Legal Challenge to Benefit Cap Imposes Indirect Discrimination Against Carers

Citation: [2015] EWHC 3382 (Admin)
Judgment on

Introduction

The case of Hurley & Ors v Secretary of State for Work And Pensions scrutinizes the legality of the benefit cap imposed by the Housing Benefit Regulations 2006 (as amended) under the Welfare Reform Act 2012, particularly in relation to carers. The case delves into significant legal discourse on the rationality of legislation, potential indirect discrimination against unpaid carers and those they care for, and the interaction of domestic law with European Convention on Human Rights (ECHR).

Key Facts

The judicial review consolidated two claims related to the application of the benefit cap on individuals, including the first and third claimants, who receive Carer’s Allowance (CA) for providing at least 35 hours of care weekly to severely disabled persons. The cap aims to achieve fairness among working households and increase work incentives, while also reducing benefits expenditure. The claimants argue that the non-exemption of CA recipients like themselves is irrational (or disproportionate) and discriminatory contrary to Article 14 of the ECHR, while the defendant highlights the Parliamentary debate and approval process underlying the cap’s implementation.

The case hinges on several key legal principles:

  1. Rationality and the Wednesbury Principle: The traditional common law test of irrationality, derived from Associated Provincial Picture Houses v Wednesbury Corporation [1948], requires that all relevant factors be included in the decision-making process, and only decisions no reasonable authority would make be considered irrational. The judge in this case acknowledges some recent judicial opinion favoring a proportionality test, noting that the level of scrutiny may depend on the context and gravity of the issue decided.

  2. Proportionality: The notion of proportionality provides structural scrutiny, considering suitability, necessity, and balance of benefits versus disadvantages within judicial review. It is particularly relevant in assessing interference with ECHR rights.

  3. Impact on Fundamental Rights: The claim that non-exemption of CA recipients negates A1P1 rights of the European Convention on Human Rights is accepted, necessitating a justification for any interference. The potential indirect discrimination also intersects with Article 14 (prohibition of discrimination) and Article 8 (right to respect for private and family life).

  4. Discrimination - Direct, Indirect, and Thlimmenos Discrimination: Indirect discrimination occurs when a policy disproportionately affects a group with a particular status. Thlimmenos discrimination extends this notion to cases where the State, without reasonable justification, fails to treat differently persons whose situations are significantly different.

  5. The “Manifestly Without Reasonable Foundation” Test: This standard is applied to differential treatment when considering general measures of economic or social strategy, particularly in the context of State benefits, deferential to governmental policy choices unless shown to be manifestly without reasonable foundation.

Outcomes

The court concludes that the regulation applying the benefit cap on individual carers is not per se unlawful at common law, as the legislators and Parliament considered the necessary material facts and the decision was therefore reasoned. However, the non-exemption of these individual family carers is deemed unlawful due to indirect discrimination against the disabled, which is not objectively justifiable. The court posits that if the policy had explicitly considered the effect of the benefit cap on carers of family members, there might be a different discernment regarding the legality of the discrimination.

Conclusion

In the case of Hurley & Ors v Secretary of State for Work And Pensions, the court underscores the principle of rationality as a staple in judicial review, but also opens the door to a more nuanced proportionality assessment, particularly where fundamental rights are engaged. Despite acknowledging the legitimate aims of the benefit cap, the court finds that failing to exempt individual family carers results in unjustifiable indirect discrimination against the disabled. Ultimately, the decision illustrates the tension between Parliamentary sovereignty, statutory interpretation, and human rights considerations, emphasizing the complexities of balancing policy objectives with the rights of vulnerable individuals under the ECHR.