DA & Ors, R (On the Application Of) v Secretary of State for Work and Pensions

Indirect discrimination in the provision of welfare benefits must be justified by reference to the particular group adversely affected. Parliamentary consideration and legitimate policy aims do not answer a failure to engage with the circumstances of a distinct and vulnerable cohort. Where benefit reductions affect children’s private and family life, Articles 8 and 14 of the ECHR may be engaged. The test is whether the difference in treatment is manifestly without reasonable foundation. The best interests of children must be treated as a primary consideration under Article 3.1 of the UNCRC. A work incentive cannot provide a reasonable justification where lone parents of children under two cannot realistically satisfy the work condition and the available safeguards do not adequately protect them.

Four lone parents and three children challenged the revised benefit cap introduced by the Welfare Reform Act 2012, as amended by the Welfare Reform and Work Act 2016, and implemented through regulations reducing housing benefit. The claimants were lone parents with children under two, including children affected by domestic violence, insecure housing, poverty and inadequate childcare.

The challenge alleged indirect discrimination against women, unjustified interference with Convention rights and failure to consider the best interests of young children. The court considered the earlier Supreme Court decision in R(SG and others) v Secretary of State for Work and Pensions [2015] 1 WLR 1449, the revised statutory scheme and the adequacy of employment support, childcare assistance and discretionary housing payments. The central issue was whether applying the cap to this narrower group was manifestly without reasonable foundation.

1. Claim allowed. The revised benefit cap was unlawful as applied to lone parents with children under two. The court would hear further submissions on appropriate relief.

2. The cap pursued legitimate aims, including economic well-being, incentivising work and imposing a reasonable limit on welfare benefits. Those aims did not remove the need to examine the particular impact on the claimant cohort. The parliamentary material and equality analysis did not specifically assess whether lone parents with children under two could realistically enter work.

3. The court applied the manifestly without reasonable foundation test to the indirect discrimination. The work requirement of 16 hours a week was unrealistic for many lone parents caring for children under two because of breastfeeding, the cost and availability of childcare and the need to provide proper care.

4. Discretionary housing payments did not provide an adequate safeguard. The evidence showed that awards were generally short-term, uncertain and subject to finite local-authority funds. Private landlords were also unlikely to accept capped tenants, and negotiating lower rents was not a realistic solution.

5. Article 3.1 of the UNCRC required the best interests of the children to be a primary consideration. The asserted benefit of parental employment did not adequately address the immediate effects of the cap on very young children’s food, housing, warmth and care.

6. The court held that the cap engaged the children’s Article 8 rights because it restricted what could be provided for their housing, food and other basic needs, and could force families to move. Article 14 was therefore engaged. The reasoning of Lord Reed in R(SG and others) v Secretary of State for Work and Pensions [2015] 1 WLR 1449 concerning Article 8 could not survive the Supreme Court’s subsequent decision in R(MA and others) v Secretary of State for Work and Pensions [2016] 1 WLR 4550.

7. The common-law arguments were not determined because the Convention grounds succeeded. The claimants’ claims therefore succeeded.