Case comment: Hurley & Ors v Secretary of State for Work and Pensions

The High Court in England ruled recently that including the Carers Allowance in the benefit cap is unlawful indirect discrimination against disabled people.


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.

This case was about whether the UK Government’s decision to include the Carers Allowance in the calculations for deciding the amount of benefits a person can receive is discriminatory against 1) the carers and 2) the disabled people needing this care.                

Some people who receive benefits are exempt from the cap, in particular people living in households with someone who receives Disability Living Allowance (DLA) or Personal Independence Payments (PIP). The full-time carer of a disabled person may receive the Carers Allowance. If the carer lives in the same household as the person they are caring for and that person is eligible for DLA / PIP, then the Carers Allowance is not included in the calculation of the cap.

However, many disabled people are cared for, full-time, by family members who don’t live with them. In these circumstances, the carer is entitled to the Carers Allowance and it is included in the calculation of the cap. Two of the claimants in this case fell into this category and as a result their Housing Benefit was reduced. They all live in London and face the prospect of having to move to somewhere where the rental costs are lower, but this means they will no longer be able to provide full-time care. Therefore, the effect of the decision not to exempt the Carers Allowance, as a whole, has an impact on carers and on the disabled people being cared for. Reflecting this, there was a third claimant in this case, who was the grandmother of one of the other claimants, who faced the prospect of losing her carer and, as a result, having to move into residential care.

Commission's intervention

The Commission intervened in the case, using our legal powers. 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).

Under Article 14 the enjoyment of all ECHR rights must be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with national minority, property or any other status.

Disabled people receiving care

It was held that the disabled claimant’s Article 8 rights were engaged and that the desire for care to be administered by a family member will almost always be likely to fall within Article 8.

The judge, Mr Justice Collins, was also satisfied that the disabled people affected by the decision not to exempt the Carer’s Allowance faced discriminatory treatment within the scope of Article 14. This was because they are at present cared for by a family member, who is regarded as essential and in whom trust is placed, and the effect of the inclusion of the Carers Allowance in the benefit cap is that they are unable to have that care continue. There are other disabled people, who are different and who are not in that position. He relied on the approach of the Supreme Court in Mathieson v SSWP [2015], where it was accepted that Article 14 is engaged where there is discrimination between different disabled people who have different needs.

The discriminatory treatment was found to be unlawful because, when the Government was introducing the cap, it had failed to consider the impact on disabled people who depend on this care.


It was accepted by all the parties 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.

Mr Justice Collins decided that because he was satisfied that the discrimination against the affected disabled people was unlawful, he did not need to decide whether the carers themselves should be regarded as the subject of discrimination. He did, however, state his view that the carers do have status under Article 14 because of the approach taken in Mathieson.

Link to judgment

Last updated: 07 Apr 2016