Human rights – Housing benefit – Regulation B13 of Housing Benefit Regulations 2006 – Article 14 of European Convention on Human Rights – Reduction of housing benefit for those deemed to be under-occupying property – Whether application of regulation B13 discriminatory in its application to certain individuals with disabilities or living with family members with disabilities – Whether resulting in sex discrimination against female victim of domestic violence occupying property with room adapted as “safe” space under Sanctuary Schemes – Whether breach of public sector equality duty under Equality Act 2010 – Appeals determined accordingly
Each of the joined appeals concerned claims brought by individuals living in social housing, and in receipt of housing benefit, in which they challenged the lawfulness of regulation B13 of the Housing Benefit Regulations 2006 as it applied to their cases. Regulation B13 was introduced into the 2006 Regulations by the Housing Benefit (Amendment) Regulations 2012, which came into force on 1 April 2013 and had the effect of reducing housing benefit if the accommodation in which a person lived exceeded the number of bedrooms deemed to be required as defined by a formula. The formula was varied by Regulation B13(5)-(7), which provided that an additional bedroom would be allowed for defined classes of persons. There was also provision for discretionary housing payments (DHPs) to be made available to those who, although not falling within the defined class of persons, might have needs which should reasonably be met by DHPs. Such discretionary payments were administered by the relevant local authority people who lived in social housing and were in receipt of housing benefit.
Each of the claimants had part of their means-tested housing benefit removed pursuant to regulation B13 on the ground that they were under-occupying their property. The claimants in in the first two cases all either had disabilities or lived with family members who had disabilities. The claimant in the third case was a female victim of serious domestic violence, who lived with her son in a three-bedroom house adapted pursuant to the Sanctuary Schemes to provide her with a “safe” room. The claimants in the fourth case were a severely disabled child and his grandparents, who cared for him; they occupied a three-bedroom house, with the third bedroom used for professional respite carers who stayed overnight twice a week.
Each of the claimants contended that their omission from the defined class of persons who were allowed an additional bedroom under regulation B13 amounted to unlawful discrimination contrary to Article 14 of the European Convention on Human Rights and was a breach of the respondent’s public sector equality duty (PSED) under section 149 of the Equality Act 2010.
In the first two cases, the Court of Appeal accepted that regulation B13 had a discriminatory effect on some people with disabilities, but held that the discrimination was justified and that the claimants’ needs could be met as necessary though the DHP scheme based on individual assessments. It also found that there was no breach of the 2010 Act: see [2014] EWCA Civ 13. The claimants appealed.
In the third and fourth cases, the claims of discrimination, respectively on the grounds of sex and of disability, were allowed although the claims under the 2010 Act were rejected: see [2016] EWCA Civ 29. The secretary of state appealed on the discrimination ground. The claimant in the third case cross-appealed in relation to the 2010 Act.
Held: The first appellant’s appeal was allowed; the other appeals in the first and second cases were dismissed; (Lady Hale and Lord Carnwath dissenting) the third appeal was allowed and the cross-appeal was dismissed; the fourth appeal was dismissed.
(1) The appropriate test in cases about inequality in welfare systems was normally whether the discrimination was “manifestly without reasonable foundation”. Choices about welfare systems involve policy decisions on economic and social matters which were pre-eminently matters for national authorities. The Court of Appeal was correct to apply the normal approach when considering the housing benefit cap. Issues relating to regulation B13 and its potential impact on those with disabilities were a clear example of economic and social policy and the way in which those issues were dealt with was integral to the structure of the welfare benefit scheme: Humphreys v Commissioners for HM Revenue and Customs [2012] 1 WLR 1545 applied.
(2) The government and Parliament had considered in great depth the impact of regulation B13 on those with disabilities. The secretary of state’s decision to structure the scheme as he did was reasonable. There was a reasonable foundation for the decision not to create a blanket exception for anyone suffering from a disability within the meaning of the Equality Act 2010 and for regarding a DHP scheme as more appropriate than an exhaustive set of bright line rules to cover every contingency.
(3) However, that was not the end of the matter since some people who suffered from disabilities had a transparent medical need for an additional bedroom. Regulation B13 entitled claimants to an additional bedroom in the case of children, but not adults, who could not share a bedroom because of their disabilities; and adults, but not children, in need of an overnight carer. There was no sensible reason for distinguishing between adult partners who could not share a bedroom because of disability and children who could not do so because of disability; or between adults and children in need of an overnight carer. The first claimant in the first appeal was an adult who could not share a room with her husband due to her disabilities. The claimants in the fourth case required a regular overnight carer for their grandson with severe disabilities. The decisions in relation to those claimants were manifestly without reason and involved a violation of Article 14 of the Convention, taken with Article 8.
(4) In relation to the other claimants in the first and second cases, their need for an additional bedroom was not connected, or not directly connected, to their family member’s disability. Therefore, while there might be good reasons for them to receive state benefits to cover the full rent, it was not unreasonable for their claims to be considered on an individual basis under the DHP scheme.
(5) (Lady Hale and Lord Carnwath dissenting) In the third case, there was no objective need for the claimant to have three bedrooms, one of which was unoccupied. While she had lived in the property for many years, knew her neighbours and felt safe there, which were powerful reasons for not wanting to move, those reasons had nothing to do with the size of the property or the number of bedrooms. While those in need of the protection of Sanctuary Scheme housing should receive it, that did not require the court to hold that there was a valid claim against the secretary of state for unlawful sex discrimination in the third case. There was no automatic correlation between being in a Sanctuary Scheme and having a need for an extra bedroom. The state had a positive duty to provide effective protection to victims of gender-based violence, but the means by which such protection was provided was not mandated and the claimant in the third case had not established that regulation B13 would deprive her of a safe haven. While there would be some people who had a very powerful case for remaining where they were, on grounds of need unrelated to the size of the property, a decision had been made not to try to deal with such cases by general exemptions for particular categories but to take account of them through DHPs: Burnip v Birmingham City Council [2012] EWCA Civ 629; [2012] LGR 954 considered.
(6) The PSED under the 2010 Act was a duty on the part of a public authority to follow a form of due process, namely an obligation to have due regard to the need to eliminate discrimination, and advance equality of opportunity, between those with and without a relevant protected characteristic. On the history of events and the evidence, the secretary of state had properly considered the potential impact of the housing benefit cap scheme on individuals with disabilities. Although he had not specifically considered the impact of regulation B13 on those within sanctuary schemes, he had addressed the question of gender discrimination. The claims based on breach of the PSED under the 2010 Act had therefore properly been dismissed. (Lady Hale and Lord Carnwath dissenting in relation to the third case).
Richard Drabble QC (instructed by Leigh Day) appeared for the first appellant in the first case; Martin Westgate QC and Aileen McColgan (instructed by Leigh Day) appeared for the second appellant in the first case; Martin Westgate QC and Aileen McColgan (instructed by Central England Law Centre) appeared for the appellants in the second case; James Eadie QC, Tim Eike QC, Gemma White QC, Edward Brown and Simon Pritchard (instructed by the Government Legal Department) appeared for the secretary of state as respondent in the first and second cases and appellant in the third and fourth cases; Karon Monaghan QC, Caoilfhionn Gallagher and Katie O’Byrne (instructed by Hopkin Murray Beskine) appeared for the respondent and cross-appellant in the third case; Richard Drabble QC and Tom Royston (instructed by Child Poverty Action Group) appeared for the respondents in the fourth case.
Sally Dobson, barrister
