High Court rules Benefit Cap discriminates against full time Carers

high_court_1370274cToday’s damning High Court judgment against the Government for discriminating against full-time carers by including them amongst those hit by its Benefit Cap puts a real spanner in the works at DWP. Only last month, a DWP Minister was vehemently defending the policy, insisting that because some carers work already all those providing care for at least 35 hours a week should also be required to get a paid job. Today, DWP is having to consider this judgment and work out whether an appeal has any reasonable prospect of success.

Z2K is opposed to the Benefit Cap on a point of principle – we believe claimants should receive the Social Security benefits to which they are entitled. However, we are especially concerned about the impact of the cap on full-time carers because we have seen the terrible strain several clients in this position have been put under – having to choose between continuing to care full-time and thereby facing the prospect of losing their home.  One of those, Jacqui, bravely explained her situation better than we ever could the Work & Pensions Select Committee.

In his withering judgment against the Government, Lord Justice Collins first poured scorn on DWP’s use of the term to “workless families” to describe giving full-time care to a relative, saying that it was “somewhat offensive” and that “reasonable people would recognise that to care for a seriously disabled person is difficult and burdensome and could properly be regarded as work” and that “those who are prepared to make the sacrifice involved in undertaking such care would not normally be regarded as work shy and content to rely on benefits”.

Next, Collins dismantled the Government’s QC’s criticism of the claimants’ argument that Discretionary Housing Payments were only short-term, revealing that DWP’s own evidence stated that is exactly what they are. There is little doubt ministers will continue to face both ways on DHPs – saying there doesn’t need to be so much funding because they are only a short-term measure and in the next breath pretending they are available as a long-term solution for any particularly sympathetic household. But Collins’ criticism makes that much harder to get away with in future.

Next, he pointedly says “that (this policy) has produced hardship, there can be no doubt” and that “…. it is clear that the evidence obtained from Carer’s UK that (these claims) are by no means unique and that because of the hardship produced by the cap, carers have had to cease caring,” before boldly declaring that he is “not happy with this legislation”.  After deciding against declaring the regulations themselves to be unlawful, he states that “consideration should be given to whether there should be an amendment which does at least exempt individual family carers such as these claimants since these are very few and 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”.

Finally, while he reasons that “as a result of the cap 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 …. This will inevitably have an adverse effect on the disabled since they no longer receive care from the family member or relation in whom they trust”.  In conclusion, Collins’ states that “the failure to exempt at least individual family carers is no lawful because it amounts to indirect discrimination which is not objectively justifiable”.

Ministers have an early opportunity to act on Collins’ judgment when the Welfare Reform & Work Bill starts its Committee State in the House of Lords next week. In fact, Baroness Meacher who recently led the Lords’ rebellion against the Chancellor’s cuts to Tax Credits, has already tabled an amendment challenging the Government to disregard Carer’s Allowance for the purposes of the cap. Today’s judgment actually goes further than that, but the debate on this amendment allows Peers to press that it be acted upon.

In the meantime, Z2K believes that DWP must now either temporarily suspend the application of the Benefit Cap to full-time carers until the outcome of any appeal is known, or at least provide the additional DHP funding needed to ensure those affected can have any shortfalls paid and that they don’t end up being made homeless as a result of a policy that has been found to be unlawful.

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About Marc Francis

Marc leads on all of Z2K’s campaigning. He was formerly the Housing & Neighbourhoods Policy Advisor at Save the Children and before that, Public Affairs Manager at Shelter, leading its successful campaigns for mandatory Tenancy Deposit Protection by private landlords and against the use of Bed & Breakfast accommodation for homeless families.

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