SG and others, R (on the application of) v. Secretary of State for Work and Pensions
Court of Appeal (Civil Division)
21 February 2014
Article 3: Best interests of the child
Other International Provisions:
European Convention on Human Rights (ECHR), Article 8: right to private and family life
Welfare Reform Act 2012
Benefit Cap (Housing Benefit) Regulations 2012
The Welfare Reform Act 2012 and the Benefit Cap (Housing Benefit) Regulations 2012 impose a “benefit cap”, which limits the amount of welfare benefits that a person can claim. The two items most likely to trigger the operation of the cap are housing benefits and the number of children in the family. The cap was brought into force in four London boroughs in April 2013 and has since been implemented more broadly, affecting families receiving benefits.
This case challenging the cap was brought by four claimants – the mother and youngest child of two families, each single-parent households – who were forced into temporary accommodation in London. With respect to children, the claimants argued that the scheme violates the best interests of the child under Article 3 of the CRC, and the right to family life under Article 8 of the ECHR. The Secretary of State argued that the cap will encourage individuals to work and reduce their dependency on benefits.
Issue and resolution:
Best interests of the child; right to adequate standard of living and social security; whether the relevant sections of the Welfare Reform Act 2012 and the Benefit Cap (Housing Benefit) Regulations 2012 fail to have regard to the best interests of the child in violation of Article 3(1) of the CRC, and violate the right to family life under Article 8 of the ECHR. The Court found that the relevant sections do not violate these rights, and dismissed the application.
Article 3 of the CRC provides that in all actions concerning children, the best interests of the child shall be a primary consideration. The Court noted that while the CRC is an international convention which has not been incorporated into domestic law, it should be considered in cases such as this.
The appellants argued that while the Secretary of State considered the best interests of the children affected by the benefit cap, there is no evidence that the Secretary of State treated the best interests of the child as a “primary consideration”. The appellants cite prior case law to contend that the best interests of the child “must be considered first” as a primary consideration.
The Court stated that Article 3 does not create an obligation on decision-makers to consider the best interests of the child first, nor is there an obligation to address conflicting considerations of public policy in any particular order. As the lower court had stated, all that was necessary was to “give appropriate weight to the interests of children as a primary consideration in the overall balancing exercise”, and there was ample evidence that the Secretary of State did have regard to the interests of children as a primary consideration.
Article 8 of the ECHR protects the right to respect for private and family life. The Court stated that Article 8 does not generally impose a positive duty on the state to provide support such as housing or welfare benefits, though it may do so exceptionally in extreme cases, in particular where the welfare of children is at stake. The Court concluded, however, that none of the cases before it were extreme enough so as to require the state to provide housing and/or welfare benefits. Furthermore, the Court stated that even if in an individual case the cap causes such extreme consequences as to give rise to a breach of Article 8, it would not necessarily follow that the scheme itself requires amendment.
Excerpts citing CRC and other relevant human rights instruments:
23. … [W]e consider that the principal issues that arise are whether the 2012 Regulations:
ii) infringe article 3(1) of the United Nations Convention on the Rights of the Child (“UNCRC”);
68. Article 3(1) of the UNCRC provides:
“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.”
69. The Divisional Court held that, notwithstanding the fact that the UNCRC is an international convention which has not been incorporated into our domestic law, the court should nevertheless have regard to it as a matter of Convention jurisprudence: see Neulinger v. Switzerland (2010) 28 BHRC 706, cited by Baroness Hale in ZH (Tanzania) v. Secretary of State for the Home Department  2 AC 166 at para 21. This has not been challenged by the Secretary of State on this appeal.
73. We respectfully agree that there is no obligation on a decision-maker in this context to address conflicting considerations of public policy in any particular order. At para 46 of its judgment, the Divisional Court said that all that was necessary was to “give appropriate weight to the interests of children as a primary consideration in the overall balancing exercise”. We agree. …
The Court notes that the benefit cap is a controversial statutory measure which will cause hardship to certain people. However, the Court states that “[t]he legislation was carefully calibrated to produce a scheme which was judged by [Parliament and the Government] to strike a fair balance between all members of society, in particular between those who are in work and those who are not.”
CRIN believes this decision is inconsistent with the CRC. The Court adopts an interpretation of the best interests principle that contradicts the wording of the Convention. Article 3 requires that the best interests of the child be considered “a primary consideration”, which, according to the UN Committee on the Rights of the Child, “means that the child’s best interests may not be considered on the same level as all other considerations” (General Comment No. 14). Therefore, in assessing the legality of the benefits cap, the Court should have conducted a closer analysis of the balance struck between the best interests of the child and competing considerations.
 EWCA Civ 156
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.