I am a Welfare Rights Worker at Mansfield CAB and I have a client who has learning difficulties and is in receipt of IS & DLA and has a 25 year old son living with her who is also in receipt of IS & DLA. On the son reaching 25 years of age, the Local Authority applied a non-dependent's deduction of £7.40 to her HB even though the son is in receipt of IS and in fact has a mental age of an 8 year old. This is quite correct in terms of the regs but the client feels this is not fair and I agree. Consequently an appeal has been submitted against this using the Human Rights Act citing that this Reg is discriminatory as the care of children and disabled children once they have grown up, disproportionately falls on women. The Appeals Service has accepted that they have jurisdiction to hear the case and I am now busy trying to find any case law to back this up as well as any statistics. Other than relying on my gut feeling of unfairness, and that of the client in this case, my only saving grace so far is a Commissioners Decision stating that the relevant age is the claimant's mental age, not chronological age, but this doesn't address the Human Rights issue. I'm using article 14 and article 1, protocol 1. I've so far tracked down 'Stec and others v the UK which has ruled that non-contributory benefits are 'possessions' for the purpose of Article 1. Protocol 1 and found a legal precedent 'Thlimmenos v Greece (2001)321 EHRR 15 which relates to 'states having to treat differently people whose situations are significantly different' .
Any further help would be gratefully rec'd, particularly with regards statistical data relating to this particular issue.

ummmm..... there seems to be an awful lot of DLA in the situation you describe for Non dependent deductions still to be made...

Reg 63(6)(b)(ii) of HB Regs 1987 prevents a non dependent deduction being made where the claimant (ie the mum) is getting some rate of the care component of DLA.

...might avoid need for human rights act challenge.

Martin

And even if she only gets DLA mob, you might want to consider a Discretionary Housing Payment (DHP). The situation sounds like exactly the sort of thing a DHP would address and might mean that the discrimination is actually avoided. I think that if you are making a HRA challenge, you need to look at the scheme as a whole as well as the detail of the regulations. It may be arguable that the existence of the discretionary scheme means that the Non-dep provisions are proportionate. (Although I would never wish to discourage a Human Rights Challenge).

Use a Discretionary Housing Payment as a permanent solution? I've only used DHP's for one off issues, never as a permanent solution. The emphasis is on 'discretionary' here; and I'm thinking in terms of my client's on-going rights. If we go down the DHP route, it almost certainly will run into the sand at some point in the future, particularly as DHP's are difficult to access in our area.....and yes, Mum is on DLA only.

sorry, thats Mum is on DLA

If only life were so simple. The client, who is a single Mum, gets DLA only. If mum was married and her husband was getting what the son is getting, then you're absolutely right, no non-dependents deduction would be made. I often get clients feeling decisions are unfair and I can only sympathise but in this case, I agree with client; its just unfair.

The contact a family website gives a stat that says that 23% of all disabled children are brought up in one parent families. Many of these will leave home when old enough, many will not.

The carers uk website says that 58% of carers are women and 42% are men. Thus women are disproportionately disadvantaged but what the numbers actually amount to, I really don't know. Hope this helps a little.

Regards
Paul

Every little helps. Thanks for this Paul.

Sorry- just to be clear- Mother is on DLA mobility with no care component?

Yes, that's right. Remarkably, no care component at all.

As the resident harbinger of doom, the following won't be too surprising...

Unless there is more to this than has already been stated, I don't think a HRA challenge will be successful. Even if a Tribunal finds in favour of the clmt, my view is that any appeal by the LA would succeed.

I'm pretty sure from memory that a HRA challenge was mounted against HBR 7(1)(c) (or (d)?) where it was argued that lone parents renting from former partners were more likely to be female and, therefore, it was discriminatory (at least I think that was the gist - no CPAG handy). The HRA argument was unsuccessful.

There's an inkling it was either:
TUCKER v SoS for Soc Sec (2001) EWHC Admin 260 QBD, or
R(H) 6/05.

Apologies if I've pickled the wrong cases - I'm sure it will be pointed out.

Regards

Kevin

R(H)6/05 it was, and, in my view, that case is distinguished for the following reasons (taken straight from the judgement itself). You may be right of course (about the chances of success) but I dont think that this case will assist.

“Human rights - discrimination against former member of a heterosexual relationship - whether facts fall within the ambit of Article 8 - whether discrimination can be justified - whether the claimant is entitled to any remedy.

Ms Langley’s relationship with a man with whom she had been living together broke down. He left the home that they had formerly shared but she remained. She agreed to pay rent to him and claimed housing benefit in respect of this. The local authority refused the claim in accordance with regulation 7(1)(c)(i) of the Housing Benefit (General) Regulations 1987 because she was paying rent to a former partner. She appealed against this decision on the grounds that it constituted discrimination incompatible with her Convention rights under the Human Rights Act 1998 because the definition of "partner" in those regulations only referred to heterosexual relationships, so that a person who had formerly been in a homosexual relationship and whose circumstances were otherwise the same as hers would have qualified for benefit.

Her appeal was refused by the tribunal and she appealed to a Commissioner. He held that the facts fell within the ambit of Schedule 1 Part 1, Articles 8 and 14, to the Human Rights Act but the difference in treatment of which Ms Langley complained was justified. It was possible to speculate that the policy-makers responsible for regulation 7(1)(c)(i) had considered that there was less risk of abuse of the housing benefit scheme by former homosexual partners than by former heterosexual partners. He therefore rejected the appeal and Ms Langley appealed to the Court of Appeal. The Secretary of State submitted a respondent’s notice contending that the Commissioner was wrong to consider that either Article 8 or 14 was engaged.

Held, dismissing the appeal, that:

1. the facts did not fall within the ambit of Article 8. (Per Sedley LJ) the housing benefit scheme as a whole is within the ambit of Article 8 as its purpose is to enable persons to retain a dwelling that they would otherwise be unable to afford and so demonstrates the state’s respect for the home. However it was necessary to consider not the scheme as a whole but the particular provision that was alleged to be discriminatory. Since the purpose of regulation 7(1)(c)(i) is to prevent abuse, it does not engage any Convention right (paragraphs 71 and 76). (Per Kennedy LJ) the housing benefit scheme is not within the ambit of Article 8 as its provision is not the state’s demonstrating its respect for the home. Although it might have the effect in particular cases of enabling the claimant to retain a dwelling, the benefit was not sufficiently closely allied to that object (Douglas v North Tyneside MBC <2003> EWCA Civ 1847 <2004> HLR 14 considered) (paragraphs 179 to 180);

2. the discriminatory effects of regulation 7(1)(c)(i) could not be justified. Even if it were the case (which was merely speculation on the part of the Commissioner) that the reason for the discrimination was that it was believed that the problem of artificial tenancies was far less prevalent as between former homosexual partners than as between former heterosexual partners, evidence that this belief was factually based needed to be presented. No such evidence had been before the Commissioner or the Court (paragraphs 68 and 69);

3. even if the refusal of benefit was incompatible with Ms Langley’s Convention rights, no relief should be given by the Court. (Per Sedley LJ) she had failed to show that she was a ‘victim’ as required by section 7(1) of the Human Rights Act. Even if the discriminatory element in regulation 7(1)(c)(i) were removed by making it applicable to former homosexual couples, her own position would not be improved. Her real complaint was against the arbitrary nature of the provision but that does not raise any Convention issue (paragraph 75). (Per Neuberger LJ), the real anomaly in regulation 7(1)(c)(i) was that it did not cover former homosexual couples. Therefore for the Court to award compensation for breach of Convention rights to former heterosexual couples would be to increase the size of those to whom anomalous payments were being made, which the Court should not do (R (Hooper) v Secretary of State for Work and Pensions <2003> EWCA Civ 813, <2003> 1 WLR 2623 at <160> to <163> applied) (paragraphs 179 to 180);

4. per Sedley LJ, if any remedy were to be given to Ms Langley, it would have to take the form of a declaration that regulation 7(1)(c)(i) was ultra vires. The alternative of "reading up" the regulation so as to construe it as covering former homosexual partners was not available as this would be to go beyond any power which even the Administrative Court possesses (paragraph 92)”.

Regards
Paul

If you haven't already considered it, I think it would be worth considering requesting a supersession of her current DLA award to try to get care comp. as well as mobility (subject to likely eligibility, potential detrimental effect to current award, etc) as a fall-back position perhaps in tandem with DHP application pending outcome of appeal/DLA supersession.

Thank you for all this material. Its really appreciated. I've got hold of R(H)6/05 which I will now take home for some bedtime reading.
Cases like this are probably, exactly the reason the LSC wants to shut down the Specialist Support Service; shame on them!

As for the client requesting a supersession of her DLA; I will go over this with the client. Not optimistic about this though given she looks after her son, cooks his meals etc, but I will go over the care criteria with her to make sure, and make sure she understands the risks involved.

Cheers

Vaughan

Going off at a slight tangent - what is the rationale behind a non-dependent deduction for someone on Income Support anyway?

If they were a tenant, then being on IS means they would get maximum HB - i.e. would not be expected to pay any rent. But as a non-dependent, they are expected, in effect, to pay rent of £7.40 a week (and Council Tax of £2.30 a week).

I can obviously see the justification for imposing deductions on non-dependents who are working, but there is no rhyme or reason for imposing them on non-deps who are on IS. They immediately lose a whacking 17.26% of their weekly income (assuming they are just on £56.20) which they wouldn't lose if they were a tenant in their own right.

Are there any grounds for arguing that this is wholly irrational, and therefore challenging the legality of the provision?

If i have this right you want to run an indirect discrimination case on the grounds of gender. I tried and failed this with CP 518/2003 where there are references to various decisions that may be of help.

What level of DLA Care does the disabled 25 year old son get?

The son gets middle rate care of DLA and low rate mobility the mum gets high rate of mobility of DLA, carers allowance and both are in receipt of Income Support. There is absolutely no prospect of the mental or physical condition of either of them improving.

Thank you for this. I will look this up or if you have a copy you could email to me as an attachment I'd be grateful. It doesn't sound as if its a reported decision.
My email addresss is: vaughan.thomas@mansfieldcab.org.uk

Cheers

Vaughan

Exactly my thoughts on this as well; the whole thing is just nuts but the Tribunal will want a legal arugument, even if they agree with me and the client; hence trying a Human Rights challenge as to the legality of this provision, in these circumstances.

I do think that it falls on Welfare Rights workers to keep chipping away at injustices our clients come up against, especially when whats legal and just doesn't always amount to the same thing. I might be naive about somethings, but I thought that's why the Government brought in the Human Rights Act. In fact I now know I am naive after a taking a case to Tribunal a few years ago where a client was reduced to living on £7.60 per week after being sanctioned along with deductions for Social Fund loans. This was ostensibly the main cause of why his wife threw him out of the house and he split up with his wife and family as a result; he took all the benefit deductions with him, leaving her with full IS. I argued that it was inhuman and degrading treatment under Article 3 of the HRA to expect a person to live on £7.60 a week amongst other things. The man was forced to beg what he could and was homeless. The Tribunal Chairman went out of her way, after reserving her decision, that this didn't meet the threshold of degrading treatment!!! We won the appeal, but only on the facts because JobcentrePlus had got some of the facts around its neck with regards applying a sanction. The Chairman asked if the client had deliberately engineered the split with his family to maximise the benefits claimed; who could blame them? Suffice to say, I didn't agree with the Chairman on this and although pleased for the client in winning his appeal, I would have been all too ready to take it to Commissioners if he had lost.

a summary of CP/518/2003 is available in rightsnet briefcase

...... full decison on the cmmrs site

I always thought it was a way to recoup money from people who have lower costs than those living in their own households - without having to take non-dependant details for Income Support. Thats why it starts at 25.

Before 25 people get the lower rate of benefit, and there seems to be an assumtion that young people should really be living with parents (causing huge hardship to those who do not). After 25 you are paid an amount that is supposed to be enough to allow you to pay all your household bills including gas, water, electric, food...but those who pool household resources have lower costs. And HB recoups this....

This strikes me as less unfair than causing hardship to all under 25s...

I suspect those paying non-dependant deductions aren't significally worse off when you consider the savings made by pooling resources. It certainly isn't uncommon to see benefits claimants with a higher than average disposable income who are non-dependants (showing for example in financial statements for debt clients).

The client's in this case are getting less income than those living seperately, but they will also have lower costs. Are they actually worse off ?

Victoria J

(Now if someone could only challenge the under 25 rule...particularly in respect of those poor young people in temporary accomodation where they must pay food, gas, electric charges to the landlord and loose £20+ before they have eaten lunch or dinner. RANT)

Victoria,

In case you're not aware, the u-25 rule has been challenged - unsuccessfully.

CARSON (& REYNOLDS) v SoS for Work & Pensions (2003) EWCA Civ 797

www.bailii.org/ew/cases/EWCA/Civ/2003/797.html

Regards

The Carson (& Reynolds) case was IS and I don't think the reasoning would apply equally to HB. Since HB claimants are living independantly an increased propensity for under 25s to live with mum and dad doesn't seem to be relevant. In the light of Stec (if it does mean all benefits are possessions) surely the issues of different rates of HB for under 25s, single room rent etc. could be challenged on age discrimination grounds?

The non-dep system (in case the DWP try to argue it) is not about and never has been about achieving some sort of equity between claimants or between claimants and non-claimants.

The non-dep system is the historical legacy of the household means test introduced in the early 1930’s at a time of mass unemployment. In those days a large part of the working class were crammed into overcrowded slum accommodation. Families were often extended ones were adult relatives (cousins, brothers, sisters, mothers, fathers) often shared a household. Incidentally, a right of appeal against means tested benefits was also introduced shortly after (upon advice) as a device for staving off mass civil unrest.

Public spending due to mass unemployment, at that time, could only be sustained either by increased taxation (from those liable to pay it – i.e. the better off) or by cutting back on the benefit bill as a whole. The former measure would not be popular with the middle classes, while the latter, would be acceptable.

Thus the Tory government of the day introduced the household means test, which had the effect of re-distributing income among the less well off rather than from the better off to the less well off. As usual, the incoming Labour government, under Ramsay McDonald at the time, did nothing to repeal the relevant legislation.

Makes my blood boil! That’s my rant for the day!

Makes my blood boil too.
My Dad lived in Liverpool during the police strike of 1919 when the authorities sent in the army and a tank which positioned itself in front of the museum or some other such building and a Drednought was sent up the Mersey turning its guns on the City. It didn't fire them but the message was rec'd loud and clear. Police weren't allowed to join unions after that although I hear there's talk of them wanting to again! Infact the chap who led the police strike was later arrested and ended up in Broadmoor.......this is beginning to sound all too familiar and too close to home with imprisonment without trial now in the 21st Century. Perhaps we should just stick to talking about benefits.

Thanks for this, Victoria.

I'll certainly bear this in mind as a 'devil's advocate' argument. You are quite right about the potential savings that could be achieved by claimants pooling resources and I have, and still do, advocate that there should be a facility for people in poverty and debt to do this. This is where the co-opertive movement started after all.
The Social Security budget is about £119 billion per year and this money is not squirreled away in PEP's, ISA's or off-shore accounts but gets re-cycled back into local economies. Point of fact is, the cohort of the population from which we draw our client base, is propping up the share price of TESCO's, ASDA, Morrison's and most every other supermarket chain; not forgetting the utility companies as well.
With benefits being paid through bank accounts now, it would be entirely possible to set up a special purpose vehicle to channel all benefit purchases through, and negotiate a whopping discount for all benefit claimants .
The profit margin of UK supermarkets is about 5.2%, on the continent it is about 2.5% while in North America its only 1%. By negotiating a reduction in this profit margin to that which Wal*Mat enjoys in the US it would technically be possible to increase the purchasing power of benefits without actually increasing them.........but could we trust Government not to take all the 'savings' for themselves?
If this interests anyone, by all means let me have your email address and I'll let you have a copy of a proposal I put together a few years ago but which got nowhere. Needless to say, there are no 'units' in it for LSC work but it would potentially be of benefit to claimants and those in debt. I haven't given up on pushing this opportunity to actually DO something about benefit rates that are not really enough to live on.

Cheers

Vaughan

I have a similar case where a lone parent with a 18 year old son has been landed with a bill for a few hundred pounds for a housing benefit overpayment. She is the carer of her son who is severely mentally impaired, thus exempt from council tax, is on HRM and HRC of DLA. Because he is on long term ICB, he is classed as a non dependent. Mother is in poor health, so in the process of making a claim for the care component of DLA in order to restore full housing benefit.

I have to admit that the system seems pretty unfair!