Friday, 27 March 2015

Benefit cap affects children

Image of a sad looking child sitting on a bench with the following text: "73% of people hit by the Benefit Cap are children"
"Speaking to the Committee on the UN Convention on the Rights of the Child in connection with the issue of the incorporation of the UNCRC into UK law, Dr Atkinson, the outgoing Children’s Commissioner said that she did not necessarily favour full incorporation of the UNCRC as it would "probably take up too much parliamentary time and not necessarily be realised". She suggested an incremental process:"

"What you do—almost by stealth, setting precedents from the High Court and Supreme Court benches—is nibble away. You get people to recognise that the rights of the child are not a scary set of tenets or concepts, but inherent in a civilised society."

Recently there was an opportunity to nibble away in the Supreme Court over the benefit cap.

"The Supreme Court was sharply divided... over whether the benefit cap breaches the Human Rights Act. The controversial cap limits the total amount of benefits an out-of-work family can receive, including housing benefit and benefits for children, to £500 per week. It is applied regardless of family size or circumstances such as rental costs. As a result, lone parents with children in large families are disproportionately affected, both because they are more likely to be hit by the cap and because they are less likely to be able to avoid its effects."

"Five judges heard the appeal brought by two single mothers and their children who had fled violent and abusive husbands. Shelter and the Child Poverty Action Group intervened. All the judges agreed that the cap has a disproportionate impact on lone parents, who are overwhelmingly women."

"The issue for the Court was whether this put the Government in breach of its obligations under Article 14 of the European Convention on Human Rights (which prohibits discrimination on grounds of sex) and Article 3(1) of the UN Convention on the Rights of the Child (which requires the Government to treat the best interests of children as a primary consideration in all decisions)."

"The Court was split three ways. On one side were Lady Hale and Lord Kerr, who both gave strongly worded dissenting judgments. They would have allowed the appeal and declared that the regulations breached Article 14 of the European Convention. In introducing the cap the Government had failed to comply with its obligations under the UN Convention to treat children’s interests as a primary consideration. "

"On the other side were Lords Reed and Hughes. They found that the Government had had the best interests of children in mind when introducing the cap. Further, the UN Convention on the Rights of the Child was not incorporated into UK law and could not be relied upon in a case involving sex discrimination under the Human Rights Act.."

"That left Lord Carnwath to provide the swing vote. He agreed with Lady Hale and Lord Kerr that the Government had not shown compliance with the UN Convention on the Rights of the Child. Children’s benefits (such as child benefit and child tax credit) are intended for the children, not the parent:"
The cap has the effect that for the first time some children will lose these benefits, for reasons that have nothing to do with their own needs, but are related solely to the circumstances of their parents. [126]
"After further submissions he changed his mind. As a result, the appeal was dismissed by a majority, with Lord Carnwath stating his hope that the Government will reconsider the effect on children when it reviews the cap."

"The breaches of children’s rights would have to be settled "in the political, rather than the legal arena" [133]. So we end up with what looks like a closely fought but unsatisfactory compromise: a majority found that the benefit cap breaches the UK’s international obligations towards children, but another majority held that it is not unlawful as a matter of domestic law."

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