JS & Ors, R (on the application of) v Secretary of State for Work and Pensions & Ors

The benefit cap created by the Welfare Reform Act 2012 and regulations made under it was not manifestly without reasonable foundation. In a state-benefit case, even where a measure has a disproportionate effect on women or other groups, justification is assessed by the stringent but applicable test of whether the measure is manifestly without reasonable foundation.

The best interests of children must be treated as a primary consideration, but need not be treated as paramount or assessed through a separate sequential exercise. A court should also exercise particular caution when reviewing affirmative-resolution regulations implementing economic and social policy. The cap did not breach articles 8 or 14 of the Convention, and the Secretary of State had acquired sufficient information to make a rationally informed decision.

The claimants were three single mothers and the youngest child from each family. They challenged regulations implementing the benefit cap, principally because child benefit, child tax credit and housing benefit were included in the capped benefits and because no adequate exception was made for large families or particular vulnerable groups.

The rolled-up judicial review hearing concerned whether permission should be granted and, if so, whether the regulations were unlawful. The claimants relied on the public sector equality duty, articles 8 and 14 of the Convention read with article 1 of Protocol 1, the United Nations Convention on the Rights of the Child, and common-law irrationality. The public sector equality duty ground was abandoned. The central issues were whether the scheme was discriminatory or disproportionate, whether children's interests had been properly considered, and whether the Secretary of State had sufficiently informed himself of the scheme's effects.

1. Permission and outcome. The grounds were seriously arguable, so permission was granted. The applications were then dismissed.
2. Children's interests. Article 3(1) of the United Nations Convention on the Rights of the Child required the interests of children to be given appropriate weight as a primary consideration. It did not require the Secretary of State to identify those interests first in a separate sequential stage of the proportionality exercise. The evidence and impact assessments showed that the effect on children had been understood, although the Government considered that longer-term changes in welfare dependency could benefit families and children.
3. Articles 8 and 14. The cap engaged the ambit of article 8 and reduced benefits engaged the claimants' article 1 of Protocol 1 rights. The scheme had a disproportionate adverse effect on women, particularly lone parents, but the appropriate justification test in a state-benefit case was whether the measure was manifestly without reasonable foundation: Stec v United Kingdom (2006) 43 EHRR 1017; Humphreys v Revenue and Customs Commissioners [2012] UKSC 18. The cap pursued legitimate economic and social objectives, including fairness, savings and incentives to work. Its harsh consequences and bright-line features did not make it manifestly without reasonable foundation.
4. The possible availability of discretionary housing payments, although insufficient by itself to justify the scheme, was a relevant factor. Article 8 added nothing to the article 14 and article 1 of Protocol 1 analysis. Even if an individual case could involve an article 8 breach, that would not necessarily invalidate the scheme as a whole.
5. Homelessness. Applying R (Best) v Oxford City Council [2009] EWHC 608 (Admin), accommodation supplied in discharge of a full homelessness duty had to be affordable. A person would not ordinarily become intentionally homeless merely because rent had become unaffordable through application of the benefit cap. Local authorities would nevertheless retain a duty to secure suitable accommodation where the statutory conditions were met.
6. Irrationality. The Secretary of State had consulted and had information about domestic violence and temporary accommodation. The complaint was in substance that greater weight should have been given to those matters, but weight was for the Secretary of State. It was not irrational to adopt a different approach for the benefit cap from that governing entitlement to income support for lone parents with young children.
7. Parliamentary scrutiny. The fact that the regulations had been approved by affirmative resolution required considerable judicial caution, particularly because Parliament had debated the central policy choices in the primary legislation. The court would not substitute its view for Parliament's or the Secretary of State's on economic and social policy.