Burnip v. Birmingham City Council, Trengrove v. Walsall Metropolitan Council, Gorry v. Wiltshire Council  EWCA Civ 629 – read judgment
In the same week that the Secretary of State for Work and Pensions, Iain Duncan-Smith, announced his intention to implement sweeping reforms of the current system of disability benefits, the Court of Appeal has ruled that housing benefit rules were discriminatory against disabled people, in breach of Article 14 read with Article 1 Protocol 1 of the European Convention.
Mr Duncan-Smith has already faced opposition to his reform proposals but has made it clear that he is willing to tackle this controversial issue. However, this week’s ruling is a timely reminder that social security law is extremely complex and that the Government will have to tread very carefully to avoid unwittingly causing further instances of unlawful discrimination.
There were three claimants in this case. Mr Burnip and Ms Trengrove (who sadly died in December and whose claim was continued by her estate) both had severe disabilities which meant that they needed the presence of carers throughout the night in the rented flats in which they lived. This meant that they needed two-bedroom flats. Mr Gorry and his wife had three children. Two of their daughters were disabled and therefore could not share a bedroom in the way that two non-disabled children of the same age could. The family therefore needed to live in a four-bedroom house.
All three claimants were entitled to receive housing benefit (HB). The problem was that in each case the amount of HB they received was calculated by reference to a one-bedroom flat or three-bedroom house, without taking into account the need for an additional bedroom because of disability. A detailed account of what this meant financially for each claimant is set out at paragraphs 23-55 of the judgment, but in short the effect was that there was a greater shortfall between the amount of HB received and the actual amount of rent they had to pay each week than there would have been for an equivalent non-disabled person. The claimants argued that this was unlawful discrimination under the ECHR.
The claimants were all housed in private rented accommodation. In such cases HB is paid by way of a rent allowance, and the level of the alllowance is calculated by reference to (amongst other factors) the number of bedrooms which the recipient and his/her family are deemed to need. The relevant regulations – the Housing Benefit Regulations 2006 – provide that there is to be one bedroom for each ‘occupier’ (i.e. person who occupies the relevant property as their home) and ‘occupier’ is defined as a couple, an adult, two children of the same sex, two children under 10 or a child.
Mr Burnip and Ms Trengove’s overnight carers did not qualify as ‘occupiers’ since the accommodation was not their home. The two Gorry daughters were considered to be a single ‘occupier’.
The claimants did not pursue their claim under the domestic disability discrimination legislation applicable at the relevant time (the Disability Discrimination Act) but instead under Article 14 of the ECHR. The judgment does not explain why this is, but the likely reason is that the House of Lords decision in Malcolm restricted the scope of indirect discrimination under the DDA so much that no claim could have been made under it. The effect of Malcolm has now been removed by the enactment of the Equality Act 2010.
Although disability is not expressly mentioned in Article 14, it falls within the phrase “or other status” (AM (Somalia)  EWCA Civ 634). HB is a form of ‘possession’ for the purposes of Article 1 Protocol 1 (RJM  1 AC 311). The claimants put forward two arguments for why the HB provisions were discriminatory under the ECHR:
- Whilst the statutory criteria provided for a non-disabled person to be given HB which would be an adequate contribution towards his accommodation needs, they failed to make equivalent provision in relation to more costly needs of the severely disabled. Although neither the non-disabled nor the disabled person was provided with a complete rent subsidy, the shortfall in relation to a disabled person was significantly greater because their HB was geared to one room fewer than their objective needs.
- Article 14 does not just prohibit States from treating differently persons in similar situations, but also requires States to treat persons differently whose situations are significantly different (Thlimennos v. Greece  31 EHRR 15). Disabled people have greater needs than non-disabled people. The State’s failure to recognise this difference by making adequate additional provision is a breach of its positive obligation under Article 14.
The reasoning of the Court of Appeal’s unanimous decision is split between Maurice Kay LJ (who deals with the question of whether there was discrimination) and Henderson J (who deals with the question of whether the discrimination was justified).
Maurice Kay LJ held that on either of the arguments put forward by the claimants the HB provisions were discriminatory. He held that the restrictive approach to discrimination used in Malcolm did not apply to Article 14, commenting that “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”, and found simply that:
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.
He took note of the Secretary of State’s argument that the Thlimennos positive obligation had not yet been applied by the courts so as to require a State to allocated a greater share of public resources to a particular group, but went on to find that:
I accept that it is incumbent upon a court to approach such an issue with caution and to consider with care any explanation which is proffered by the public authority for the discrimination. However, this arises more at the stage of justification than at the earlier stage of considering whether discrimination has been established. I can see no warrant for imposing a prior limitation on the Thlimmenos principle.
Henderson J did not accept the claimants’ argument that an ‘enhanced’ proportionality test applied to the question of whether the discrimination was justified. Although he noted the Strasbourg case-law that “very weighty reasons” are need to justify active discrimination on grounds of disability, he found that:
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.
Nevertheless, even on the normal standard of proportionality test, he held that the Secretary of State had not established an objective and reasonable justification of the discriminatory effect of the HB criteria. He considered in detail the other benefits received by each claimant, and in particular the fact that they could receive additional ‘discretionary housing payments’ to cover some or all of the shortfall between their HB allowance and the actual rent. However, he found that because these payments were discretionary and there was no guarantee of them being provided they could not, by themselves, justify the discrimination.
The Secretary of State emphasised the wide margin of appreciation accorded to the State in ECHR jurisprudence in relation to general measures of economic and social strategy, and relied heavily on the decision in AM (Somalia) – a disability case where the Court of Appeal had found that discrimination was justified. However, Henderson J held that the present case was distinguishable – it did not involve immigration (as AM did), the exception from the normal HB criteria was sought only for a very limited category of claimants who had severe disabilities (unlike all disabled people, as in AM), and Parliament had already seen fit to legislate to deal with the issue (see below).
It should be noted that this issue only arose because the claimants were housed in the (more expensive) private rental sector. Had the local authority been their landlord they would have been allocated accommodation based on their assessed housing needs, which would have included any needs arising from their disability. The difficulty is that social housing did not seem to be available for these claimants. At a time when a cap on housing benefit has led to accusations of ‘social cleansing’, rents are increasing and a lack of affordable housing is a major issue, this is another factor to consider in the debate over the best way to address the housing crisis.
Second, there has already been a legislative amendment to fix the problem in Mr Burnip and Ms Trengove’s cases. In April 2011 the regulations were changed to provide for “one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care.” The problem faced by Mr Gorry is still live, however.
Third, Maurice Kay LJ made some interesting comments about the effect of the UN Convention of the Rights of Persons with Disabilities. He reached his conclusions on discrimination without reference to the CRDP, so his remarks are obiter, but he noted that, contrary to the comments of Sales J in the recent case of NM v. Islington  EWHC 414, the European Court of Human Rights has “shown an increased willingness to deploy other international instruments as aids to the construction of the ECHR.” He summarised the correct use of the CRDP as follows:
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.
Those bringing, or thinking of bringing, disability discrimination claims in the future would therefore be well-advised to look at the CRDP if the domestic law or ECHR jurisprudence is not clear.
Sign up to free human rights updates by email, Facebook, Twitter or RSS