On appeal from: [2014] EWCA Civ 156

The Supreme Court dismissed an appeal by a majority of 3-2 regarding whether the Benefit Cap (Housing Benefit) Regulations 2012 were unlawful owing to disproportionately affecting single parents and domestic violence victims, who tend to be women. The applicants are two lone mothers and their youngest children. The application of the cap reduced their specified benefits by £55-£75 per week. The appellants argued, amongst other grounds, that parliament had not complied with its obligations to consider the best interests of the child, under the UNCRC, art 3(1).

The Courts below had held that the indirectly discriminatory impact of the scheme upon lone parents, and therefore women, could be justified and that the scheme was therefore lawful.

Lord Reed, giving the leading judgment, stated that the question was whether the established indirect discrimination was a proportionate means of meeting legitimate aims. He reasoned that the question of proportionality involved controversial issues of social and economic policy, with major implications for public spending. It is therefore necessary for the Court to give due weight to the considered assessment of democratically-elected institution and it should be respected unless manifestly without reasonable foundation. He also stated that many of the issues in the appeal were considered by Parliament before the regulations were approved.

Lord Carnwath, also in the majority, added that the UNCRC, art 3(1) had no role in justifying discrimination against women: the treatment of the child does not depend on the sex of their parent. He stated that though the Secretary of State failed to show how the Regulations comply with art 3(1), it is in the political, rather than the legal, arena that the consequences should be played out.

Lady Hale, dissenting, stated that what has to be considered is whether the benefit cap as it applies to lone parents can be justified independently of its discriminatory effects. In considering that, it is necessary to ask whether proper account has been taken of the best interests of the children affected, i.e. whether the Government complied with article 3(1). As it has been established that it failed to show how the regulations complied, Lady Hale concluded that the cap will deprive children of their basic needs which cannot be in their best interests and therefore the indirect sex discrimination inherent in the cap’s implementation is not a proportionate way of achieving its aims.

Lord Kerr also gave a dissenting judgment.


For judgment, please download: [2015] UKSC 16
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII