Housing Benefit Size Criteria, Human Rights and Disabled People: Secretary of State Unlawfully Discriminates
By Jan Jesson
We are delighted with the Court of Appeal ruling on our Article 14 challenge in respect of our client , the late Miss Lucy Trengove. See here for the full judgement. As reported in our post of 18 th March, the statutory appeal for local housing allowance, joined with the cases for Ian Burnip and Richard Gorry, challenged the discriminatory impact on severely disabled persons needing an additional bedroom of Regulation 13 (D) of the Housing Benefit Regulations 2006.
Although the legislation had been amended from 11/4/11 to make provision for an additional bedroom when a severely disabled person needs to accommodate overnight carers, the appeals in the first 2 cases concerned the period prior to the legislative amendment, when no provision was made for them, and in the case for Richard Gorry, whose two disabled daughters need separate bedrooms of their own, the additional housing need remained unprovided for.
In a significant ruling, the Court of Appeal unanimously held that –
(1) the appellants have established a prima facie case of discrimination pursuant to Article 14 and (2) for the reasons set out in the judgment of Henderson J, the Secretary of State has failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria . (Kay LJ, paragraph 24)
It was common ground that ‘disability’ was a status falling with Article 14, and that housing benefit falls within the ambit of Article 1 of Protocol 1 as a ‘possession’. Richard Drabble QC submitted for the Appellants that one way or another, the statutory criteria have a disparate adverse impact on the disabled, or failed to take account of the differences between disabled and able-bodied persons. Citing DH v Czech Republic (2008) 47 EHRR 3 and Thlimmenos v Greece (2001) 31 EHRR, the different approaches were described as complimentary and overlapping, rather than mutually exclusive.
The Court had no difficulty in recognizing the discriminatory impact of the housing benefit regulations, without resort to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which Counsel for the Appellants, and Helen Mountfield QC for the Equality and Human Rights Commission, as Intervener, relied upon, holding (para 22)
If the correct legal analysis of the meaning of Article 14 discrimination in the circumstances of these appeals had been elusive or uncertain (and I have held that it is not), I would have resorted to the CRDP and it would have resolved the uncertainty in favour of the appellants. It seems to me that it has the potential to illuminate our approach to both discrimination and justification.
The Court rejected arguments on behalf of the Secretary of State that the analysis for the Appellants was flawed because it did not use correct comparators (citing the Malcolm case); the criticism that the Appellant’s case was not founded on statistical evidence; and that the Thlimmenos principle is more limited than is suggested, holding –
· It would be quite wrong to resort to Malcolm so as to produce a restrictive approach to Article 14. Indeed, one of the attractions of Article 14 is that its relatively non-technical drafting avoids some of the legalism that has affected domestic discrimination law. (para 13)
· On the same basis, I would reject the attempt on behalf of the Secretary of State to criticise the appellants’ case for not being founded on statistical evidence. Whilst such evidence can be important in an Article 14 case (see, for example, Hoogendjik v Netherlands (2005) 40 EHRR SE 22, at page 207), it is not a prerequisite. Where, as in the present case, a group recognised as being in need of protection against discrimination – the severely disabled – is significantly disadvantaged by the application of ostensibly neutral criteria, discrimination is established, subject to justification.(para 13)
· Whilst it is true that there has been a conspicuous lack of cases post- Thlimmenos in which a positive obligation to allocate resources has been established, I am not persuaded that it is because of a legal no-go area.
· I can see no warrant for imposing a prior limitation on the Thlimmenos principle. To do so would be to depart from the emphasis in Article 14 cases which, as Baroness Hale demonstrated in AL (Serbia) (at paragraph 25), is “to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification”.(para 18)
On the question of justification, the Court gives very clear guidance as to the correct approach.
It is elementary that what has to be justified is not the scheme of HB as a whole, or the general policy of calculating HB in the private sector by reference to the number of bedrooms deemed to be needed by “occupiers”, but rather the difference in treatment resulting from the application of those criteria which has been held to infringe Article 14 (para 26)
The submission for the Appellants that ‘very weighty reasons’ would be needed to justify discrimination in the case of congenital disability, was rejected, holding –
Weighty reasons may well be needed in a case of positive discrimination, but there is no good reason to impose a similarly high standard in cases of indirect discrimination, or cases where the discrimination lies in the failure to make an exception from a policy or criterion of general application, especially where questions of social policy are in issue. As in AM (Somalia), therefore, the proportionality review applicable in the present case must be made by reference to the usual standard, not an enhanced one.
After detailed analysis of the various benefits in payment Henderson J addresses the question whether the wider benefit context provides an objective and reasonable justification for the discrimination found to be established in relation to the amount of housing benefit. Drawing a clear distinction between subsistence benefits and benefits in respect of housing needs, he concluded -
It would therefore be wrong in principle, in my judgment, to regard Mr Burnip’s subsistence benefits as being notionally available to him to go towards meeting the shortfall between his housing- related benefits and the rent he had to pay. (para 45)
It is not yet known whether the Secretary of State will appeal to the Supreme Court, but we are gratified that the after a three year fight for the rights of our client and disabled people like her, justice has prevailed, and social security law is not ‘human rights-proof’.
The Claimant was represented by Richard Drabble QC and Desmond Rutledge.