Artwork by Julia Giles

High Court finds that benefit cap discriminates unlawfully against disabled people


Today, 26 November 2015, the High Court has ruled that the Secretary of State for Work and Pensions, Iain Duncan Smith MP, has unlawfully discriminated against disabled people by failing to exempt their unpaid full-time carers from the benefit cap.  Mr Justice Collins allowed a claim for judicial review brought by two affected families.  In each family, an adult relative is providing full time, essential care to their elderly and disabled grandmother.  They are able to perform their caring roles only with the support of state benefits, covering their housing and living expenses, and both receive Carer's Allowance. 

Unfair and Unlawful
The families successfully argued that the benefit cap is unfair and unlawful because of its impact on disabled people and their carers.  To qualify for Carer’s Allowance, carers must be providing full time care - upwards of 35 hours a week – to a severely disabled person who receives Disability Living Allowance (DLA).  The Secretary of State has provided an exemption from the cap to those who receive DLA – but not to their carers.  Two categories of carer only are 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.

Carers Save the State Billions of Pounds Each Year
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. But Mr Justice Collins in his judgment today recognised the huge contribution that carers make to society and the additional challenges they make, and commented 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" (at [28]).

Mr Justice Collins noted 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" (at [14]). He ruled that "hardship can be and has been created by the cap as it affects family carers such as these claimants" (at [18]) 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" (at [19]). The result 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.

The High Court has recognised and agreed that unpaid carers make a "huge contribution to society in saving £119 billion pounds which would otherwise require public funds".  Mr Justice Collins said this "is indeed a staggering sum. It has not been challenged by the defendant".  Carers UK provided evidence in support of the claim, which showed that unpaid carers already suffer real financial hardship and have to cut back on basic essentials.  The Secretary of State argued that unpaid carers should be treated in the same way as anyone else who is out of work and receiving benefits, and that they have the "same choices" to make about taking up paid work or adjusting their household budgets. But Mr Justice Collins found that this argument "totally fails to engage with... the evidence from Carers UK that carers are already suffering real financial hardship so that the scope for adjusting household budgets does not in many cases exist" (at [25]) and he held that those providing full-time care simply could not be in full-time paid work without giving up or cutting back significantly on their caring responsibilities.  The key rationale for the benefit cap - to encourage 'workless families' into work - does not apply here. 

Importance of Being Cared for by a Family Member, Not a Stranger
The High Court also recognised how important it is to many disabled people to have their care provided by a relative, not a stranger.  By applying the cap to their unpaid family carers, the Secretary of State has discriminated against seriously disabled people. There is an inevitable adverse effect, "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 a trusted carer can be devastating" (at [63]).  The Secretary of State failed to justify this discrimination against the disabled, and this was unlawful.

Comments by Claimants
One of the claimants who has won this case today, Ashley Hurley, is a young woman who was brought up by her grandmother and who is committed to providing her with the care and support which she needs.  She says:

“I had understood that the benefit cap was meant to encourage people to work and to address the problem of children growing up in workless families. I do not understand why it should apply to me as I do work, looking after my grandmother. If I did not care for my grandmother, then I suppose that we would have to ask the Council to pay for care for her. It would certainly cost the State more to pay someone to provide the care that I provide, and my grandmother would be very distressed about having care provided by strangers. Indeed, I expect that both her mental and physical health would rapidly deteriorate if this happened. I do not feel that I would be able to allow this to happen, and I do not understand why the government would think it was better for the State to care for my grandmother instead of her own family.”

The solicitor for the families, Rebekah Carrier, said:

“We welcome the High Court's ruling today and urge the Secretary of State to take urgent action to address this discriminatory effect of the benefit cap.  An exemption to the cap for my clients and others in a similar position must be drafted and laid before Parliament as soon as possible.

My clients have been hit by the benefit cap because they are disabled or they provide essential care to their disabled relatives.  They are not skivers – they are strivers.  They provide full time care and save the State money.  The High Court has recognised that, although the Government seeks to justify the cap by the financial savings achieved, the long term consequences of this arbitrary benefit cap are likely to have not only devastating consequences for individual disabled people and those who care for them, but serious financial costs.  If Ashley Hurley or Lee Palmer are forced into stopping their important work as carers, the State will have to pick up the tab and arrange alternative care.  This is not a fair or sensible policy.  The Government must now take urgent action to comply with the High Court's ruling.”

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