ReValuing Care Through Law: Challenging the Bedroom Tax and Benefit Cap on Care

Professor Rosie Harding
Birmingham Law School | email: r.j.harding@bham.ac.uk

It has been an interesting week for news about care giving and receiving in English Law. Two stories have made the news that reflect challenges to the value placed on care in our society: first, the Government’s announcement that recipients of Carers Allowance are to be exempted from the benefit cap; second, news about the Court of Appeal’s decision that the ‘bedroom tax’ (or, as the Government would prefer it to be called, the ‘Removal of Spare Room Subsidy’) is unlawfully discriminatory on grounds of disability and sex.

The news that carers in receipt of Carers Allowance are to be exempt from the Benefit Cap came during debate on an amendment to the Welfare Reform and Work Bill on 25 January 2016. Lest anyone be deceived into thinking that the current Conservative Government is suddenly going soft on benefit recipients, it is important to remember that the impetus for this change came from a judicial review decision of the High Court in October 2015. In Hurley & Others v Secretary of State for Work and Pensions [2015] EWHC 3382 (Admin), Mr Justice Collins held that the benefit cap regulations, whilst not unlawful in their entirety (considering the very high standard of unreasonableness that is required at judicial review) were nonetheless indirectly discriminatory on the basis of disability in a way that was not objectively justifiable. A government amendment is expected during the forthcoming House of Lords Third Reading debate that fully exempts those in receipt of Carers Allowance from the benefit cap. The change will bring those in receipt of carers allowance into line with others exempted from the cap.

The Court of Appeal decision in R (On the Application Of Rutherford & Ors) v Secretary of State for Work & Pensions [2016] EWCA Civ 29 has not met with the same level of agreement from the Government. In that case, the Court of Appeal found that the ‘bedroom tax’ regulations were unjustifiably discriminatory on the grounds of disability (in the case of the grandparents of a severely disabled teenager), and on the grounds of sex (in the case of a woman at serious risk of violence from an abusive ex-partner). In both of these cases, the claimants had been in receipt of Discretionary Housing Payments (DHPs) to mitigate the effects of their deduction under the bedroom tax rules. Importantly, others in similar positions may not be in receipt of DHPs, as the nature of the scheme, and the discretionary basis of it, means that provision varies across local authorities.

Since this decision, the Government has announced its intention to appeal to the Supreme Court, and a hearing on this case is to be joined with the appeal in R (MA and others) v the Secretary of State for Work & Pensions [2014] EWCA Civ 13, another case concerning the discriminatory nature of the ‘bedroom tax’ which is due to be heard by the Supreme Court in early March 2016. In the meantime, the Government have issued a bulletin to staff responsible for Housing benefit advising that “no action needs to be taken by local authorities following this judgment.” [1]

Leaving aside the legal issues that will be considered by the Supreme Court in a few weeks’ time, the news this week about regulating care and caring raises more general issues of interest. It reminds us of the necessity of a strong system of judicial review, with access to legal aid to support vulnerable claimants. While some of the more negative aspects of changes to the legal aid system for judicial review were undone following a challenge by solicitors, the policy of ‘no permission, no fee’ remains in place. The former Justice Minister, Chris Grayling was open about his desire to curb judicial review, which he berated “left-wing campaigners” for using as a “promotional tool” and to “to try to disrupt Government policies.” [2]

Given the rise in the use (and attempted use) of statutory instruments (which can be passed without democratic debate) rather than Acts of Parliament (which require full Parliamentary debate and the approval of both Houses) for controversial issues like tax credit cuts, or fox hunting, since the Conservatives came to power in 2010,[3] any attempts to restrict judicial review need to be taken very seriously indeed.

These cases also remind us of the importance of the Human Rights Act 1998 in defending the most vulnerable in our society. Both of these cases concerned challenges to the legislation on the basis of discrimination outlawed by Article 14 of the European Convention on Human Rights. In both cases it was the fundamental human right not to be discriminated against on the basis of a protected characteristic that was the reason for the decision (in these cases it was disability and sex) .

This Government wants to repeal our Human Rights Act. We still await the detail on proposals on a Bill of Rights which we have been told might be fast tracked into law by this summer [4]. These cases where Convention Rights safeguard the rights of vulnerable people with disabilities, their carers, and other whom the State has an obligation to protect from violence and harm remind us of the value of our Human Rights Act, and the high cost that repeal of it could place on vulnerable people.

I look forward to seeing the exemption from the benefit cap for carers come into law without delay. I also await the Supreme Court’s decision in the forthcoming appeal on the bedroom tax cases with interest. We must not, however, be complacent. The law’s ability to ensure that an appropriate value is placed on caring is dependent both on fair access to judicial review, and on the effective domestic protection of our Human Rights. We must safeguard both.

[1] From HB-U1-2006, downloaded from http://www.disabilityrightsuk.org/news/2016/january/bedroom-tax-no-change-dwp-appeals-court-case-and-issues-guidance.
[2] http://www.dailymail.co.uk/news/article-2413135/CHRIS-GRAYLING-Judicial-review-promotional-tool-Left-wing-campaigners.html
[3] http://www.independent.co.uk/news/uk/politics/government-accused-of-waging-war-on-parliament-by-forcing-through-key-legal-changes-without-debate-a6820176.html
[4] http://www.independent.co.uk/news/uk/politics/british-bill-of-rights-to-be-fast-tracked-into-law-by-next-summer-a6698261.html

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About Rosie Harding

Prof Rosie Harding is Professor of Law and Society at the University of Birmingham. Rosie studied for an LLB at the University of Edinburgh, an LLM at Keele University and a PhD at the University of Kent. She was PI on the AHRC-funded phase of the ReValuing Care Network. Her research explores the place of law in everyday life with a particular focus on the recognition and regulation of caring and intimate relationships. Her broader research interests are in family law, healthcare law, disability law and gender, sexuality and law. She is the author of Duties to Care: Dementia, Relationality and Law (2017, Cambridge University Press) and Regulating Sexuality (2011, Routledge winner of the 2011 Hart-SLSA Book Prize and Early Career Prizes), and editor of ReValuing Care in Theory, Law and Policy: Cycles and Connections (2017, Routledge, with Ruth Fletcher & Chris Beasley), Law and Sexuality (2016, Routledge Critical Concepts in Law), and Ageing and Sexualities: Interdisciplinary Perspectives (2016, Ashgate; 2016, Routledge, with Elizabeth Peel). Rosie is a 2016/17 British Academy Mid-Career Fellow, working on ‘Everyday Decisions: Interrogating the interface between mental capacity and legal capacity’.  She founded and co-ordinated CentreLGS PECANS (http://www.clgs-pecans.org.uk/), from 2004-2011. PECANS is an international and interdisciplinary network of early career scholars working in the law, gender and sexuality field. PECANS was funded by the AHRC CentreLGS from 2004-2009, and the ESRC from 2009-2011.

Telephone :-+44 (0) 121 414 4960

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