Ashley Hurley and Others v Secretary of State for Work and Pensions Equality and Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 26 November 2015 |
| Neutral Citation | [2015] EWHC 3382 (Admin) |
| Docket Number | Case No: CO/2717/2014 & CO/3220/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 November 2015 |
[2015] EWHC 3382 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: CO/2717/2014 & CO/3220/2014
and
Ms Caoilfhionn Gallagher and Mr Sam Jacobs (instructed by Hopkin Murray Beskine) for the claimants
Mr Clive Sheldon QC and Mr Simon Pritchard (instructed by the Treasury Solicitor) for the defendant
Mr Dan Squires (instructed by the Equality and Human Rights Commission) for the intervener
Hearing dates: 21 st and 22 nd October 2015
This judgment deals with two claims which I ordered should be heard together. One is by the first two claimants, the other by the third. Each claim concerns Part 8A of the Housing Benefit Regulations 2006 which was inserted by Regulation 2 of the Benefit Cap (Housing Benefit) Regulations 2012. This provides for a benefit cap on some including the first and third claimants who receive Carer's Allowance (CA) since they provide unpaid care for severely disabled persons for at least 35 hours a week.
The statutory provisions which enable Regulations to be made to impose the cap are contained in Sections 96 and 97 of the Welfare Reform Act 201The purpose behind the cap is broadly to achieve fairness between working households and those on benefits and to increase incentives to work. By this means savings are intended to be obtained in respect of benefits payable to individuals or couples.
The claimants advance two grounds in challenging the scheme set up in Part 8A of the 2006 Regulations. First, it is said that not to exempt those such as the first and third claimants who receive CA is unlawful because it is irrational or, as is submitted to be the present test, disproportionate. In the alternative, it is said that CA should not have been included in the benefits which could be capped. Secondly, it is said that there is unlawful discrimination contrary to Article 14 of the ECHR in the impact both on carers and those for whom they care.
The Equality and Human Rights Commission applied for and was granted the right to intervene by submitting written argument, it being left to the trial judge to decide whether any oral argument should be permitted. I allowed Mr Squires to put oral argument before me. There was no objection raised by Mr Sheldon, QC. For obvious reasons Mr Squires' submissions concentrated on the Article 14 ground.
The cap is set by reference to net earnings of households at present at £350 per week for individuals without children and £500 per week for couples or lone parents. If the cap is applied, regulation 75D of the 2006 regulations provides:-
"…..[T]he relevant authority must reduce the amount of housing benefit to which the claimant is entitled by virtue of Section 130 of the Act by the amount by which the total amount of welfare benefits exceeds the relevant amount".
The relevant authority will be the local authority and the relevant amount is the amount of housing benefit which is payable to a particular claimant.
It is said that the imposition of the cap can be avoided by obtaining employment during hours when care is not needed. In addition, its effect can be avoided by budgeting or by reducing accommodation costs by moving to cheaper accommodation or persuading the landlord to reduce rent. It may too be possible to obtain a grant from local authorities to cover, inter alia, carer's travel costs pursuant to the Care Act 2014. It is also said that additional benefit in the form of Discretionary Housing Payments (DHP) could be obtained to make up the loss imposed by the cap.
Section 97(3) of the 2012 Act provides that the first regulations to be made pursuant to s.96 must be the subject of positive resolutions by each House of Parliament. Subsequent regulations are subject to negative resolution (s.97(4)). Thus the 2012 Regulation inserting Part 8A have been considered by both Houses of Parliament. I have been referred to extracts from Hansard which, it is contended on the defendant's behalf, shows that all material considerations were taken into account in the course of deciding on the terms of the regulations insofar as they applied a benefit cap to carers. This is obviously an important consideration since, if established, it is very relevant in considering whether the provisions in question are unlawful whatever the test to be applied may be.
Section 96(1) of the 2012 Act gives power to make regulations which may provide for a benefit cap to be applied to the welfare benefits to which a single person or couple is entitled. Section 96(2) provides that where a single person's or couple's total entitlement to benefits exceeds the relevant amount such entitlement will be reduced by an amount 'up to or equalling the excess'. There can thus be some discretion not to reduce by the full amount. Section 96(4) confers general powers for the regulations to identify the benefits from which a deduction is to be made (s.96(4)(b)) and to provide for exceptions to the application of the benefit cap (s.96(4)(c)). Section 97(1) provides that regulations under s.96 may make different provision for different purposes or cases. Thus, as is common in this sort of legislation, the detail of the manner in which the general power in the primary legislation is to be put into effect is to be dealt with in regulations.
The benefit chosen for deduction is housing benefit. Regulation 75G identifies the benefits for which the cap applies. These include CA. Exceptions to the application of the cap are set out in Regulation 75F as amended. These include Regulation 75F(e) where:-
"the claimant, the claimant's partner or a young person for whom the claimant or claimant's partner is responsible, is receiving a disability living allowance".
Disability living allowance (DLA) is being superseded by what is called a personal independence payment. This is in all material respects available on the same basis as DLA and I will continue to refer to DLA.
CA is only available where a carer is providing a minimum of 35 hours each week caring for a person who is sufficiently disabled to receive DLA at the middle or highest rates. The carer must be over 16 and not in full-time education or employment which provides more than £110 per week, net of tax, and various other allowable expenses, the details of which it is not necessary for me to set out. Entitlement is dependent on the person being cared for having sufficient disability to require substantial care on a regular basis.
In 2013 a claim for judicial review was lodged against the defendant on the ground that the benefit cap was unlawful in that it provided unjustifiable indirect discrimination against women in that it particularly affected non-working households with several children living in high cost areas of housing, notably London. The majority of such households consisted of single parents, predominantly women, so that a higher number of women were affected by the cap than men. The claim went to the Supreme Court whose decision is reported in [2015] 1 WLR 1449 under the title R(SG) v. SSWP. The case is also referred to as R(JS) v. SSWP which was the title in the Court of Appeal.
The judges in SG were divided in that a majority decided that the effect of the cap on the children of single parents affected by it was incompatible with the obligation of the defendant to treat the best interests of children as a primary consideration under the UN Convention on the Rights of the Child. But Lord Carnwath, who was one of the three forming the majority, decided that there was no connection between this failure and the alleged breach of Article 14. Lady Hale and Lord Kerr took a different view and would have allowed the claimants' appeals on that basis. Lord Reed and Lord Hughes, who with Lord Cornwath formed the majority dismissing the claimants' appeal, decided that the discrimination was justifiable in all the circumstances.
There was in SG and in the claims before me no challenge to the compatibility of the 2012 Act with the ECHR nor to the fixing of the 'relevant amount'. The court in SG decided that the 2012 Regulation pursued a legitimate aim. There were three elements. First, there was the aim of securing the economic well-being of the country by reducing the expenditure on benefits. That is an aim which can be legitimate even it has discriminatory effect as has been accepted by the ECtHR: see for example Sidabras v. Lithuania (2004) 42 EHRR 104 at paragraph 55. In itself, it will not justify a discriminatory effect unless there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
The second aim is incentivising work. This too is legitimate and its importance lies in making efforts to assist those capable of work to find work. Those efforts are perhaps better described as imposing financial disadvantages if efforts to obtain work are not made. The third aim is the imposition of a reasonable limit on the total amount which a household can receive in welfare benefits and that is also legitimate. Apart from being an aspect of securing the economic well-being of the country, it also in Lord Reed's view was intended to reflect a political view as to the nature of a fair and healthy society. Lord Reed continued thus in paragraph 66:-
"As Ministers explained to Parliament, this objective responds in particular to a public perception that the benefits system has been excessively generous to some recipients: a perception which is related to the stigmatisation in the media of non-working households receiving high levels of benefit. The maintenance of...
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