QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
DA and others
|- and -
|Secretary of State for Work and Pensions
Mr Clive Sheldon, QC and Mr Simon Pritchard (instructed by GLD) for the defendant
Mr Martin Westgate, QC, Ms Shu Shin Luh and Mr Connor Johnston (instructed by Freshfields Bruckhaus Deringer LLP) for the intervenor
Hearing dates: 17th and 18th May 2017
Crown Copyright ©
Mr Justice Collins:
"Every national or legal person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
Any deprivation must accordingly be justified pursuant to the second sentence of AIPI. Article 14 of the ECHR deals with the need to ensure that rights and freedoms are enjoyed without discrimination. It can only be considered in conjunction with one or more of the substantive rights. It provides:-
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"The court has so far considered that the right under Article 14…..is violated when States treat differently persons in analogous situations, without providing an objective and reasonable justification. However, the court considered that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against….is also violated when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different."
This has sometimes been labelled 'Thlimmenos discrimination' but, as Lord Dyson MR observed in R(MA) v. SSWP  PTSR 584, there is little if any difference between indirect and Thlimmenos discrimination. Any material discrimination which arises in this claim is indirect. It has not been and could not be argued that there is direct discrimination.
"Regulations under subsection (5) [which deal with the 'relevant amount'] may –
(a) specify which annual limit applies in the case of –
(i) different prescribed descriptions of single person;
(ii) different prescribed descriptions of couples."
Section 96(10) specifies the welfare benefits which are within s.96. I need not cite the subsection for the purposes of this judgment. They include child benefit. Section 97 of the 2012 Act contains supplementary provisions which provide that any regulations under s.96 are subject to annulment in pursuance of a resolution of either House of Parliament. It also excludes any right of appeal against a decision to apply the benefit cap in accordance with regulation under s.96. Thus judicial review is the only possible remedy if a challenge is to be made.
"However, mitigations particularly supportive to women and lone parents have been put in place….including employment support, support for childcare costs, free childcare places and Discretionary Housing Payments."
Employment support is said to include in liaison with local authorities support to find work and housing support. Childcare costs through Working Tax Credits are available covering 15 hours during term time for three and four year olds and two year olds who are most disadvantaged. Children under two are not covered, but there can be payment of 70% of childcare costs up to a limit of £175 per week for a single child and £300 for two or more children. From April 2016, this was increased to 85% in Universal Credit, again with limits, this time monthly amounts of £646.35 and £1,108.04 respectively. It is important that full costs are not payable for children under 2, since, as will become clear, for those such as the claimants living in or very close to poverty even relatively small sums can have a seriously damaging effect.
"However, the current benefit cap has been shown to be successful with more households looking for, and finding work. The new lower tiered cap aims to build on the success by strengthening the work incentive for households. In this way the number of children being in workless households could fall over time which is in their best interests.
It is not in the best interests of children to live in workless households. Children can have life chances and opportunities damaged as a result of living in households where no-one has worked for years and where no-one considers work as an option."
While no doubt true, those observations are entirely irrelevant in relation to lone parents such as the claimants who find themselves in real difficulty in being able to enter work because of the need to care for a child under 2.
Those in temporary accommodation
Individuals or families fleeing domestic abuse
Those with kinship care responsibilities
Individuals or families who cannot move immediately for reasons of health, education or child protection
Households moving to, or having difficulty in finding more appropriate accommodation
Those with dual liability for housing costs
Women within 11 weeks of the expected week of childbirth
Households with a child aged 9 months or under
(a) are entitled to housing benefit or council tax benefit or both [or to universal credit] and
(b) appear to an authority to require some further financial assistance (in addition to the benefit or benefits to which they are entitled) in order to meet housing costs."
Section 70 empowers the defendant to "make such payments as he thinks fit" in respect of DHPs. This has included payments to deal with those affected by the benefit cap and the so-called bedroom tax. Shelter has, for obvious reasons, concentrated on the housing difficulties and indeed likely homelessness created by the benefit cap. I shall deal with its evidence and submissions in due course after I have set out the material evidence of each claimant. Suffice it to say, that Shelter confirms from the experience of its Chief Executive, Mr Graeme Browne, the inability of DHP to meet the needs of those such as the claimants affected by the cap.
"When a Statutory Instrument has been reviewed by Parliament, respect for Parliament's constitutional function calls for considerable caution before the court will hold it to be unlawful on some ground (such as irrationality) which is within the ambit of Parliamentary review. This applies with special force to legislative instruments founded on consideration of general policy."
The observations of Lord Bingham in R(Countryside Alliance) v. AG  AC 719 at paragraph 45, where he said:-
"The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament."
are material since, as Lord Reed observed in SG (paragraph 95), those observations are equally true of questions of economic and political judgments.
"Turning to lone parents with young children, at whom I think this amendment is most likely addressed, we believe that work is the best route out of poverty for households. Children can have their life chances and opportunities damaged by living in households in which no-one has worked for years and in which no-one considers work as an option. Lone parents need only work at 16 hours a week to become eligible for working tax credits and so become exempt from the cap."
The minister went on to draw attention to the DHP provision which she said provided the most effective means of increasing incentives to work and promoting fairness, while ensuring that the most vulnerable were supported. The possibility of receiving at least 70% (now 85%) of childcare costs was also referred to for those on Universal Credit. The minister's response does not engage with the difficulties faced by those with children under two.
"There is a difference between having a specific provision that does not require people to work and having one that actually financially incentivises people to work. That is the difference. As the noble Baroness [Hollis] pointed out, we do not require anyone with a child under three to go to work, but people often go to work with a child much younger than that. When people look at this measure on balance, they may think that it is the appropriate thing for them."
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
I do not need to go through the arguments about its application since a majority of the Supreme Court has decided that it does apply. There was in relation to the imposition of the cap no proper response to the concerns raised by the Children's Commissioner. I do not think that anything said in answer to the points raised in Parliament cures that defect. The advantage to children of having parents in work is essentially all that is relied on and it is difficult to see how that is material to children under two. Lord Carnwath at paragraph 125 makes the point that the benefits which are capped include those which are designed to meet the needs of the children in the household. He continued in paragraph 126:-
"The cap has the effect that for the first time some children will lose those benefits, for reasons that have nothing to do with their own needs, but are related solely to the circumstances of their parents. It is difficult to see how this result can be said to be consistent with the best interests of the children concerned."
These observations are equally valid in relation to the amended cap. Mr Sheldon submitted that the opinions of the three justices on this were not part of the ratio of the case and so were not binding. Whether or not technically binding, they were decisions reached following full argument and it would be wrong for me not to follow them unless there were overwhelming reasons not to.