Hurley and others v Secretary of State for Work and Pensions 2015

This judgement concerns a successful judicial review challenge to the legality of the benefit cap with respect to carers.

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Each claim concerned Part 8A of the Housing Benefit Regulations 2006 which was inserted by Regulation 2 of the Benefit Cap (Housing Benefit) Regulations 2012. The statutory provisions which enable Regulations to be made to impose the cap are contained in Sections 96 and 97 of the Welfare Reform Act 2012.

The regulations provide an exemption from the cap to those who receive DLA – but not to their carers. 

Two categories of carer only are in effect exempt: carers for children or spouses.  Any carer who provides care to another adult, such as a parent or grandparent, or a disabled child aged 18 or over, is caught by the cap, leaving them without enough money for essential living costs (and in the case of one of the claimants in this case, resulting in homelessness).

The claimants advanced two grounds in challenging the scheme set up in Part 8A of the 2006 Regulations. First, it was said that not to exempt those claimants who receive carers allowance (CA) is unlawful because it is irrational or disproportionate.

Secondly, it was said that there is unlawful discrimination contrary to Article 14 of the European Convention of Human Rights (ECHR) in the impact both on carers and those for whom they care.

The government has consistently argued that the benefit cap sends a message to “workless families”: that they must make the same choices as everyone else and avoid the penalties of the benefit cap by moving to cheaper accommodation, starting work, economising or negotiating lower rents with their landlords.

However, Mr Justice Collins in his judgment recognises the huge contribution that carers make to society and the additional challenges they make, and says that:

"… to describe a household where care was being provided for at least 35 hours a week as 'workless' was somewhat offensive... To care for a seriously disabled person is difficult and burdensome and could properly be regarded as work”.

He adds that "it must be obvious that those who are so disabled as to need at least 35 hours care each week are properly to be regarded as some of the most vulnerable members of our society" such that "hardship can be and has been created by the cap as it affects family carers such as these claimants" and, because the financial impact of the cap can be very significant, "it is no surprise that some would find and have found it impossible, despite the misery produced, to continue to care full time so that there has to be recourse to public funds" .

The result says Mr Justice Collins is that many unpaid carers have stopped providing care because of the cap - and the State now must pick up the tab and pay the substantial cost of providing alternative care to their disabled relatives.

In giving his judgement, Mr. Justice Collins considers in detail Article 14 of the ECHR – prohibition of discrimination.

The Secretary of State submitted that there is no discrimination on the ground of disability since the seriously disabled are granted DLA and the effects of the cap on their carers does not discriminate against them. In brief, he submitted that the carers are not disabled and so cannot say that they have been discriminated against on the basis of their disability.

In contrast, the claimants submitted that it is not necessary that they are disabled. Any difference of treatment relating to carers for the disabled is, it was submitted, clearly concerned with and so attributable to disability.

Mr. Justice Collins concludes that it is, more helpful to consider whether there is discrimination against the disabled:

“It is … a result of the cap that a significant number of those who are at present cared for in what can broadly be regarded as a family context are unable to have that care continue. The existence or the level of care provided by carers will be affected and the disabled for whom they care will lose to a greater or lesser extent their care. This will inevitably have an adverse effect on the disabled since they will no longer receive care from the family member or relation in whom they trust.

… For many it matters deeply that they are cared for by a family member. Thus there is adverse treatment since, although care can be provided by others, the loss of the trusted carer can be devastating.”

He then highlights in Mathieson v. SSWP [2015] 1 WLR 1250 the Supreme Court had to consider a claim that the suspension of the claimant’s DLA when he, a child, was in hospital for more than 84 days breached his right not to be discriminated against:

“Following the claimant’s death, his father was permitted to take over the claim. It was decided that he had a status falling within the grounds of discrimination prohibited by Article 14. The difference depended on the severity of the disabled child’s disability. This required hospital in-patient treatment for more than 84 days, which was the cut off point for the DLA, although the parents’ expenses and their attendance on and so assistance of him in hospital continued.

The analogy here is that the disabled being cared for by a family member who is regarded as essential and in whom trust is placed differs from the disabled who is not in that position. It is in my view an analogy which is appropriate.”

As he is satisfied that there is indirect discrimination, he says that the question therefore is whether it is objectively justifiable:

“In cases such as these of indirect discrimination what must be justified is the policy or lack of exceptions to it which produces the discrimination. There can be no doubt that the policy has a legitimate aim. …Thus the question is whether it bears a reasonable relationship of proportionality to that aim.

He continues:

“In considering this issue, it is noteworthy that nowhere in the impact assessments or in what was put before Parliament was the effect on the disabled of loss of family carers raised.

It in my view should have been since it ought to have been apparent that the impact of a possible loss of a trusted family carer could be profound. In SG the differential treatment of men and women was conceded. There is no such concession here in relation to the differential treatment on the disabled cared for by family members and other disabled.

But, as I have indicated, that differential treatment exists and should have been appreciated. Nevertheless, the difference may be justified if it is shown to maintain the necessary reasonable relationship of proportionality.”

Mr. Justice Collins then goes on to consider whether:

  • is the objective sufficiently important to justify an adverse impact?
  • is it rationally connected with the objective?
  • could a measure with a lesser adverse impact on the disadvantaged group have been used?
  • having regard to those matters, has a fair balance been struck between the interests of the community and the rights of those with a protected characteristic?

In these respects he concludes in the negative and so rules that the disputed benefit cap rule is manifestly without reasonable foundation.

As he is satisfied that the manifestly without reasonable foundation test is not met in relation to the affected disabled persons, he finds that he does not need to decide whether the carers themselves are to be regarded as the subject of discrimination.

He therefore concludes that:

“The result is that in my judgment the failure to exempt at least individual family carers is not lawful because it amounts to indirect discrimination which is not objectively justifiable.

I would only add that whether or not the defendant accepts my decision reconsideration will I hope be given to whether the present regulatory regime is appropriate having regard to the hardship it can and does produce and the lack of real benefit to the State in terms of the objectives of the benefit cap. As I have said, a bright line approach is available by simply exempting those single recipients of CA who provide family care.”  

What happened next

Lord Freud announced that the government intended to exempt recipients of Carer’s Allowance from the benefit cap

Carers Allowance is now excluded from the benefit cap.