23 October, 2020 Open access
23 October, 2020 Open access
The High Court has rejected a judicial review challenge to the government's decision not to increase financial support for recipients of carer's allowance in response to the coronavirus (COVID-19) pandemic.
In CC, R (On the Application Of) v HM Treasury & Anor  EWHC 2817 (Admin) (23 October 2020), the claimant, who was in receipt of income support, was a single parent with four children and met the conditions for payment of carer's allowance because of the circumstances of each of her three oldest children.
In June 2020, the claimant issued a claim for judicial review which was directed both to the Secretary of State for Work and Pensions and HM Treasury and identified the decision to be challenged as -
'The decision not to increase the rate of carer's allowance'.
The claim was on the basis that, while in response to the circumstances created by the COVID-19 pandemic, the standard allowance element of universal credit had been raised by £20.00 per week (under regulation 3 of the Social Security (Coronavirus) (Further Measures) Regulations 2020 (the Further Measures Regulations)), and while assistance had been provided to workers via payments to employers under the Job Retention Scheme (the JRS), and to self-employed people by payments under the Self-Employment Income Support Scheme (the SEISS), no additional assistance had been provided specifically to those entitled to receive carer's allowance.
However, with permission to apply for judicial review having been granted, the Secretary of State filed a Detailed Grounds of Defence which argued that, because the rate of carer's allowance is set in primary legislation (section 70(9) of and Schedule 4, Part III paragraph 4 to the Social Security Contributions and Benefits Act 1992 (the 1992 Act)) it was not open to the Secretary of State to increase that rate, and that such a decision had to be a matter for parliament.
While in an Application Notice dated 4 September 2020, the claimant accepted that her challenge that the defendants had acted unlawfully by failing to increase the rate of carer's allowance could not succeed, in a further Application Notice filed on 15 September 2020, she sought permission to amend her claim to challenge a different decision, described as -
'The decision not to increase financial support to recipients of carer's allowance who do not receive universal credit as part of the financial support measures introduced due to the COVID-19 pandemic'.
This claim was to the effect that, given the increase in the universal credit standard allowance and the introduction of the JRS and the SEISS, it was unlawful for the Secretary of State not to arrange to make an additional payment to those who meet the criteria for carer's allowance but who do not receive universal credit. (The claimant excluded those in receipt of universal credit because of the increase made by the Further Measures Regulations to the standard allowance).
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Introducing his decision, Mr Justice Swift says that -
'In substance this application to amend is a request to start a challenge directed to a different decision. For this reason, I approach the application for permission to amend in the same way as I would approach an application for permission to apply for judicial review: if the proposed new claim is arguable, I will grant permission to amend; if it is not I will refuse permission. The parties agree this is the correct approach.' (paragraph 5)
Mr Justice Swift goes on to refuse the claimant's application for permission to amend, finding that -
'The proposed amended claim comes to this: that persons who meet the criteria at section 70(1) of the 1992 Act should receive an additional payment above and beyond the carer's allowance paid to them. The purpose of that payment is to reflect the cost to them of providing care to those in respect of whom the carer's allowance is payable. What is fatal to the Claimant's proposed new claim is that the amount to be paid to persons that meet the criteria at section 70(1) of the 1992 Act for the purpose of providing care is expressly set in Schedule 4 to the 1992 Act. The only power that the Secretary of State has to change the amount payable is the uprating power at section 150 of the Social Security Administration Act 1992. Any other increase must be a matter for Parliament.' (paragraph 10)
Mr Justice Swift rejects the argument made on behalf of the claimant that, when the 1992 Act was made, the circumstances caused by the COVID-19 pandemic could not have been anticipated, and that it was arguable that the Secretary of State retains a common law power to act in these exceptional circumstances, commenting that -
'The notion that, notwithstanding provisions such as those in the 1992 Act which are in issue in this case, the Secretary of State retains common law powers which could be used in 'exceptional circumstances' to top-up a statutory scheme for payment is entirely unruly. Not the least because the notion of what circumstances might count as 'exceptional' could not be known with any acceptable degree of certainty. I can see no principled basis either for an argument that the statutory provisions (such as those in issue in this case contained in the 1992 Act) should be construed more narrowly in 'exceptional' as opposed to 'normal' times, or for an argument that any statutory scheme should be approached on the basis that it permits the executive some form of reserved common law power to act if 'exceptional' circumstances arise.' (paragraph 12)
In addition, Mr Justice Swift rejects the argument that the power to make provision for additional payments to carers lay in section 76 of the Coronavirus Act 2020 which provides that HMRC 'are to have such functions as the Treasury may direct in relation to coronavirus or coronavirus disease.' Instead Mr Justice Swift finds that -
'The Treasury could not, in reliance on section 76 of the Coronavirus Act direct HMRC to make additional payments to those who meet the criteria at section 70(1) of the 1992 Act in respect of their caring responsibilities; what such payments should be is addressed exclusively by the provisions of the 1992 Act and section 150 of the Social Security Administration Act 1992. It is not possible to read section 76 of the Coronavirus Act as conferring some form of new and unlimited power on the Treasury that exists regardless of all other primary legislation. In my view section 76 says nothing that is new about the Treasury's powers, save in respect only of its power to give direction to HMRC. (paragraph 13)
As a result, Mr Justice Swift says that the proposed amended claim is not properly arguable -
'The claimant's contention is that the failure to provide for additional payments for those entitled to carer's allowance is either in breach of her Convention Rights or irrational at common law. Since it is not arguable that the Secretary of State has the power to make such payments, it must follow both that the human rights claim must fail by reason of section 6(2)(a) of the Human Rights Act 1998, and that failure to make such payments cannot be unlawful at common law.'
Turning then to the specifics of the claimant's discrimination claim and rationality challenge, Mr Justice Swift highlights that the discrimination claim was brought as a claim of sex discrimination and a claim of discrimination on grounds of other status, with the other status being that of (a) meeting the requirements in section 70(1)(a) of the 1992 Act for entitlement to carer's allowance; but (b) not being in receipt of universal credit.
However, Mr Justice Swift finds that the claimant was not in an analogous position to the identified comparators - which were a person in receipt of universal credit including the carers element who also meets the criteria for entitlement to carer's allowance; a worker who has been put on furlough by her employer because during lockdown she had additional child care responsibilities; and a self-employed person who receives assistance under the SEISS - and that -
'Claims of discrimination, whether direct or indirect discrimination, are only viable if the Claimant and the comparators she identifies are in analogous positions. Where that requirement is not met there is no workable benchmark by which to assess either whether there has been relevant less favourable treatment (direct discrimination) or whether the application of a single standard to the Claimant and her comparators has disadvantaged the Claimant (a claim of indirect discrimination).' (paragraph 20)
Mr Justice Swift also rejects the argument that the absence of a decision to make additional payments to those such as the claimant (who receive carer's allowance but not universal credit), while at the same time increasing the standard allowance part of universal credit, introducing the JRS, and introducing the SEISS, was on account of sex, stating that, as set out in a witness statement from the DWP's Carer's Policy Lead Mark Knight -
'... what is very clear is that as at March 2020 the Government faced unprecedented circumstances in which, because of restrictions that would be imposed to address the spread of COVID-19, many people were likely to suffer a significant drop in income. Some might need to have resort to universal credit for the first time. Many other groups in society would also suffer hardship in consequence of restrictions that had been imposed. I entirely accept the Claimant's evidence that the restrictions caused her expenditure to increase. However, as Mr Knight explains the resources available to the Government were finite and an order of priorities was required. The Government's choice was to direct support to certain groups likely to suffer a loss of income. This included those who by reason of a reduction in their earnings might be first-time claimants for universal credit. The same objective also explains the thinking behind the JRS and the SEISS. In light of that explanation it is not arguable that these decisions resulted in unlawful discrimination against the Claimant either on grounds of her sex or because she was a person in receipt of carer's allowance. (paragraph 22)
Mr Justice Swift adds that the claimant's rationality challenge was unarguable for the same reasons, and that -
'An application for judicial review is not an appeal against the merits of a decision but a test of its legality. The choices made by the Secretary of State that are under scrutiny in this case were well within the scope of judgment lawfully available to her.' (paragraph 23)
Finally, in relation to the disposal of the case, Mr Justice Swift says -
For these reasons I refuse the Claimant's application to amend the Claim Form and Grounds. The practical consequence is that the Claimant's claim for judicial review is now at an end.' (paragraph 24)