QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) Ashley Hurley
(2) Mary Jarrett
(3) Lee Palmer
- and –
|Secretary of State for Work and Pensions
- and -
|Equality and Human Rights Commission
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: 21st and 22nd October 2015
Crown Copyright ©
Mr Justice Collins:
"…..[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.
"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Disability living allowance (DLA) is being superseded by what is called a personal independence payment.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.
"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 public confidence in the welfare system, so that recipients are not stigmatised or resented, is undeniably a legitimate aim. In the language used by ECtHR in Hoogendijk v. Holland 40 EHRR SE189 and other cases, the benefit system is the means by which society expresses solidarity with its most vulnerable members. That being so, it is in principle legitimate to reform the system when necessary to respond to a threat to that solidarity."
I shall come back to these important observations since 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.
"[The amendment] is consistent with an intention to exempt the DLA and equivalent benefits but it includes some other benefits where we do not think that the argument for an exemption is as clear-cut. The exemption for DLA means that in effect we will be exempting carer's allowance recipients in households where one member or a couple or a dependant child is severely disabled and the other member cares for them. That does not arise in cases where the carer's allowance claimant is caring for someone outside the household."
Mr Grayling continued:-
"The reality is that the cap is all about influencing behaviour, it is not about creating hardship. If we succeed in influencing behaviour, the number of cases affected by the cap will be cut to a minimum. However, we will only influence behaviour if we have a simple rule which people can understand, and not one hedged about with numerous exemptions that only welfare rights experts can follow. The simple message to every citizen of this country as they enter adult life is that there is a limit to the amount of financial support that the State will provide to people if they fall on hard times, and therefore they need to adapt their circumstances to reflect that reality".
These claims show that hardship can be and has been created by the cap as it affects family carers such as these claimants, and the last sentence of Mr Grayling's observations does not seem to be relevant to most if not all carers. Nonetheless, it seems that what he said formed and continues to form the basis for the imposition and application of the cap.
"On carers, a question was asked about why those in receipt of DLA were excluded but not those receiving carers allowance. The benefit system is designed to provide financial support for carers when their caring responsibilities prevent them from working full time. As such, for the purpose of the cap, the carer's allowance should be treated in the same way as other income maintenance benefits. If the carer is in the same household as someone who is entitled to DLA……, that household will be exempt from the cap."
Whether that answers the concerns raised I will leave others to judge. In the House of Lords, when the same points were raised, Lord Freud gave much the same answer but added that most carers of working age wanted to retain a foothold in the labour market and 90% of those receiving carer's allowance were claiming another out-of-work benefit which showed they were looking for work.
"I acknowledge and re-acknowledge the vital role that carers fulfil, but I must return to our belief that it is not right that those on benefit can receive more than the average family wage…..[O]ne thing we are not looking to encourage is a change in the carer's behaviour so that they stop caring. That is absolutely not where we want to go. However, if the person being cared for is in a separate household, there is no obvious reason why the cap should not apply. Many carers of working age want to retain a foothold in the labour market where possible not just for their financial well-being but to enhance their lives and the lives of those for whom they care."
"As Professor Paul Craig has shown (see eg. 'The Nature of Reasonableness' (2013) 66 CLP 131), both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision maker's view depending on the context. The advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages. There seems no reason why such factors should not be relevant in judicial review even outside the Convention and EU law. In the context of fundamental rights, it is a truism that the scrutiny is likely to be more intense than where other interests are involved".
"The concept of 'private life' is a broad term not susceptible to exhaustive definitions. It covers the physical and psychological integrity of a person. It can sometimes enhance the aspects of an individual's physical and social identity…..Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. Though no previous case has established as such any right to self-determination as being contained in Article 8……, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees".
And in paragraph 65 the Court stated:-
"The very essence of the Convention is respect for human dignity and human freedom".
"There is no principle of law which circumscribes the extent to which the court can review an order which has been approved by both Houses of Parliament under the affirmative resolution procedure".
"….when a statutory instrument has been reviewed by Parliament, respect for Parliament's constitutional function calls for considerable caution before the court will hold it to be unlawful on some ground (such as irrationality) which is within the ambit of Parliament's review. This applies with special force to legislative instruments founded on consideration of general policy."
It is clear from decisions such as R v. SS for Local Government ex p Nottinghamshire CC  AC 24 that public finance is a particularly, as it was put by Sedley LJ in R(Bapio) v. SSHD  EWCA (Civ 1)39, inept subject for judicial scrutiny, albeit such scrutiny is not to be ruled out. Mr Sheldon has also drawn attention to observations of Laws LJ in R(Miranda) v. SSHD  1 WLR 3140 in describing the 'difficulty in distinguishing [judicial consideration of fair balance] from a political question to be decided by the elected arm of government'. It seems to me that I must be equally circumspect in applying proportionality or irrationality however intense the review should be.
"36. But even if there is no sufficient rational connection between the aim and the rule, is the Secretary of State nevertheless justified in adopting a "bright line" rule which enables those administering the scheme quickly and easily to identify those who qualify? The Strasbourg jurisprudence is not altogether clear on this question. On the one hand, it tends to disapprove of a "blanket" exclusionary rule, such as that on prisoners' voting (Hirst v United Kingdom (No 2) (2005) 42 EHRR 41), or a "blanket" inclusionary rule, such as that governing the retention of DNA profiles (S and Marper v United Kingdom (2009) 48 EHRR 50). On the other hand, it recognises that sometimes lines have to be drawn, even though there may be hard cases which sit just on the wrong side of it (see, for example, Animal Defenders International v United Kingdom (2013) 57 EHRR 21). The need for bright line rules in administering social security schemes has been recognised domestically, for example in R (RJM) v Secretary of State for Work and Pensions  UKHL 63,  1 AC 311. Nevertheless, it was the absence of any possibility of taking the particular circumstances of the case into account which led to the finding of a violation in Ponomaryov (para 62).
37. The issue is therefore two-fold. First, even if a bright line rule is justified in the particular context, the particular bright line rule chosen has itself to be rationally connected to the aim and a proportionate way of achieving it: see, for example, R (T) v Chief Constable of Greater Manchester Police (Liberty intervening)  UKSC 35,  AC 49. Secondly, however, it is one thing to have an inclusionary bright line rule which defines all those who definitely should be included. This has all the advantages of simplicity, clarity and ease of administration which are claimed for such rules. It is quite another thing to have an exclusionary bright line rule, which allows for no discretion to consider unusual cases falling the wrong side of the line but equally deserving. Hitherto the evidence and discussion in this case has tended to focus on whether there should be a bright-line rule or a wholly individualised system. There are obvious intermediate options, such as a more properly tailored bright line rule, with or without the possibility of making exceptions for particularly strong cases which fall outside it. There are plenty of precedents for such an approach, including in immigration control."
"The Court has established in its case law that only differences in treatment based on an identifiable characteristic, or 'status', are capable of amounting to discrimination within the meaning of Art.14. Moreover, in order for an issue to arise under Art 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification, in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised".
The Court goes on to recognise the wide margin of appreciation accorded to a State when it comes to general measures of economic or social strategy. It also makes the point that any welfare system, to be workable, may have to use broad categorisations to distinguish between different groups in need.
"The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed by the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different".