R (SG, previously JS) v Secretary of State for Work and Pensions [2015] UKSC 16

There was a cap on the entitlement to welfare benefits introduced by The Benefit Cap (Housing Benefit) Regulations 2012 which was justified by economic and social policy. Further to the justifications, the scheme was proposed to motivate people to work, to experience a reduction in public spending, to reduce the public funding of families that do not engage in paid work. The most heavily impacted group of people were single parent households. Claims for judicial review were brought against the decision by a group of single mothers who argued that, since single parents were usually women, the scheme was discriminatory and as such was in breach of Article 14 and P1A1 of the European Convention on Human Rights.

Could the cap on the benefits be justified and was there a violation of the provisions of the European Convention on Human Rights?

By a majority, the Supreme Court dismissed the challenge to the benefit cap. The cap had a greater impact on women because of the composition of affected lone-parent households, but the majority upheld its justification under Article 14 read with Article 1 of Protocol No 1. The judgments gave different weight to the government’s social and economic objectives, the effects on children and the relevance of the United Nations Convention on the Rights of the Child. Lady Hale and Lord Kerr dissented from the outcome. The decision did not establish that welfare policy is immune from review or that indirect discrimination cannot arise from neutral rules. It concerned the justification of this scheme and the legal grounds before the Court.

A facially neutral benefits measure can engage Article 14 through disproportionate impact on a protected group. The majority in SG upheld the cap’s justification in its social-policy context, but did not remove the requirement to examine discrimination or make all welfare choices unreviewable.

The benefit-cap appeal illustrates judicial disagreement about discrimination, welfare policy and children’s interests. The majority outcome did not amount to a finding that the cap had no disproportionate effect on women. It concerned justification of that effect under the Convention. The case is also a warning against treating an unincorporated treaty as automatically enforceable domestic legislation. Later welfare discrimination decisions refine the analytical context. An exam answer should identify the particular measure and ground instead of using the case as a universal bar to benefits challenges.