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High Court victory: Benefit cap and carers
Breaking news via the Press Association:
“Govt failure to exempt individual family carers receiving carers allowance from the benefit cap is ‘discrimination’ and not lawful”
Background:
http://www.belfasttelegraph.co.uk/news/uk/families-to-learn-outcome-of-high-court-benefit-cap-challenge-34235853.html
http://www.mirror.co.uk/news/uk-news/mum-four-kids-forced-sleep-6778038
Judgment @
http://www.doughtystreet.co.uk/documents/uploaded-documents/Hurley__others_-v-_SSWP.doc
More @
http://www.doughtystreet.co.uk/news/article/high-court-rules-that-benefit-cap-discriminates-against-disabled-people
http://www.doughtystreet.co.uk/documents/uploaded-documents/Press_Release_Carers_26_11_2015.pdf
Hot off the press .... new DWP guidance
DWP says that ‘we are pleased that the Court agrees that the benefit cap pursues a legitimate and lawful aim’ and that ‘we will consider this judgment and set-out our position in due course’.
However, in the meantime, the DWP says ‘we are continuing to apply the benefit cap as now, and there is no change to applying the cap to carers.’
The DWP seem to be doing their utmost to frustrate legal challenges, but it seems to me that despite the DWP’s efforts, unless you have gone over to Universal Credit, there remains a right of appeal against the cap.
Here’s my argument:
S97(6) of the Welfare Reform Act 2012 provides:
(6) In Schedule 2 to the Social Security Act 1998 (decisions against which no appeal lies) after paragraph 8 there is inserted—
“Reduction on application of benefit cap
8A A decision to apply the benefit cap in accordance with regulations under section 96 of the welfare Reform Act 2012.”
The trouble for the DWP is that there is no right of appeal for housing benefit cases provided in the 1998 Act. The right is provided by paragraph 6 of Sch7 of the Child Support Pensions and Social Security Act 2000. There has been no amendment to Sch 7 which provides for there to be no appeal against the imposition of the cap via housing benefit.
Paragraphs 12 -14 of Sch 11 of the 2012 Welfare Reform Act provides:
“Child Support, Pensions and Social Security Act 2000 (c. 19)
12 Schedule 7 to the Child Support, Pensions and Social Security Act 2000 is amended as follows.
13 (1) Paragraph 6 (housing benefit and council tax benefit: appeal to First-tier Tribunal) is amended as follows.
(2) In sub-paragraph (4), after paragraph (b) there is inserted—
“or where regulations under sub-paragraph (5A) so provide.”
(3) After sub-paragraph (5) there is inserted—
“(5A) Regulations may provide that, in such cases or circumstances as may be prescribed, there is a right of appeal in relation to a decision only if the relevant authority which made the decision has considered whether to revise the decision under paragraph 3.
(5B) The regulations may in particular provide that that condition is met only where—
(a) the consideration by the relevant authority was on an application,
(b) the relevant authority considered issues of a specified description, or
(c) the consideration by the relevant authority satisfied any other condition specified in the regulations.”
(4) In sub-paragraph (8)—
(a) the words from “make provision” to the end become paragraph (a);
(b) after that paragraph there is inserted—
“(b) provide that, where in accordance with regulations under sub-paragraph (5A) there is no right of appeal against a decision, any purported appeal may be treated as an application for revision under
paragraph 3.”
14 In paragraph 20(4) (regulations subject to affirmative procedure) for “or (4)” there is substituted “, (4) or (5A)”.
It is clear that Sch 11 is merely the enabling legislation for mandatory re-consideration before appeal, but there has been no amendment to the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations bringing Sch 11 into effect and S97(6) amends the wrong Act as far as HB is concerned. The right of appeal in HB cases appears to have been left unaffected so far by the 2012 Welfare Reform Act.
If that is the case, it seems to me that carers affected by the cap have more scope to challenge it than the limited scope provided by judicial review.
In a response yesterday to written question in parliament about the judgment, Minister for Disabled People Justin Tomlinson said -
‘The Government is considering the judgment and will set out its position in due course.’
‘The Government is considering the judgment and will set out its position in due course.’
i.e: The government is looking for an amenable judge (one who is a member of the right gentlemen’s club, went to the right public school or has an unfortunate and exploitable weakness for ladies of the night/small boys/hard drugs) to hear an appeal and come to a “well-informed and just decision”.
In a response yesterday to written question in parliament about the judgment, Minister for Disabled People Justin Tomlinson said -
‘The Government is considering the judgment and will set out its position in due course.’
Is there any effective time limit on this or can the Govt carry on ‘considering the judgement’ indefinitely?
If they are planning an appeal I believe it is 21 days unless the High Court specified a longer period. Is that right? Para 52.4 of the civil procedure rules? Maybe they don;t apply to this type of case?
if they got leave to appeal from the first instance judge, then as you say a limited period to get their appeal in
if the first instance judge refused leave to appeal, then they have to apply to the Court of Appeal for leave to appeal,
the time limits etc are set out in CPR 52
http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52
so really by now they should have made their mind up and either put their appeal in or applied for leave to appeal.
there’s an appeal tracker here: http://casetracker.justice.gov.uk/listing_calendar/search.jsp#
Other than that, of course, they could just amend the relevant bits of legislation but if they don’t appeal they have to do what the court said until they do amend (and then, presumably, face another challenge).
HTH
Thanks for your replies - that’s very helpful.
Jon.
From Carers UK today:
Carers UK presses DWP to act on High Court ruling to exempt carers from benefit cap
Fantastic news – Govt announces in Welfare Bill debate that carers receiving Carer’s Allowance will now be exempt from the benefit cap!
From Hansard:
Amendment 24 seeks to remove carer’s allowance from the list of benefits that are included within the benefit cap. As written, the effect is that recipients of carer’s allowance with a benefit income above cap levels would still be included in the cap but their carer’s allowance payment would be disregarded from the cap. That is the way that this amendment works ...
We do not consider that the disregard which this amendment would create is the right approach. We want to go further ... we will be exempting recipients of carer’s allowance from the benefit cap. This is of course complex and we will need to get it right ... we will bring forward an amendment at Third Reading, and then appropriate regulations in due course ...