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:
- 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.
- The new measures involved a violation by the Secretary of State of the Public Sector Equality Duty under the Equality Act 2010.
- 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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