A high court judge has ruled that Iain Duncan Smith’s welfare policy unlawfully discriminates against disabled people by failing to exempt their carers from the benefit cap. The ruling is the second this year to criticise the cap. In March, the supreme court found that the cap left people claiming benefits unable to house, feed or clothe their family and was therefore in breach of the UK’s obligations regarding international human rights.
Mr Justice Collins said the government’s decision to apply the cap to full-time carers for adult relatives had created serious financial hardship for them, forcing many to give up caring for loved ones, and had also placed extra costs on the NHS and care services.
The ruling comes after two carers brought the case against the Department for Work and Pensions (DWP) following serious concerns that the benefit cap would unfairly harm those who care for their disabled children and relatives. The carers were caring for more than 35 hours a week, the judge said that they were effectively in work, even though they were in receipt of benefits, and therefore should be exempt from the cap.
Carers are able to claim about £60 a week if they care for relatives. These claims, however, were to be included in the £500 a week benefit cap, which was introduced by the government in the belief that so-called “workless” families need to experience financial loss, a decrease in basic security and a severe decline in their standard of living in order to “incentivise” them to try harder to get a job.
On Thursday, the High Court ruled that the government had breached article 14 of the European Convention on Human Rights. Family carers who receive Carer’s Allowance should be exempt from the benefit cap. The High Court ruled that the Secretary of State for Work and Pensions had indirectly discriminated disabled people by failing to exempt unpaid carers for disabled family members from the cap.
Collins said: “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.”
Campaigners have welcomed the decision, highlighting the damaging effects the cap would have had on carers looking after adult disabled relatives.
Rebecca Hilsenrath, chief executive of the Equality and Human Rights Commission, said: “We are pleased that the court has found the impact on disabled people of losing a family carer had not been properly considered.
“The effect could be profound and the loss of a trusted carer devastating.
“The substantial reduction of income could jeopardise the ability of those affected to continue to care for severely disabled relatives. The court noted that the Secretary of State did not provide any information to Parliament about the effect on disabled people if their family carer were unable to continue.
“The court also held that, rather than saving public money, it would cost considerably more for the care to be provided by local authorities or the NHS.”
Laywers acting for the secretary of state had argued that unpaid carers should be treated as unemployed people who should have to make the same choices as anyone else about whether to work or cut their living costs. But Collins said those providing full-time care could not be in full-time work unless they gave up or cut back significantly on their caring responsibilities.
Unpaid carers made “a huge contribution to society” and “saved the taxpayer the equivalent of £119bn a year,” he said. Were carers forced to give up their role, taxpayer-funded services would have to spend huge amounts providing the care instead.
The judge added that the government should exempt carers because “the cost to public funds if the cap is to be maintained is likely to outweigh to a significant extent the cost of granting the exemption.”
He said: “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.
“Reconsideration will I hope be given to whether the present regulatory regime is appropriate, having regard to the hardship it can and does produce.”
A DWP spokesperson said: “We are pleased that the court agrees that the benefit cap pursues a legitimate and lawful aim.
The court didn’t actually agree that.
“The Government values the important role of carers in society – and 98% are unaffected by the cap. We are considering the judgment and will respond in due course.”
On Thursday, the following “urgent” bulletin was released from the Department for Work and Pensions:
Judicial Review in the case of R v Secretary of State of the inclusion of Carer’s Allowance in the benefit cap.
1. Today the judgment has been handed down in a judicial review in the case of R v Secretary of State of the inclusion of Carer’s Allowance in the benefit cap.
2. We are pleased that the Court agrees that the benefit cap pursues a legitimate and lawful aim.
3. However the Court has asked us to look again at the indirect impact on those disabled people whose carer is subject to the cap on household benefit payments.
4. We will consider this judgment and set-out our position in due course. We are continuing to apply the benefit cap as now, and there is no change to applying the cap to carers.
The bulletin also provides some questions with answers to enable staff to respond to any enquiries they may receive. You can read those here.
The standard responses to many of the anticipated questions are:
“We are considering the judgment and will set-out our position in due course.”
“The benefit cap continues to apply.”