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The Appeal of WelfareThe limits of law in the face of the welfare

reform agenda

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SHIFTING THE PLACE OF SOCIAL SECURITY:WELFARE REFORM AND SOCIAL RIGHTS UNDER

THE COALITION GOVERNMENT’S AUSTERITY PROGRAMME

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What am I going to talk about?

1. Challenging Welfare Reforms: Some Problems

2. Problems of Procedure: The reliance on procedural challenges

3. Drawing conduits: Facilitating Legal Challenges

4. The Panacean Payments: The Juridiciation of DHPs

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Challenging Welfare Reforms:

Some Problems

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1. The Problem of Compound Impact (1)

- Clear constituency for most of the key reforms (those who qualify for housing benefit)

Benefit Cap

‘Bedroom Tax’

CTRS

DLA to PIP

Scrapping ILF

Limited statutory

exemptions

Dependence on discretionary exemptions designed for tackling one

reform

Other ‘working

age’ reforms

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1. The Problem of Compound Impact (2)

- ‘Double whammy’ of the abolition of Educational Maintenance Allowance alongside the imposition of the SSSC

- For a family with one child receiving the full amount (£30 per week for

term time), the abolition amounted to an annual loss to the household of

£1,260

- Lupton (2014) has identified that teachers at schools in areas with particularly low socio-economic indicators, are utilising Pupil Premium funds to provide support to families affected by welfare reform measures , which has included buying food – and in fewer instances – providing clothing

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2. Huge Geographical Variation

- Welfare reform inevitably has a heavy geographical element, both in terms of broader areas (e.g. North and South) and

between specific Local Authorities (Hamnett, 2014)

- 1. The pertinence of a reform in one area will be different to another (e.g. Benefit Cap) + this is often hard to predict

- 2. Existing issues in specific areas can affect the efficacy of exemption mechanisms (e.g. severe housing

shortages/expensive temporary accommodation)- 3. Council level issues (both financial + political) impact on the

formation of policy – such as with the new Council Tax Reduction Scheme

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Average level of SSSC reduction per

household by local authority area

Number of households affected by the SSSC under-occupying by two or more bedrooms by local

authority area

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3. Balancing Austerity/Localism against social rights

Austerity Social Right

In the ‘Age of Balancing’ (Contiades et al, 2012)

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Standard of Review – Subsidiarity Concerns

- ‘General measures of economic or social strategy’ requiring a lower standard of review. (Cousins, 2013)

- Importance of sitting within the ‘sphere of social policy’ (Sales and Hooper, 2003), leading to strong ‘deferential tenor’ for housing issues (Walsh, 2011)

- Localism alongside Austerity – Problematic?

Problems of Procedure:

The reliance on procedural challenges

Stuart Bracking and others v Secretary of State for Work and Pensions [2013] EWCA Civ 1345

- Appeal of the closure of the Independent Living Fund

- Two key grounds of appeal:1. The SSWP had failed to effectively discharge

the public sector equality duty under s.149 Equality Act 2010 (PSED) – described as the claimants’ main ‘thrust of the attack’ ([35] per McCombe LJ)

2. The consultation which preceded the decision was inadequate

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The PSED Challenge (The key bits for present purposes)

1)A public authority must, in the exercise of its functions, have due regard to the need to—

(a)eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

1. A Minister must assess adverse impact before the adoption of a proposed policy

2. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in offering their advice

3. It is not for the Court to themselves assess whether appropriate weight has been given to the duty, but rather just to see that the Secretary of State has given it sufficient consideration and appreciation of the measure’s impact with regards to the PSED

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- The ‘true message’ of the consultation had not been given, and hence the potential impact was not adequately assessed ([42] per McCombe LJ)

- It was made clear by McCombe LJ that the PSED is a ‘heavy burden upon public authorities,’ ([59] per McCombe LJ)

- That issues of equality should be ‘placed at the centre of formulation of policy’ if and when they arise, ([59] per McCombe LJ)

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R (on the application of Aspinall, Pepper and others ) v Secretary of State for Work and Pensions [2014] EWHC 4134 (Admin)‘the Minister was no better informed about those matters

this time round than his predecessor was.’ ([47] per Andrews J)

1. ‘It was certainly not a ‘tick-box exercise’ conducted in a legal or factual vacuum’ ([48] per Andrews J)

2. ‘Short of going down the pilot scheme route…there was nothing that he could have done that would have left him any better informed than the results of the consultation did’ ([124] per Andrews J)

3. ‘[the minister] did not need to know precisely how many of them were likely to be affected or to carry out a quantitative assessment of the impact. It sufficed that he knew, as he did, that the impact would be substantial and significant.’ ([130] per Andrews J)

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The PSED Challenge – Key implications

1. The PSED is clearly creates a sizable evidential burden – if not a substantive policy burden – a test of administrative competence rather than a litmus test of consideration of impact?

2. The Courts generally are very reluctant to intervene, indeed, LJ McCombe stated he make his judgment ‘with some releuctance’ ([61] per McCombe LJ)

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Drawing conduits: Facilitating Legal

Challenges

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Drawing Conduits: Facilitating Legal Challenges

‘legal relations and obligations…are frequently thought of by Courts…as existing in a purely conceptual space, with

little recognition of the spatiality and diversity of legal circumstance’ (Blomley, 2000:53)

‘Tyranny of the Category…presented as a neutral tool for managing people and systems’ (Vellani, 2013)

Problems extrapolating impact from the limited public law tools available

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Example One: Local Housing Allowance Reforms Challenge

R (Zacchaeus 2000 Trust) v Secretary of State for Work and Pensions [2013] EWCA Civ 1202

1. The EIA made no attempt to quantify the impact of restricting any increase in LHA to the CPI uprating (namely, how many households with protected characteristics would be affected and in what way).

2. The analysis in the EIA was so limited as to be ‘irrelevant or uninformative’ in carrying out the discharge of the duty, and one protected group left out were school-age children (age)

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Households may be forced to move

This will be particularly true for families requiring more bedrooms who are hit harder

Families with more bedrooms have more children

Moving from the home may mean children will have to move school

The measure will impact adversely on children’s ‘social development and education prospects’ ([70] per

Sullivan LJ)Age is a protected characteristic under s.149 EA 2010

Facilitating a PSED Challenge

This adverse impact on a protected group was not considered in the formation of the policy

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1. The Court had been presented no evidence to support the argument that there was a connection between LHA reform and an adverse impact on children (due to moving school or by other means)

2. No interested group had raised the issue in the consultation exercise. Consequently concluded that it was ‘something of a lawyer’s point’ ([74] per Sullivan LJ)

The Judgment: R (Zacchaeus 2000 Trust) v Secretary of State for Work and Pensions [2013]

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- Fenton (2010) – simulation ‘demonstrates that this means increased poverty rates among…children' and that this

would result in ’costs…such as school disruption, distress and the loss of a settled abode that cannot have a price

attached to them‘

- Ridge (2013) - ‘for many children, [welfare reforms including changes to LHA] will increase their risk of

experiencing deeper poverty and financial insecurity and anxiety. For some there will be homelessness, disruption and dislocation, as their parents are forced to move away

from family, friends, schools and neighbourhoods’

- Clapham (2016) - ‘the reduction in the LHA, to cover only the lowest third of rents, may result in some of these young

people being unable to find accommodation suitable for children… However, the main worry with private renting was security and the inability to create a stable ‘family

home’

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Example Two: Benefit Cap Supreme Court Judgment

1. Challenge to the ‘Benefit Cap’ on the basis that, inter alia, it was unlawfully discriminatory against women pursuant to Art.1 Pt.1 (right to property) with Article 14 (prohibition of discrimination)

2. The majority of the Court ruled (3-2) that the ‘benefit cap’ is not unlawful, as its discriminatory impact is justified

3. However, the majority also ruled (3-2) that the Government had not fulfilled its obligations under the United Nations Convention on the Rights of the Child

4. The disagreement between the Justices was the drawing of a conduit between the Article 14 claim (on gender discrimination) and the use of the UNCRC to interpret justification of the discrimination (children)

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Facilitating the Challenge

Benefit Cap disproportionately affects lone parent families

Most lone parents are women

The Benefit Cap is discriminatory against women (Art.1Pt.1 with Art.14)

Justification of this discrimination must be interpreted with reference to UNCRC

This provides that ‘in all actions concerning children … the best interests of the child shall be a primary

consideration’ Art.3(1)

The best interests of the child were not a primary consideration

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‘there is no factual or legal relationship between the fact that the cap affects more women than men, on the one hand, and the

(assumed) failure of the legislation to give primacy to the best interests of children, on the other’ ([89] per Lord Reed)

‘The more difficult question…is how [the UNCRC] affects …alleged justification for the admittedly discriminatory effects on women as lone parents…Even if article 3(1) had a role to play in

illuminating article 14, this could only be where the alleged indirect discrimination…was in respect of children. In the

present case, by contrast, the allegation is of discrimination, not against children, but against their mothers. The children, it is said, will be treated the same

whether their lone parents are male or female. With considerable reluctance, on this issue agreeing with Lord Reed, I feel driven to

the conclusion that he is right.’ ([129] per Lord Carnwath)

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The Panacean Payments

- Welfare Reform Act 2012 agenda is inherently ‘responsibilising’ (Lowe and Meers, 2015)

- Require a ‘moralizing mechanism’ (Flint, 2014) to identify where the ‘sharp division between deserving and undeserving groups’ lies (Taylor-Gooby, 2013)

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Bedroom Tax

Benefit Cap

LHA Changes

(By proxy for other reforms)

Limited statutory

exemptions

Dependence on discretionary exemptions

administered at the Local

Authority Level to undertake this

work

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Carving out a New Role for DHPs

- CPAG v Secretary of State for Work and Pensions [2011] EWHC 2616 (Admin)- Changes to LHA largest category and caps

- R (Zacchaeus 2000 Trust) v Secretary of State for Work and Pensions [2013] EWCA Civ 1202- ‘[DHPs] showed that the Secretary of State had been

aware of the particular difficulties which might be faced by disabled people if they had to move home [and] in my judgment, he was right.’ Sullivan J [68]

- R. (on the application of Knowles) v Secretary of State for Work and Pensions [2014] EWCA Civ 156- Application under LHA for Gypsy Traveller sites

- R. (on the application of SG) v Secretary of State for Work and Pensions [2014] EWCA Civ 156- Application to the benefit cap cases

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Avoiding Juridification: The Government Approach

- ‘DHP strategy’ about avoiding ‘standing back and imposing something’ (Hopkins, 2014)

- ‘Would it not be easier simply to exempt [disabled tenants]?’ ‘This is a question at the heart of the DHP policy. You are looking at it being very hard to define the precise groups you really want to exempt, and the DHP strategy of looking at the individual circumstances of the household is more flexible and produces the support.’ (Freud, 2014)

- Avoiding the ‘juridification of welfare’ (Fitzpatrick, Benntsson and Watts, 2014)

- Processes and implications of juridification processes are both ‘complex and contradictory’ (Aasen, Gloppen, Magnussen and Nilssen, 2014)

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‘Central to [the Secretary of State’s] thinking is the idea that there are certain groups of persons whose needs for

assistance with payment of their rent are better dealt with by DHPs than [housing benefit]…I consider that they

amount to an objective and reasonable justification of the scheme’ ([82] per LJ Dyson)

DHPs provide the ‘greater flexibility’ required to deal with the changing nature of ‘disability-related needs’

([74] per LJ Dyson)

R (MA & others) v The Secretary of State for Work and Pensions [2014] EWCA Civ 13

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- The care requirements of Warren were described by Stuart-Smith J as "intensively burdensome" (para.11)

- Their home had been "significantly adapted" to meet his needs (para.13)

- Warren’s grandparents are not in good health themselves, and help is provided by a professional carer who sometimes stays the night at the property in the ‘spare room’ which finds itself subject to the 14% penalty

Rutherford v Secretary of State for Work and Pensions [2014] EWHC 1631 (Admin)

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- Stuart-Smith J held that ‘while a scheme including the use of DHPs as the conduit for payment may be justifiable, it will not be justified if it fails to provide suitable assurance of present and future payment in appropriate circumstances’ (para.48)

The Judgment…

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Last Week: R. (on the application of Hardy) v Sandwell MBC [2015] EWHC 890 (Admin)

- Claimants successfully appealed DLA being taken into account when assessing DHP claims

- Significantly, DHPs were held to fall under the scope of art.1pt.1 (generally reserved for housing benefit, or other forms of prescribed benefits)

- Allows an art.1pt.1 + art.14 claim to be run (i.e. that the payment of DHPs is discriminatory)

- ‘DHPs form an integral part of HB entitlements for disabled applicants and that they have at least a legitimate expectation that they will be used to supplement a shortfall in HB which would otherwise be unlawful’ ([48] per Phillip J)

- Opens the way for the application of the United Nations Convention on the Rights of Persons with Disabilities?

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Closing thoughts

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1. Compound impact not dealt with in current legal protections (particularly in terms of procedural

elements)2. Procedural appeals are often blunt tools3. Results in ‘lawyering’ where often some

discrimination has to be found to justify an appeal (instead of, for instance, talking about the loss of

home)4. Emphasis on Discretionary Exemption Mechanisms have resulted in some ironic

juridification

Some closing thoughts

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PROJECT INFORMATION AVAILABLE AT:

WWW.SOCIALRIGHTS.CO.UK