The government’s controversial benefit cap risks leaving claimants unable to house, feed or clothe their family, leaving them in clear breach of UK obligations on international children’s rights, the supreme court has found.

Although it did not find the cap unlawful, the court found that the effect of the policy was not compatible with the government’s obligations under the UN convention on the rights of the child (UNCRC).

It found the secretary of state for work and pensions, Iain Duncan Smith, had failed to “show how the cap was compatible with his obligation to treat the best interests of children as a primary consideration”.



The benefit cap limits the total benefits a family can receive to £500 a week, which is equivalent to the average earnings of a working household. The cap is applied regardless of the number of children in the family or the level of local rents.



The court had considered a challenge on behalf of two lone mothers who argued that the cap was discriminatory and unfair. Their lawyers argued that the cuts violated human rights laws and had a disproportionate effect on women, especially those seeking to escape violent partners.



One mother, known as SG, was a single mother with six children, the youngest of whom is four. They now live in an overcrowded two-bed flat in east London. After rent, the benefit cap left her and her children with £80 a week to live on.



The supreme court ruling - video

The other mother, NS, had three children and a long history of domestic violence and sexual abuse with her marriage. They now live in a two-bed flat in outer London. After the cap they faced a shortfall of around £50 per week in their rent.

The court ruled by a 3-2 majority verdict that the benefit cap (housing benefit) regulations 2012 were not unlawful. Lord Reed, reading the judgment, ruled the aims of the cap were “legitimate”.

But three of the five judges concluded that the benefit cap was not compatible with article 3(1) of the UN convention on children’s rights. Lord Carnwarth said that he hoped the government would address the implications of the ruling when it reviewed the benefit cap.

In a dissenting judgment the deputy president of the supreme court, Lady Hale, said: “The prejudicial effect of the cap is obvious and stark. It breaks the link between benefit and need.



“Claimants affected by the cap will, by definition, not receive the sums of money which the state deems necessary for them adequately to house, feed, clothe and warm themselves and their children.”



The work and pensions secretary, Iain Duncan Smith, said: “I am delighted that the country’s highest court has agreed with this government and overwhelming public opinion that the benefit cap is right and fair.



“I am proud to say that it is one of the most significant reforms we’ve implemented over the past five years.”



But lawyers acting for the two women called on the secretary of state to commit to amending the benefit cap scheme.



Rebekah Carrier of Hopkin Murray Beskine solicitors, said the secretary of state was wrong to interpret the court’s ruling as an endorsement of the fairness of the cap.

“In fact three out of five judges found that the cap breached the UK’s obligation under the UNCRC to treat the best interests of children as a primary consideration, and Lord Carnwath, who accepted the cap is lawful, nonetheless called on the government to review the cap.”

The UK signed the UN convention on the rights of the child in 1990 and ratified it a year later. The government is committed to ensure its policies comply with it.

Alison Garnham, the chief executive of the Child Poverty Action Group, said: “As three of the judges have said: ‘It cannot be in the best interests of the children affected by the cap to deprive them of the means of having adequate food, clothing, warmth and housing’.



“We hope the government will listen to the court and comply with international law on the protection of children.”

Hale also criticised the government’s justification of the benefit cap on the grounds that it was fair between working families and those on benefits.



“Families in work are already better off than those on benefits and so the cap is not necessary in order to achieve fairness between them; saving money cannot be achieved by unjustified discrimination.”

She also judged that children should not suffer because of a long-term aspiration on the part of the government to “changing the benefits culture”.

Her judgment said: “The major aim, of incentivising work and changing the benefits culture, has little force in the context of lone parents, whatever the age of their children. Depriving them of the basic means of subsistence cannot be a proportionate means of achieving it.”



Latest official figures show 55,000 households had their benefits capped in the UK in the first 20 months of the policy, and 45% of these were in London. A third of those families affected had five or more children, while 62% were single parents with children.

