Hurley & Ors v Secretary of State for Work And Pensions

A benefit-cap scheme may lawfully use a bright-line rule, and hardship in individual cases does not itself establish irrationality or disproportionality. However, where the scheme foreseeably causes disabled people to lose trusted family carers, the resulting indirect discrimination must be objectively justified. In the context of State benefits, justification is assessed under the manifestly without reasonable foundation standard, but the discriminatory effect must first have been considered. Failure to consider the profound impact on disabled people of losing family care meant that the exclusion of individual family carers from the benefit-cap exemption was not objectively justified and was unlawful under Article 14 read with the Convention rights engaged.

Two conjoined judicial review claims challenged Part 8A of the Housing Benefit Regulations 2006, inserted by the Benefit Cap (Housing Benefit) Regulations 2012. The claimants received Carer’s Allowance while providing at least 35 hours’ unpaid care each week to severely disabled relatives. Carer’s Allowance was included among benefits subject to the cap, although households containing a person receiving disability living allowance were exempt.

The claimants argued that the omission of individual family carers was irrational or disproportionate and discriminatory under Article 14 of the ECHR. The central issues were whether the common-law challenge succeeded and whether the cap’s impact on disabled people who might lose trusted family care was objectively justifiable.

1. Common-law challenge. The court applied the conventional irrationality test, with appropriately intense scrutiny because fundamental rights were engaged. It also considered the proportionality approach, but held that neither approach justified invalidating the Regulations. The measure had been approved by both Houses of Parliament, concerned general social and economic policy, and required considerable judicial caution.
2. The benefit cap pursued legitimate aims, including reducing benefit expenditure, incentivising work and imposing a limit on total household benefits. A bright-line rule could in principle be justified by simplicity and ease of administration. Hardship, even serious hardship, did not alone make the scheme unlawful.
3. Receipt of Carer’s Allowance engaged the claimants’ rights under Article 1 of the First Protocol. The second claimant’s interest in receiving intimate care from her granddaughter engaged Article 8. The desire of a disabled person to receive care from a trusted family member was closely connected with personal dignity and fell within private and family life.
4. The cap caused indirect discrimination against disabled people who were cared for by trusted family members, because some would lose that care while other disabled people would retain it. The discrimination required objective justification. The four-stage proportionality inquiry was whether the objective was sufficiently important, whether the measure was rationally connected to it, whether a less adverse measure was available, and whether a fair balance had been struck.
5. In the State-benefit context, the applicable standard was whether the policy was manifestly without reasonable foundation. That standard still required careful scrutiny, particularly where vulnerable persons were affected. The impact assessments and Parliamentary material had not considered the effect on disabled people of losing family carers. The Government therefore failed to establish the necessary reasonable relationship of proportionality.
6. The failure to exempt at least individual family carers was consequently unlawful because it constituted unjustified indirect discrimination. The court suggested that a simple exemption for single recipients of Carer’s Allowance providing family care could address the problem.