Disabled challenge to bedroom tax fails

31 July 2013 by

first-home-buyersMA and others (on the application of) v Secretary of State for Work and Pensions & Ors [2013] EWHC 2213 (QB) (30 July 2013) – read judgment

The High Court has unanimously dismissed an application for a declaration that the so-called “bedroom tax” discriminates unlawfully against disabled claimants.

The arguments

This was a challenge by way of judicial review to regulations that came into force last year, reducing the amount of housing benefits by reference to the number of bedrooms permitted by the relevant statute (the Social Security Contributions and Benefits Act 1992 ).  These new rules, which have applied to claimants of housing benefit since April 2013, restrict housing benefit to allow for one bedroom for each person or couple living as part of the household. Discretionary housing payments are available for certain qualifying individuals to mitigate the effect of the new rules, in particular the effects on disabled people and those with foster caring responsibilities.

The applicants based their challenge on three grounds:

  1. The new measures were unlawfully discriminatory because they fail to provide for the needs of disabled people in a way that violates their rights under Article 14 of the Convention.
  2.  The new measures involved a violation by the Secretary of State of the Public Sector Equality Duty under the Equality Act 2010.
  3. The Secretary of State had unlawfully deployed guidance to prescribe the means of calculating the appropriate maximum HB for certain classes of case. That can only be done by secondary legislation; and in any event the guidance cannot cure the discriminatory effects of the regulations.

The primary ground of judicial review rested upon Article 14.  A complaint about discrimination under this Article must always relate to another, “substantive” right. In this case, HB falls within the ambit of Article 1 of the First Protocol to the ECHR as a “possession”. As for the other arguments, in Laws LJ’s opinion, “justification and the public sector equality duty march together”.

The application was dismissed.

Reasoning behind the judgment

The 2012 case of Burnip v Birmingham Borough Council involved similar facts, albeit that it took the form of a statutory appeal rather than judicial review (see Alasdair Henderson’s post on that case). There the Court of Appeal concluded that where the discrimination lay in the failure to make an exception from a policy or criterion of general application in favour of disabled people, the policy maker did not have to adduce weighty reasons to justify the discrimination, especially where questions of social policy are in issue. On the contrary, the claimants had to show that the measure complained of was “manifestly without reasonable foundation”.  In that case, the court concluded that the appellants had suffered unlawful discrimination by the application of the private sector provisions equivalent to the regulations under attack here. But Burnip involved a discrete class of claimants: families with children who could not share a bedroom by reason of their disabilities. There was no such discrete group here.

Strasbourg jurisprudence recognises not only direct discrimination, but what Maurice Kay LJ described at paragraph 11 of Burnip as “a form of discrimination akin to indirect discrimination”. There is also what has become known as Thlimmenos discrimination:

The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.

Notwithstanding these categorisations of “direct” and “indirect” discrimination, the law of discrimination, domestic or European, rests on a single principle: the principle of consistency. In this appeal, the Court found that each of the cases advanced constituted a situation of indirect discrimination, which requires a lower level of justification from the policy maker.

As to the argument that the law should have provided a blanket exemption from these rules for the disabled, Laws LJ took the view that there was no precise class of persons –  those who need extra bedroom space by reason of disability – which could be identified in practical and objective terms and sufficiently differentiated from other groups equally in need of extra space but for other reasons.

But the common law would not for that reason absolve the Secretary of State from the duty to consider and take account of the effects of his prospective policy on the disabled. So also Article 14 is not disapplied. The case remains one where the policy has markedly disparate effects between groups of persons, even if the groups have no sharp edges.

The concrete question was whether the refusal to exclude (some) disabled persons from the new regime, and the provision made and to be made by way of access to DHPs, constituted a proportionate approach to the difficulties suffered by such persons in consequence of the HB policy.  Having considered the legislative history of the new HB rules, Laws LJ observed that the “engine” of these regulations

is not only the saving of public funds, though where (as here) that is proposed to be done in the context of a major State benefit, it might be thought high policy enough. But there is also a strategic aspiration to shift the place of social security support in society. So much is plain from the published budget statement of June 2010, [“reforming the welfare system to reward work”]…  The aspiration is contentious. It is elementary that the judges have no public voice for or against it. Its relevance is only that it puts the case even more firmly into the realm of high policy

Neither the Human Rights Act nor the Equality Act provide a platform for judicial intervention in matters of high policy such as this. Such an expansion of the judicial role would disturb the proper constitutional balance:

 Much of our modern law, judge-made and statutory, makes increasing demands on public decision-makers in the name of liberal values: the protection of minorities, equality of treatment, non-discrimination, and the quietus of old prejudices. The law has been enriched accordingly.  But it is not generally for the courts to resolve the controversies which this insistence involves.  That is for elected government.  The cause of constitutional rights is not best served by an ambitious expansion of judicial territory, for the courts are not the proper arbiters of political controversy.  In this sense judicial restraint is an ally of the s.149 duty [under the Equality Act], for it keeps it in its proper place, which is the process and not the outcome of public decisions.  I would with respect underline what was said by Elias LJ at paragraph 78 in Hurley, rejecting a submission for the claimants that it was for the court to determine whether appropriate weight has been given to the duty: “it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.”

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  1. Jenny says:

    So if one family has a massive house (say 150m2) but only one bedroom and another family has a small house (say 80m2) with 3 tiny bedrooms are they being treated equally and fairly by this bedroom tax? Do people have to rent one-bedroom mansion flats and put up their own (but temporary) walls? Disproprtionate to aims and unfair in my opinion, just more harassment of the poor and disabled.

  2. frednach says:

    The arguments raised by the claimants in my view raise more questions than answers to that extent I shall submit some possible grounds for appeal.
    First, under the provisions of Regulation B13 (4) provides that;
    (4) Where it appears to the relevant authority that in the particular circumstances of any case the limited rent is greater than it is reasonable to meet by way of housing benefit, the maximum rent (social sector) shall be such lesser sum as appears to that authority to be an appropriate rent in that particular case.

    Does this mean that where the maximum rent is higher than the HB entitlements that an authority can override the rent in appropriate cases to a lesser sum and therefore reduce the HB shortfall? If so we need to ask when this is appropriate, and which particular cases this apparent discretion applies- are there are circulars or guidance applicable.
    Second, in my view the courts failed to address the substantive issue in regards to discrimination by virtue of focusing primarily on article 14 thereby eliminating any analysis beyond direct discrimination as observed by Maurice Kay LJ Para 13 ;-
    “[t]he case for the appellants is not that the statutory criteria amount to indirect discrimination against the disabled. It is that, in one way or another; they have a disparate adverse impact on the disabled or fail to take account of the differences between the disabled and the able-bodied.”
    Further he goes on to add that “The appellants, moreover, relied entirely on Article 14; the Disability Discrimination Act 1995 did not feature (paragraph 7)”.
    This is significant since the existence of the Strasbourg court no cases have ever been found wanting for breach of Article 14 to the extent a former court Judge observed how remarkable it was that in no time over the fifty years have any government or their public bodies been found to have discriminate “on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” What’s more it is significant that there is no mention of disability discrimination in the body of the article only reference to ‘national minority’ or as the courts viewed it as ‘other status’.

    This short-sightedness has led to the court to readily justify the bedroom tax since the justifications for the policy ie to save £500m is equally application to all social sector claimants. Therein lies the problem, the regulations may apply to all claimants but the impact on some is far reaching than others, in particular those with disability needs as acknowledged in the judgement. By its failure to address the rigours of domestic law on disability discrimination, in particular indirect discrimination as defined by EA 2010 section 19 which defines prohibited indirectly discrimination in the form of any provision, criterion or practice which puts or would put them at a disadvantage without any legitimate or proportionate means, section 20 DDA 1995 adds a further definition as a prohibited ‘condition’, the courts cannot have said to have performed any PSED where it fails to account the impact of such policy of disabled applicants less the likely impact on those with different categories of disability or indeed age or gender with some needing overnight care, adaptations, localised services, support etc, though it admits through documentary papers that it should have made exemptions for disabled categories of applicants (see Para 76 which reads;-
    There was.. no analysis of disability-related matters. The Equality Impact Assessment of June 2012 did not indicate the numbers of disabled persons with housing needs which would not be met under the new regime. It did not address the implications of the measure for disabled people, or (in particular) for those with mental and learning difficulties).

    This omission is visible by virtue of the above regulation which makes an exemption with “one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care (or in any case where each of them is)”, but not it would appear when it comes to a child. This clear difference and discriminatory practice has been corrected by the BURNIP [2012] EWCA Civ 629 decision. But as the court observed the decision is far from clear as “It does not provide for an extra bedroom in other circumstances, for example, where the claimant is one of a couple who is unable to share a bedroom or where an extra room is required for equipment connected with their disability” Para 28. Therefore, the fact remains in the courts word ‘there was no due regard to B13’s failure to confront the difficulties of those who need larger accommodation, nor to the Regulation’s impact on children’ Para 76.

    Third, DHB is neither an answer nor solution to discriminatory policy direct or indirect for a number of reasons. This additional but largely ‘unknown’ support with no right of appeal of £30m is insufficient a sum to account for any displacement, property adaptations and loss or requirement for additional support- disabled people do not have the same access to services or facilities for advice. It also needs to be asked how many properties does a local authority have in which to re-allocate, and what assessment is in place to take individual needs into account (estimated 35000 wheelchair users alone)? That aside how is allocation to take place without sufficient resources or suitable properties, and what of the allocations per se. We have seen local authorities wrongly allocating properties by providing reasonable preference to non- preference under-occupiers than preference overcrowded, which can therefore be challenged. Moreover, in a recent episode on Channel 4 showed how perverse this policy is where a disabled applicant had been forced to downsize from two beds adapted property to one bed leaving his vacated two beds property to a single working person? Is this truly a manifestly rational, objective and justifiable policy, to that extent does it really do what it intends through the EA i.e. having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, in particular, to the need to—

    (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
    (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
    (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.”

  3. sue says:

    Burnip did not involve a discrete class of claimants. The eponymous appellant, Ian Burnip is a disabled adult who needed a room for a carer. The other two cases, Trengove and Gorry did involve children.

  4. John Love says:

    If the Law were to be consistent, it raises the question of the competence of the lawyers and the Judiciary who allowed the permission for Judicial Review. As these “Competent Persons” should have known and expected to know; “Neither the Human Rights Act nor the Equality Act provide a platform for judicial intervention in matters of high policy such as this. Such an expansion of the judicial role would disturb the proper constitutional balance”:
    I believe that by making the application for Judicial Review and it passing the permission stage meant that in the granting permission it was believed to stand a reasonable chance of success. If the “competent lawyers on both sides and the Administration Judges failed to recognise this application would disturb the proper constitutional balance, then there is confusion or ignorance of “Competent Persons” what is; “plain from the published budget statement of June 2010, [“reforming the welfare system to reward work”]… The aspiration is contentious. It is elementary that the judges have no public voice for or against it. Its relevance is only that it puts the case even more firmly into the realm of high policy.” This would also raise questions that this, my understanding is based on the reasons given for this decision in the Judicial Review. I am not a Lawyer but everyone is expected to know the Law.

  5. Tim says:

    The UK’s kangaroo court judges collude with the Tories to attack and bully disabled people.

  6. jonholbrook says:

    On Spiked I have argued that In a democracy, parliament, not the judiciary, must have the last word on policy:

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