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A chink in the armour

Cutbacks iStock 000013353612XSmall 146x219A High Court judge has ruled that the Government's benefits cap unlawfully discriminated against disabled people by failing to exempt their carers. Alexander Campbell reports on the judgment.

The benefits cap is one of the flagship welfare reforms of the last government. The High Court has just put another chink in its armour with a strongly worded decision holding that it breaches human rights.

The benefits cap was introduced as part of the Welfare Reform Act 2012. It is designed to make sure that people are always financially better off working than in receipt of benefits. The cap seeks to achieve this by allowing the Secretary of State for Work and Pensions to fix a maximum sum which benefits claimants are entitled to receive. If they actually receive more than this, their housing benefit is reduced until they are at the maximum sum fixed by the Secretary of State.

The challenge in Hurley

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There are a number of specified circumstances in which the cap does not apply. In Hurley v Secretary of State for Work and Pensions [2015] EWHC 3382 (Admin), two people who cared for disabled relatives were challenging the cap, arguing that it was irrational and a breach of their relatives’ human rights for the carers not to be exempt. They argued that, if made subject to the cap, they would not be able to afford to carry on caring for their relatives.

The claimants argued that the decision not to exempt carers of disabled relatives was irrational (i.e. Wednesbury unreasonable) and a breach of their ECHR rights (specifically Article 14 taken together with Article 8 and/or Article One of Protocol One).

The standard of review

The claimants argued that the high threshold of Wednesbury unreasonableness might not apply in a case where fundamental rights are at stake. However the High Court reiterated the orthodox position that a finding of irrationality can only be made if the decision is Wednesbury unreasonable i.e. a decision which no reasonable public body could make. Nevertheless the Court held that the fact that fundamental rights are at stake could affect the intensity of the review to be applied.

A bright line rule

The Government had wanted there to be a bright line rule to determine when the benefits cap applied i.e. a clear-cut rule which leaves little room for varying interpretations. The High Court noted the benefits of this approach (simplicity, clarity and ease of administration) but noted that it could be particularly harsh when used to exclude people from a particular policy despite the fact that in substance their case might be just as deserving as people who fall on the right side of the line.

In Hurley, Mr Justice Collins held that whilst the decision not to exempt carers of disabled relatives from the benefits cap was undesirable (declaring himself “not happy with this legislation” in an unusually forthright expression of views for a judge in a judicial review claim), he held that it did not meet the very high threshold necessary to establish it as a Wednesbury unreasonable decision.

Human rights

Having decided that the decision was not irrational, the Court had to consider whether it breached the claimants’ ECHR rights.

The Court began by reiterating that the European Convention leaves a wide margin of appreciation to states in matters of economic and social strategy.

The Court went on to note that a state can discriminate against a person not only by failing to treat them the same as people in a similar situation, but also by failing to treat them differently from people who are in a significantly different situation (known as Thlimmenos discrimination).

The Court held that the decision not to exempt carers for disabled family members would clearly have an adverse effect on the disabled family members because the decision would force their family members to give up caring for them. The Court held that the disabled family members were being subjected to Thlimmenos discrimination because they were being subjected to a blanket policy when their circumstances demanded that they be treated differently (i.e. by being exempted from the cap).

The Court therefore had to consider whether this discrimination could be justified. The Court held that it was certainly in pursuit of a legitimate aim (namely incentivising work and reducing dependency on welfare). The Court reiterated the position laid down by the Supreme Court in R (SG) v SSWP [2015] 1 WLR 1449 that in cases concerning state benefits, the courts should only interfere with the government’s approach if it was manifestly without reasonable foundation. The Court noted, however, that whilst social and economic policy was normally the preserve of government and Parliament, in this case less deference might be shown given that the discrimination which the scheme imposed had never been considered by Parliament.

The Court held that the government’s failure to exempt individual carers for family members was discrimination which could not be objectively justified. Accordingly the Court found for the claimants and held the government’s approach to be unlawful.

A chink in the armour

The decision is the latest attack on the government’s welfare reforms through the courts. The decision is notable for the direct way in which the judge queried the wisdom of the government’s policy and encouraged the government to look again at way in which the benefits cap operates.

Ultimately, whilst the decision in Hurley is hugely significant for disabled people who are cared for by a family member, its impact beyond that specific situation is going to be limited. Nevertheless it has its place in the ongoing chronicle of legal challenges to recent welfare reforms and it might mark an increasing boldness on the part of some members of the judiciary in commenting on the wisdom of some of the legislation involved.

Whilst some will decry the judgment as an example of human rights leading the courts to come ever closer to having to make value judgments about government policy, as a matter of policy the decision reached in Hurley is a sensible one. If the claimants involved had been forced to give up caring for their relatives, their relatives would have been forced to turn to the resources of the state in providing them with the care they needed. As Mr Justice Collins pointed out in his judgment, this would have left the state with a much higher bill to pay in the end.

Alexander Campbell is a barrister at Arden Chambers. He can be contacted on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it..

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