Protecting disabled people from indirect discrimination in the benefits system

Should people who claim Carer’s Allowance have that Allowance exempted from the benefit cap?

The benefit cap is a limit on the total amount of benefits a person of working age can receive. The effect of the cap is that if the amount of benefits a person receives is greater than the cap, their Housing Benefit or Universal Credit payment is reduced by the amount over the cap.

Many disabled people are cared for, full-time, by family members who don’t live with them. In these circumstance, the carer is entitled to the Carers Allowance and it is included in the calculation of the cap.

We were challenging possible indirect discrimination against disabled people, as is our role in upholding equality and human rights protections.

We intervened in the case using our powers under section 30 Equality Act 2006. The focus of our intervention was on the rights of disabled people who need this care, as set out in Article 8 (private and family life) and Article 14 (non-discrimination) of the European Convention on Human Rights (ECHR) and the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

The Court found that the Article 8 rights of the claimant who was disabled were engaged. The desire for care to be administered by a family member will almost always be likely to fall within Article 8. The discriminatory treatment which was to exempt the Carer’s Allowance was found to be unlawful. This was because, when the Government was introducing the cap, it had failed to consider the impact on disabled people who depend on this care.

All parties accepted that reducing carers’ benefits engaged their rights under Article 1, Protocol 1 (A1P1) of the ECHR (right to peaceful enjoyment of possessions) because the right to receive a state benefit is a possession within the meaning of A1P1. 
 

This will benefit those who care full time for a disabled family member they do not live with, if they claim Carer’s Allowance.