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18 March 2015, 12:02
Two single mothers from London have lost a Supreme Court battle against the Government's benefit cap.
In a case that dramatically divided the highest court in the land, justices ruled by a 3-2 majority that the Benefit Cap (Housing Benefit) Regulations 2012 are lawful.
But even though the mothers failed to overturn the cap, they did win rulings from three justices that the cap was "incompatible" with international law on the rights of children.
The UN Convention on the Rights of the Child (UNCRC) requires the best interests of children to be treated as "a primary consideration".
Because the UN convention is not part of domestic law, it did not alter the outcome of the mothers' appeal.
But one of the justices, Lord Carnwath, said he hoped that the "implications" of the court's UNCRC findings would be addressed when the capping scheme was reviewed.
Lord Carnwath said it was "in the political, rather than the legal arena, that the consequences must be played out."
The mothers were referred to anonymously as "SG", a single mother of six from east London, and "NS", a mother of three living in outer London.
Both say they have fled abusive husbands but are now struggling to live because of the benefit cuts.
The cap currently limits the amount of benefits a household can receive to £500 a week for couples and £350 a week for households of a single adult.
Lawyers acting for the two women and their children argued that the cuts breached Article 14 of the European Convention on Human Rights, which prohibits discrimination, because of its disproportionate effect on women.
Lord Reed, giving the lead judgment dismissing their appeal, said: "The Government's view, endorsed by Parliament, was that achieving the aims of the cap was sufficiently important to justify making the regulations, despite their affecting more women than men.
"The majority of the court conclude that that view was not manifestly without reasonable foundation and should therefore be accepted by the court."
Lord Reed said the cap for households with children was equivalent to a gross annual salary of £35,000, which was higher than the earnings of half of the UK's working households.
It was "inevitable" that measures aimed at limiting public expenditure on welfare benefits would impact more on women as they formed the majority of those out of work receiving high levels of benefit.
Lord Carnwath and Lord Hughes were part of the majority that agreed the cap was lawful..
But Lord Carnwath was also pivotal in turning the UNCRC issue in to one of importance when he found the secretary of state had failed to show the cap was compatible with his "obligation to treat the best interests of children as a primary consideration", as required by article 3 of the convention.
The two remaining justices - Lady Hale and Lord Kerr - went further when they said the UNCRC was directly enforceable in UK domestic law and they would have allowed the mother's appeal against the cap.
Lady Hale said it was the Government's contention that the "long-term shift in welfare culture" brought about by the cap would be beneficial to children in the longer run.
She said: "It cannot possibly be in the best interests of the children affected by the cap to deprive them of the means to provide them with adequate food, clothing, warmth and housing, the basic necessities of life.
"It is not enough that children in general, now or in the future, may benefit by a shift in welfare culture."
Lady Hale added that the Government's aim of incentivising work "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."
Lady Hale said in her view the mothers were entitled to a declaration that the capping regulations were "indirectly discriminatory" to lone parents on the grounds of sex.
Agreeing, Lord Kerr said: "A primacy of importance ought to have been given to the rights of children in devising the regulations which bring the benefits cap into force"
He added that depriving children of the basic necessities of life - and the ability of their mothers to ensure they had them - "is simply antithetical to the notion that first consideration has been given to their best interests."
Child Poverty Action Group (CPAG) chief executive Alison Garnham said: "The women and children involved in this case were escaping horrific abuse.
"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."
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.
"A key part of the long-term economic plan, the benefit cap is encouraging people to change their behaviour and motivating them to find work."
Ms Garnham rejected suggestions that families on benefits could be better off than working families "since working families are entitled to child benefit and other top-up benefits as well as their wages".
She said: "Most single parents aren't affected by the cap but it does particularly hit a small number who have more than three children in addition to high rents."