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Q&A on carers and the benefit cap

What is the benefit cap?

The benefit cap limits the total amount of benefit that can be paid to a non-working household. The benefit cap levels are set at:

  • approx. £385 a week (£20,000 a year) for couples with or without children, and lone parents with children, who don't live in Greater London
  • approx. £442 a week (£23,000 a year) for couples with or without children, and lone parents with children, who do live in Greater London
  • approx. £258 a week (£13,400 a year) for single people without children, who don't live in Greater London
  • approx. £296 a week (£15,410 a year) for single people without children, who do live in Greater London

Note: Before 7th November 2016 the benefit cap levels were higher - see 'How much is the benefit cap?' for further information.

The benefit cap will apply to household's who get Housing Benefit who are below state pension credit age and household's who get Universal Credit.

The way that a ‘household’ is defined in the benefits system doesn’t just mean the people who live in the same home. For the purposes of the benefits system, a ‘household’ is considered to be an adult, their partner (if they have one) and any dependent children. If any other adult relatives, like older parents, brothers and sisters or even adult children live in the same house they are considered to be part of a different benefits ‘household’ even though they live together.

Some households are exempt from the benefit cap.

Has anything changed recently for carers and the benefit cap?

Yes, firstly on 26 November 2015 a court case decided that the benefit cap should not apply to some groups of carers (see below). Secondly, on 25 January 2016 the Government announced that it would exempt all carers 'receiving carer's allowance' from the benefit cap. They made the announcement partly in response to the court case, and partly because they are passing a new law about the benefit cap. 

Which carers will be exempt from the benefit cap? 

The Government said in Parliament that they "will be exempting all recipients of Carer’s Allowance from the benefit cap, whether they are single or part of a couple.”  

They have since clarified that you will also be exempt if you have an ‘underlying entitlement’ to Carers Allowance and if you receive a Carer Element within Universal Credit.

When will the law be changed to exempt carers?

The exemption was introduced on 7th November 2016, at the same time as the benefit cap levels were lowered.

What should I do if I am a carer who is affected, or has been affected, by the benefit cap?

Until the law changed (7th November 2016), carers were still subject to the benefit cap. You should ask for a Discretionary Housing Payment to make up the benefit lost due to the cap, including any amount you have lost in the past.

The Discretionary Housing Payment Local Authority Good Practice Guide was amended to make it clear that those entitled to Carer's Allowance should be considered a priority for a Discretionary Housing Payments, until they become exempt (on 7th November 2016).

What is the benefit cap case?

A challenge was brought by two families who argued the benefit cap is unfair and unlawful for carers and those they support.

The case is called Hurley & Ors v Secretary of State for Work and Pensions [2015] EWHC 3382 (Admin) and you can download a copy of the decision here. The case was what is called a Judicial Review and was heard in the High Court.  

What was the benefit cap case about?

The two carers involved in the case were or had been subject to the benefit cap, so they received less benefit than they otherwise would because of the benefit cap. They both cared for their grandmother and so were not exempt from the benefit cap.

I thought carers were already exempt from the benefit cap?

No, there was no specific exemption for carers. Many carers have been exempt from the benefit cap because they live in the same “benefit household” as the disabled person they are caring for, and the cared for is in receipt of  a disability benefit that exempted the family from the cap. So a parent caring for a dependent child or someone caring for and living with a spouse or partner, who are receiving a disability benefit, is exempt. People caring for parents, grandparents, adult children, siblings or friends were subject to the cap (although if the carer gets one of the relevant benefits this will no longer be the case from 7th November 2016). In the benefit cap case, both carers were caring for a grandparent and so were not exempt.  

What was the decision in the case?

The judge in the case, Justice Collins, decided that the benefit cap unlawfully discriminated against disabled people and so their carers as well. In his judgement he made the point that carers who were single, in receipt of Carer’s Allowance and looking after a member of their family could not be expected to take any of the steps the Government had suggested to avoid the benefit cap.

So the benefit cap was found to be unlawful because it was unfair to carers?

Not quiteAs the judge himself made clear, the fact that something is unfair does not mean it is unlawful. The unfairness of the benefit cap to these carers was decisive only because it related to discrimination under the European Convention on Human Rights (ECHR). Article 1 Protocol 1 of the ECHR provides that a person’s possessions shall be protected, and it has been long established that a person’s benefits can be treated as a possession. But it also has to be found that discrimination has taken place, i.e. that the carer or the person they are looking after has been treated less favourably than someone else, or been treated the same as someone else whose situation was quite different. 

What was the discrimination in this case?

The judge decided that it was the cared for person who was discriminated against. As they were disabled, they had what is called a “status” under the ECHR and so have protection against discrimination. The judge said the effect of the benefit cap would be that the carers in the case would have to give up caring, the state would have to step in, and this would have an adverse effect on the disabled person. Crucially he then went on to decide that the discrimination could not be justified – i.e. that the reasons the Government gave for imposing the benefit cap on such carers were not sufficient to outweigh the negative impact. 

Because of this he did not have to go on to decide whether the carer themselves had been discriminated against. He did though comment that he thought the carers in the case did have a status under the ECHR, i.e. that they could argue they were discriminated against.  However as this did not form part of the reasoning for his decision, this is not binding on other courts or tribunals.   

So are carers' benefits now protected under the ECHR?

Only in relation to the discrimination found in the case. It’s important to remember that the ECHR does not give carers, or anyone else, a right to benefit, or a right to have a benefit paid at a certain rate.

Many cases both in the UK courts and the European Court of Human Rights itself have made that clear. Even though benefits can be possessions under the ECHR, the protection relates to discrimination and unlawful interference. So if a Government passes a law to remove entitlement to a benefit, or restrict entitlement, then as long as it follows the correct process and does not unlawfully discriminate, it can do so.  

I am in the same situation as the carers in the benefit cap case, what do I do?

What you should do will depend on your circumstances. If you are unsure what to do you should contact the Carers UK Adviceline.

  • If you had your Housing Benefit reduced due to the benefit cap and you have a decision you can still appeal against, you should appeal straight away. You have one month to appeal a decision, so if this applies to you make your appeal as soon as possible. If the decision to apply the benefit cap to you was made more than a month ago, but less than 13 months ago, you can still make what is called a ‘late appeal’. You will have to explain why your appeal is late, and that it is in the “interests of justice” for your appeal to be accepted. You need to put your appeal in writing and send it to your local council.
  • If you are out of time to appeal you should ask for an “any time revision”. Again do this as soon as you can. You should do this in writing and send it to your local council.   
  • If you ended your Housing Benefit claim because the benefit cap was applied to you, or did not apply because of it, you should make a new claim for Housing Benefit straight away. 
  • The benefit cap is applied to Housing Benefit so it is your local council that you need to contact, not the DWP.

Whatever  your circumstances , you should state clearly that you believe that the decision in this case means that the benefit cap cannot be applied to you, and that to have done so was wrong.  Also remind them that the Government has decided to exempt all carers in receipt of Carer's Allowance, the underlying entitlement to Carer's Allowance or a Carer Element within Universal Credit from the benefit cap. You also need to ask for a Discretionary Housing Payment to make up the Housing Benefit lost due to the cap.

Note: The benefit cap can also apply to people claiming Universal Credit. Most carers won't yet be claiming Universal Credit, however if you are a carer who is claiming Universal Credit, and are affected by the benefit cap, then contact the Carers UK Adviceline for advice on what steps to take.

The judge made some comments about caring being similar to work, what did he mean?

Justice Collins was less than impressed with the DWP’s suggestion that the carers in the case would be considered “workless”. As he said“ ... to describe a household where care was being provided for at least 35 hours a week as ‘workless’ was somewhat offensive. I believe reasonable people would recognise that to care for a seriously disabled person is difficult and burdensome and could properly be regarded as work.” The relevance of this is that part of the justification for the benefit cap was to change the behaviour of workless household and make them take up work. As the judge pointed out the carers in receipt of Carer’s Allowance are already doing what most people would consider work, so this justification had little weight when applied to them.  

Did the court accept the evidence from Carers UK about how much carers save the state?

It did. The judge noted that the DWP did not challenge the evidence put forward by Carers UK that carers save the state £119 billion each year (NB. since we submitted evidence in this case, we’ve updated the figure based on the same model and the new figure is £132 billion each year). Further he also said that the evidence presented about the financial hardship many carers had not been challenged by the Government either, and it not could be. The relevance of the amount of money carers save the state is that the logic of the Government’s argument was that the carers in the case should give up caring to take up full-time work, but this would leave the cared for relying of state provided care which would cost a lot more.  

Does the judgment mean that people should be able to be cared for by a family member if they wish to be, and not forced to accept state provided care? 

The judge did attach great significance to the fact that the imposition of the benefit cap would mean that many carers affected by it would give up caring, and the disabled person would no longer receive care from a “trusted carer.” This is clearly important and welcome in this case. Obviously similar arguments could be tried in other contexts if the discrimination angle were present.  It would be more difficult though, for example, to argue that Carer’s Allowance should be increased significantly to enable a family member to provide care. This would in effect be obligating the Government to not only create a benefit for a certain class of people, but pay it at a certain rate, something that so far has not been achieved by anyone in the courts. 

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