R (DA) v Secretary of State for Work and Pensions

The Supreme Court considered challenges to the lawfulness of the revised benefit cap introduced by the Welfare Reform and Work Act 2016 and related amendments to the Housing Benefit Regulations 2006 (in particular regulation 75CA and associated provisions). The appellants, lone parents and their children (variously described as cohorts with children under two or under five), alleged unlawful discrimination under the Human Rights Act 1998 read with article 14 taken with article 8 and/or article 1 of Protocol 1 to the European Convention on Human Rights, and relied on the United Nations Convention on the Rights of the Child (article 3) to inform that assessment.

The court held that the entitlement to welfare benefits at issue fell within the ambit of article 8 and that the appellants had the requisite status (lone parents and young children). The central legal question was whether the government’s decision not to exempt those cohorts from the revised cap was justified. The court applied the established proportionality analysis in convention cases concerning socio‑economic policy and confirmed that, in the context of state welfare measures, justification will be upheld unless the impugned scheme is "manifestly without reasonable foundation".

On the facts the majority (five Justices) concluded that the Secretary of State’s decision was not manifestly without reasonable foundation: Parliament and the executive had considered the policy, the government had evaluated the impact (including material addressing children’s interests and possible mitigation such as Discretionary Housing Payments and limited free childcare), and the scheme’s aims (fairness between work and welfare, incentivising work, modest fiscal savings) provided a reasonable foundation for applying the cap to the appellant cohorts. The appeals were therefore dismissed. Two members of the court would have allowed the appeals and would have made a declaration of incompatibility in respect of lone parents with children under compulsory school age (or under five as formulated in dissent).

This case concerned two linked appeals by and on behalf of lone parents and their children against the operation of the revised benefit cap introduced by Parliament in 2016. The key legal relief sought was a declaration that the Housing Benefit Regulations 2006, as amended, unlawfully discriminated against (a) lone parents with very young children and (b) the children themselves, in breach of article 14 taken with article 8 and/or article 1 of Protocol 1. The appellants relied also on article 3 of the UN Convention on the Rights of the Child to inform the substantive assessment of children’s best interests.

Procedural history:

• DA proceedings: Collins J (Administrative Court) declared the amended Regulations unlawful ([2017] EWHC 1446 (Admin)); the Court of Appeal set aside that declaration ([2018] EWCA Civ 504). The appeal to the Supreme Court followed.
• DS proceedings: heard by Lang J on 26 March 2018 and dismissed with a leap‑frog certificate; leave to appeal directly to the Supreme Court was granted. The DS appeal was heard together with DA in the Supreme Court.

Key issues framed by the court:

• Whether the impugned measures fall within the ambit of article 8 (respect for family life) and/or article 1 of Protocol 1.
• Whether the appellants have an "other status" for article 14 purposes (lone parents and children under specified ages).
• How to identify the appropriate comparator group(s).
• Whether any differential or similar treatment amounts to discrimination and, if so, whether it is justified.
• The standard of justification applicable to socio‑economic measures (whether the scheme is "manifestly without reasonable foundation").
• What weight (if any) should be given to the UNCRC (article 3) and whether the government complied with any duty to treat the best interests of the child as a primary consideration.

Court’s reasoning (concise):

• The court accepted that benefit entitlements of the parents and the consequential effects on children fall within the ambit of article 8. It accepted that lone parent status (and sub‑groups by age of youngest child) can constitute a status for article 14 analysis.
• The natural comparator was taken to be all others subjected to the cap, with reference to subgroups (for emphasis) such as dual‑care parents or lone parents with older children.
• On justification the court reaffirmed the established approach in welfare cases: where economic or social policy is in issue the court should show deference and sustain a measure unless it is manifestly without reasonable foundation. That standard governs the proportionality inquiry in this context.
• The court reviewed Parliamentary materials, the government’s impact assessment, statistical and expert evidence, and the availability and operation of mitigation (notably Discretionary Housing Payments and limited free childcare). The majority concluded that the government had evaluated children’s interests and that the decision not to create the specific exemptions claimed by the appellants was not manifestly without reasonable foundation and therefore was justified.
• Two members of the court dissented: they would have found the scheme disproportionate as applied to lone parents with young children (on the facts, particularly in respect of small children) and would have made a declaration of incompatibility.

Appeal dismissed. The majority concluded that, although the revised benefit cap falls within the ambit of article 8 and the appellants had an article 14 status as lone parents and young children, the government’s decision not to exempt those cohorts from the revised cap was not "manifestly without reasonable foundation" and therefore did not amount to unlawful discrimination under article 14; Parliamentary materials, the government’s impact assessment and available mitigations (including Discretionary Housing Payments and limited childcare support) provided a sufficient foundation. Two Justices dissented and would have allowed the appeals and made a declaration of incompatibility for lone parents with young children.

DA: Claimants succeeded at first instance (Collins J: [2017] EWHC 1446 (Admin)); Court of Appeal set aside that order ([2018] EWCA Civ 504). DS: heard by Lang J (26 March 2018), claims dismissed and leap‑frog certificate granted; permission to appeal direct to the Supreme Court was granted. Both appeals were heard together in the Supreme Court and decided in the lead judgment ([2019] UKSC 21).