“Benefit cap” legislation survives the Court of Appeal – now for the Supreme Court

15 Mar 2018

The Court of Appeal today handed down its long-awaited judgment in R (DA & Others) v Secretary of State for Work and Pensions. The claim relates to a challenge to the lawfulness of the “benefit cap” legislation on the grounds that it unlawfully discriminates against, and hence breaches the human rights of, lone parents of children under two years old, and such children in their own right. A challenge to an earlier version of the benefit cap went all the way to the Supreme Court  but a narrow majority of the Supreme Court judges held that it did not discriminate against lone parents (and hence women) even though the majority of the Supreme Court judges did find that the cap breached the United Kingdom’s international obligations in relation to the welfare of children under the UN Convention on the Rights of the Child (UNCRC). Today’s judgment of the Court of Appeal concerns the judicial review challenge to the revised, and significantly harsher, benefit cap legislation. The High Court held that the new cap did indeed discriminate unlawfully against lone parents of children under two years old (and such children), concluding that the cap had caused “real misery to no good purpose” (see here).

The Court of Appeal, by a majority of two to one, has overturned the High Court judgment based in particular on a different interpretation of the judgment in SG. The Court of Appeal did however consider that the High Court was entitled to find that the revised cap was again in breach of the UK’s obligations to children under the UNCRC. In addition, recognising the real public importance of the issues raised, the Court of Appeal has taken the unusual step of granting permission to appeal to the Supreme Court against its own judgment. This means that the lawfulness of the benefit cap is going to be considered again at the very highest level of the judicial system.

A link to the judgment of the Court of Appeal is available here.

Monckton Chambers’ Ian Wise QC and Michael Armitage acted for the claimants/respondents, instructed by Rebekah Carrier of Hopkin Murray Beskine LLP.