COMMENT & ANALYSIS Blogs Act for UK Rights Blog Carers challenge the benefit cap policy on human rights grounds Hurley and others v Secretary of State for Work and Pensions  EWHC 3382 (Admin) The Human Rights Act has empowered two carers and a disabled grandmother to successfully challenge the discriminatory impact of a government policy which sees the benefit cap applied to people delivering care to a family member for 35 hours or more. On the 26 November 2015, the High Court heard how, as a result of the benefit cap policy introduced in 2012, one of the carers, Ashley Hurley (AH) had been unable to keep up rent payments on her home and had been evicted with her three children, and how another full-time carer, Lee Palmer (LP) was on the verge of being ‘tipped into destitution’ after deductions to his housing benefit were made. The court also heard how, as a result of the cap, Mary Jarrett (MJ) the disabled grandmother of AH was facing losing the support of her granddaughter and with it, her dignity and independence. Background Both carers had found it increasingly difficult to continue providing over 35 hours of essential care a week for their disabled grandmothers after cuts were made to their benefits in line with the Welfare Reform Act, 2012. Had they been caring for their young children or their partners, AH and LP would have been exempt from the benefit cap, which works by deducting money from housing benefit after the total amount of benefits to which a couple or individual is eligible exceeds a specified amount (£350 for individuals without children and £500 for couples or lone parents). But as the law currently stands, carers providing full time care to other family members including parents, grandparents or adult disabled children, are not given the same recognition or financial support. Both they and the people they care for may face very difficult decisions as a result. As the situation now stands, the advice from the Department of Work and Pensions for people finding themselves in this situation is to make up the shortfall by living within their means, getting a job or applying for discretionary housing payments. However, the court did not accept that these options were fair or realistic in supporting carers to balance their full time caring role with the growing financial burden of doing so. Impact of the benefit cap on carer’s human rights The court found the cap to be in violation of all three claimants’ right to non-discrimination in the Human Rights Act (protected by Article 14) because it treats some family carers differently to others without a good enough reason to justify why. Eligibility for exemption from the benefit cap is based on a narrowly defined definition of household to mean a parent or couple and their dependent child. But for many families, this definition does not reflect the reality, a point summed up by the judge, Mr Justice Collins in his judgment: “It is … a result of the cap that 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. The existence or the level of care provided by carers will be affected and the disabled for whom they care will lose to a greater or lesser extent their care. This will inevitably have an adverse effect on the disabled since they will no longer receive care from the family member or relation in whom they trust.” The right to non-discrimination in the Human Rights Act is a special type of right, which needs to be linked to one of the other rights it protects (“piggy-backing” on to a right). This includes the right to peaceful enjoyment of possessions (protected in Article 1 of Protocol 1). In this case the right to receive the benefit is a possession covered by Article 1 of Protocol 1. It was generally accepted that the benefit cap constituted an interference with this right for AH and LP. The link between personal care and the right to respect for private life in the Human Rights Act (Article 8) was also spelt out by Mr Justice Williams when he said that the ‘desire for care to be administered by a particular family member or relation will almost always be likely to fall within Article 8’. MJ’s right to respect for private life (Article 8) was engaged on this basis in recognition that her dignity may well be compromised if, against her wishes a person unknown to her were to take over the intimate care that her granddaughter had provided for her up to that point. Do the means justify the ends? Apparently not in this case. The aim of the benefit cap is to reduce public spending on benefits and to incentivise people to work but for these families and others like them, it was noted that ‘’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 exception.” This is taking into account the costs to the NHS and to Local Authorities of rehousing where carers are unable to make up the shortfall in their housing benefit to pay rent, and the costs of replacing the care that was previously being provided by family to allow them to work in other paid employment. - The Future For carers and disabled people in similar circumstances to AH, LP and MJ, this judgment flags up a failure to respect their right to receive the benefit they are entitled to, free from discrimination. Its chief significance comes from the fact that it calls for closer attention to the unplanned, potentially devastating effects of policies like this one on people in vulnerable situations and those already facing hardship. What the Human Rights Act has provided these people with, is a vital safeguard against those effects. Using the Act to challenge unfair treatment can lead to important changes that make the system more rights respecting for everybody. Following on from this judgment the government are having to reconsider the policy of capping carer’s benefits.