R (JS) v Secretary of State for Work and Pensions [2015] UKSC 16

KEY POINTS

• The introduction of the benefit cap by the Secretary of State marks a significant shift in welfare policy aimed at managing the overall expenditure on benefits and incentivizing employment.

  • This policy reflects a strategic approach to welfare reform, with the goal of creating a more sustainable and equitable benefits system.

  • The Secretary of State’s role involves overseeing the implementation of this policy and addressing any challenges or criticisms that arise from its application.

• The regulations implementing the benefit cap have led to differential treatment between men and women, primarily due to the higher proportion of women in non-working lone-parent households who are recipients of benefits.

  • This differential impact raises concerns about gender equality and the fairness of the policy, as it may disproportionately affect women by limiting their financial support more than it does for men in similar situations.

• The Children’s best interests test evaluates policies affecting children, but its applicability in cases involving gender discrimination in legislation may be limited.

  • When assessing legislation that discriminates between men and women, it is important to consider whether the best interests of children are adequately addressed and whether the policy is justified in terms of its broader impact on gender equality.

• The Housing Benefit Regulations 2006, as amended by the Benefit Cap (Housing Benefit) Regulations 2012, establish the framework for housing benefit provision and the implementation of the benefit cap.

  • Part 8A of the regulations outlines the cap's application and impact on housing benefit claims.

  • These regulations are central to understanding how the benefit cap affects housing support and its compliance with legal standards.

FACTS

• Under section 96 of the Welfare Reform Act 2012, the Secretary of State for Work and Pensions introduced Part 8A into the Housing Benefit Regulations 2006 through the Benefit Cap (Housing Benefit) Regulations 2012.

  • This new part established a benefit cap that reduced housing benefits if total welfare benefits exceeded a specified amount equivalent to the net median earnings of working households.

• Claimants ("Claimants")

  1. JS (through his litigation friend, MG),

  2. JS's mother, MG,

  3. SG,

  4. SG's son, JK (through his litigation friend, SG),

  5. NS and

  6. NS's daughter, MS (through her litigation friend, NS)

• And including a mother and youngest child from three lone-parent families, challenged the lawfulness of these amended Regulations through judicial review.

• They argued that including child-related benefits in the cap and not exempting lone parents with several children indirectly and unjustifiably discriminated against women, violating Article 14 of the European Convention on Human Rights and Article 1 of its First Protocol, as well as failing to consider the best interests of children as required by article 3.1 of the UN Convention on the Rights of the Child.

• It was acknowledged that the Regulations indirectly caused differential treatment of men and women, as most non-working households receiving the highest benefits were lone-parent households, predominantly led by women. Additionally, the benefits could be considered "possessions" under Article 1 of the First Protocol.

• The Divisional Court and the Court of Appeal dismissed the claim, ruling that the benefit cap was justified and that the Secretary of State had adequately considered the best interests of children.

• The Claimants appealed to the Supreme Court, arguing that compliance with Article 3.1 of the UN Convention was crucial to determining the justification of the Regulations.

JUDGEMENT

• The appeal was dismissed (Baroness Hale of Richmond DPSC and Lord Kerr of Tonaghmore JSC dissenting).

• It was established that a violation of Article 14 of the Convention occurred when unjustified discriminatory treatment occurred in similar situations.

  • The legislature’s policy choices, including welfare reforms, were respected unless manifestly unreasonable.

  • The Government's justification for the benefit cap—fiscal savings, incentivizing work, and limiting benefits—was not manifestly without foundation.

• The UN Convention on the Rights of the Child was relevant only to children’s rights, not to gender discrimination claims under Article 1 of the First Protocol (A1P1).

  • Even if the Secretary of State had not fully complied with the obligation of Article 3.1, it did not affect the assessment of gender discrimination under A1P1.

• The established test of "manifestly without reasonable foundation" applied, and the benefit cap’s discriminatory effect was justified. Therefore, there was no violation of Article 14 of the Convention read with A1P1.

• Per curiam: No case was made for separate treatment of domestic violence victims.

• The Court of Appeal’s decision was affirmed.

Lord Hughes JSC

• Article 8 rights did not extend to requiring benefits or housing provision, so the benefit cap did not infringe them.

COMMENTARY

• Judgment is an important aspect of the jurisprudence of human rights law in the United Kingdom.

  • It raises significant questions about the enforceability and influence of international human rights conventions, specifically the United Nations Convention on the Rights of the Child (UNCRC), within the domestic legal framework.

  • A critical aspect of this judgment is its emphasis on the UNCRC, specifically Article 3.1, which mandates that the best interests of the child be a primary consideration in all actions concerning children.

  • The case shows that this principle should inform domestic law, particularly in policies that directly impact children, such as the benefits cap.

  • The judgment reveals a judicial recognition that international conventions, even if unincorporated, can and should inform the content and interpretation of domestic rights.

• This case shows the judiciary's role in holding the government accountable to its international commitments, ensuring that policies and laws align with the standards the UK has pledged to uphold.

• It is a call for a more holistic and principled approach to human rights, one that respects and protects the fundamental rights of all individuals, especially the most vulnerable.