, warmth and care since deprivation of such will produce much greater harm.
Discrimination under the European Convention on Human Rights
Pursuant to Articles 8, 14 and Article 1 Protocol 1 of the European Convention on Human Rights (ECHR) the Claimants stated that this policy constituted unlawful discrimination.
As confirmed by Lady Hale in Humphreys v HMRC  UKSC 18, the test to be applied in this case concerning discrimination in respect of state benefit, is whether the difference in treatment is manifestly without reasonable foundation.
Mr Justice Collins accepted that there was very powerful evidence of the damaging effect of the cap on lone parents . He emphasised that this does not necessarily mean it is unlawful. He recognised that Article 14 of the EHCR is engaged, as is Article 1, Protocol 1.
However, applying the test set out in Humphreys, he confirmed the Claimants should succeed. He stated at :
Whether or not the defendant accepts my judgment, the evidence shows that the cap is capable of real damage to such as the claimants. They are not workshy but find it, because of the care difficulties, impossible to comply with the work requirement. Most lone parents with children under two are not the sort of households the cap was intended to cover and, since they will depend on DHP, they will remain benefit households. Real misery is being caused to no good purpose.
 DHP are provided for by Sections 69 and 70 of the Child Support Pensions and Social Security Act 2000. Section 69 empowers the authorities to make payments “by way of financial assistance (“DHP”) to persons who:-
(a) are entitled to housing benefit or council tax benefit or both [or to universal credit] and
(b) appear to an authority to require some further financial assistance (in addition to the benefit or benefits to which they are entitled) in order to meet housing costs.”