gavelThe High Court has ruled that the Secretary of State for Work and Pensions, Iain Duncan Smith MP, unlawfully discriminated against disabled people by failing to exempt their unpaid full-time carers from the benefit cap.  

The Court upheld that carers’ Article 14 rights under the European Convention on Human Rights had been contravened by not considering the impact on disabled people.

Mr Justice Collins allowed a claim for judicial review brought by two affected families. In each family, an adult relative is providing full-time, essential care to their elderly and disabled grandmother.  They are able to perform their caring roles only with the support of state benefits, covering their housing and living expenses, and both receive Carer's Allowance.

The families successfully argued that the benefit cap is unfair and unlawful because of its impact on disabled people and their carers. To qualify for Carer’s Allowance, carers must be providing full-time care – upwards of 35 hours a week – to a severely disabled person who receives Disability Living Allowance (DLA).  The Secretary of State has provided an exemption from the cap to those who receive DLA – but not to their carers. Two categories of carer only are exempt: carers for children or spouses.  Any carer who provides care to another adult, such as a parent or grandparent, or a disabled child aged 18 or over – as many parents of adults with learning disabilities do – is caught by the cap, leaving them without enough money for essential living costs and in the case of one of the claimants in this case, resulting in homelessness.

In his judgement, Mr Justice Collins recognised the huge contribution that carers make to society, commenting that: "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.”

Mr Justice Collins noted that: “It must be obvious that those who are so disabled as to need at least 35 hours care each week are properly to be regarded as some of the most vulnerable members of our society.” 

He ruled that "hardship can be and has been created by the cap as it affects family carers such as these claimants." And, because the financial impact of the cap can be very significant: "it is no surprise that some would find and have found it impossible, despite the misery produced, to continue to care full-time so that there has to be recourse to public funds.” 

The result is that many unpaid carers have stopped providing care because of the cap – and the State now must pick up the tab and pay the substantial cost of providing alternative care to their disabled relatives.

The solicitor for the families, Rebekah Carrier from Hopkin Murray Beskine, welcomed the ruling and urged Duncan Smith to take urgent action to address this discriminatory effect of the benefit cap.  “An exemption to the cap for my clients and others in a similar position must be drafted and laid before Parliament as soon as possible,” she said.

“My clients have been hit by the benefit cap because they are disabled or they provide essential care to their disabled relatives. They are not skivers – they are strivers. They provide full-time care and save the State money. The High Court has recognised that, although the government seeks to justify the cap by the financial savings achieved, the long-term consequences of this arbitrary benefit cap are likely to have not only devastating consequences for individual disabled people and those who care for them, but serious financial costs. If [claimants] Ashley Hurley or Lee Palmer are forced into stopping their important work as carers, the State will have to pick up the tab and arrange alternative care. This is not a fair or sensible policy. The government must now take urgent action to comply with the High Court's ruling.”

Ruling welcomed

Rebecca Hilsenrath, CEO at the Equality and Human Rights Commission said, welcomed the ruling. “The effect could be profound and the loss of a trusted carer devastating,” she said. “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.”

Heléna Herklots, chief executive of Carers UK, said the judgement was a significant step towards greater recognition for carers and a strengthening of their rights.

“People who are providing full-time care to a loved one will find it near-on impossible to cover the extra costs of the benefit cap. We already know from research with our members that nearly half of carers who provide substantial support to a loved one are struggling to make ends meet, and a similar number say financial worries are affecting their health.  

“Subjecting those who provide unpaid care to the benefit cap is unfair, counterproductive and inconsistent with the Government’s stated aims for the policy. We hope the government accepts the High Court’s decision and brings forward new regulations to give all carers equal rights.”