R (JS) v SSWP [2013] EWHC 3350 (QB)

ISSUES: By the Welfare Reform Act 2012, Parliament introduced a “benefit cap” to limit the level of benefit any family might receive, subject to certain exceptions. The Secretary of State was required to introduce Regulations under the Act which defined who would be subject to the statutory cap, and how the cap was to be calculated. A group of six claimants, all single mothers with multiple young children, took particular issue with the fact that the scheme applied equally, irrespective of either family size or the local cost of living. They challenged the Regulations on the basis that the Secretary of State had breached the public sector equality duty, failed to give primacy to the best interests of children, discriminated again them contrary to Article 14 of the ECHR read in conjunction either with A1P1 (free enjoyment of property) or Article 8 (private and family life), and acted irrationally. The Claimants subsequently abandoned the PSED challenge.

JUDGMENT: The Court was openly reluctant to interfere in what it saw as a question of high- level national policy relating to the allocation of resources. The overall scheme, including the detail which eventually made up the Regulations, had been subject to significant Parliamentary debate. It was accepted that both A1P1 and Article 8 were engaged, but states receive a very wide margin of discretion in matters of resource allocation (a policy had to be “manifestly without reasonable foundation” to amount to unjustified discrimination under Art.14).

The court held that the policy was justified. In doing so, the court placed heavy emphasis on the government’s policy of effecting a long-term shift in the welfare culture to one in which those on benefits would have to make sacrifices (such as limiting family size and moving out of expensive areas), as working families had to. It was also justified by the policy of making budget cuts generally.

COMMENT: The overall result of the case is hardly surprising. This was a decision of high-level national policy taken by Parliament, on what is essentially a cost-saving measure introduced in the middle of a period of severe austerity in government spending.

In the course of its judgment, the Court made two interesting observations of day-to-day relevance. First, the court stated that it could not be inferred from the mere fact that children would be adversely affected by the policy that their interests were not treated as a primary consideration. Second, families who were forced to leave their current accommodation because the benefit cap meant they could no longer afford that accommodation would not be treated as “intentionally homeless” for the purposes of homelessness legislation, albeit that there might be an argument in individual cases that the benefit cap was not the true cause of homelessness.