Going spare?

The High Court has handed down its much-anticipated ruling in the judicial review over changes to housing benefit regulations and the introduction of the so-called 'bedroom tax'. Jonathan Manning explains the judgment.

In R (MA and others) v Secretary of State for Work and Pensions [2013] EWHC 2213 (Admin), July 30, 2013, the High Court has held that the housing benefit social sector size criteria rules (the “bedroom tax”) (reg.B13, Housing Benefit Regulations 2006) do not constitute unlawful discrimination contrary to art.14, ECHR, nor did the Secretary of State violate s.149, Equality Act 2010 when deciding to introduce them.

The decision of the Court of Appeal in Burnip v Birmingham City Council made clear that there should be no deduction of housing benefit where an extra bedroom was required for children who were unable to share because of their disabilities. The Secretary of State was required to amend the Housing Benefit Regulations 2006 to make this clear and he could not simply rely on guidance or Discretionary Housing Payments to remedy the issue.

The background

Section 123, Social Security Contributions and Benefits Act 1992, makes general provision for the scheme of housing benefit to be administered by local housing authorities. Detailed provision for the assessment and payment of housing benefit is made by the Housing Benefit Regulations 2006 (S.I. 2006/213) and Housing Benefit (persons who have attained the qualifying age for state pension credit) Regulations 2006 (S.I. 2006/214).

With effect from April 1, 2013, the Housing Benefit (Amendment) Regulations 2012, S.I. 2012/3040 amended the Housing Benefit Regulations 2006, so that payments to those renting in the social sector were reduced by 14% if the claimant had one more bedroom than was necessary, or 25% if there were two or more unnecessary bedrooms (new regulation B13, inserted into S.I. 2006/213).

There are certain exceptions for claimants requiring overnight carers (reg.B13(6)), foster carers and adult children who are on active service in the armed forces but who intend to continue to live with their parents on their return (reg.B13(6),(7)). There are no exceptions for disabled persons who need an additional bedroom, e.g. a couple who cannot share a bed owing to the disabilities of one or both of them or children who cannot share a bedroom owing to disabilities.

In Burnip v Birmingham City Council and other cases [2012] EWCA Civ 629; [2013] H.L.R. 1, it was held there should be no deduction of housing benefit where an extra bedroom was required for children who were unable to share because of their disabilities. The Local Housing Allowance maximum rent provisions were discriminatory because they did not make provision for this, and discretionary housing payments (DHPs) were not an adequate way of making up the difference and any award, and its amount and duration, were entirely discretionary (see s.69, Child Support, Pensions and Social Security Act 2000; Discretionary Financial Assistance Regulations 2001, S.I. 2001/1167 and Discretionary Housing Payments (Grants) Order 2001, S.I. 2001/2340).

The Secretary of State did not amend the Housing Benefit regulations in light of this judgment, but issued guidance suggesting that local housing authorities should deal with such cases by allowing housing benefit to be calculated on the basis of an additional bedroom.

Article 14, ECHR, provides that the rights protected by the European Convention on Human Rights must be enjoyed by all persons without discrimination on any of a list of specified grounds. Although disability discrimination is not expressly mentioned in art.14, it has been held that it is also prohibited under art.14: AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634. A difference in treatment is not, however, discriminatory if it has an objective and reasonable justification: Stec v United Kingdom (2006) 43 E.H.R.R. 47.

From April 5, 2011, the “public sector equality duty” in s.149, Equality Act 2010, has required all public authorities and bodies which exercise public functions to have due regard, in the exercise of those functions, to the need to eliminate unlawful discrimination, harassment and victimisation and to advance equality of opportunity and foster good relations between persons with protected characteristics (age, disability, gender reassignment; pregnancy or maternity, race, sex, sexual orientation, religion or belief) and other persons (ss.149(1),(2), 2010 Act).

The claimants' case

The claimants were all in receipt of Housing Benefit which had been reduced in accordance with reg.B13. In all but one case, they contended that they needed an extra bedroom because another member of their household (child, adult child or partner) was disabled. In one case, the claimant suffered from obsessive compulsive disorder; he had filled two rooms with papers and contended that he could not move to smaller accommodation.

All the claimants contended that regulation B13 was unlawfully discriminatory contrary to art.14; and (ii) that the Secretary of State had violated s.149, Equality Act 2010. Birmingham City Council, as an interested party, and Shelter, as Second Intervener, argued that it was unlawful (i) for DHPs to be used as the mechanism for redressing any discriminatory effect of Reg,B13, as the DHP regime was ill-suited and inadequate for that task, and (ii) for the Secretary of State to have failed to amend the Housing Benefit Regulations 2006 so as to comply with the decision in Burnip and that it was not open to him to rely on guidance, rather than amend the Regulations themselves, to remedy the illegality found in Burnip.

The High Court's judgment

The claims were dismissed. It was difficult to identify any who exactly comprised the group which was said to be the victim of discrimination. That did not, however, take the cases outside the ambit of art.14. The law required the Secretary of State to fashion a policy which was not disproportionate. When assessing whether that had been achieved, it was necessary to recognise that the case gave rise to issues of “high policy” such that the question became whether the policy of the Secretary of State was “manifestly without reasonable foundation.” Similar considerations arose under s.149, Equality Act 2010, and it was convenient to examine the two issues together.

The refusal to exclude some disabled persons from the regime of B13, and the provision made by way of DHPs, constituted a proportionate approach to the difficulties suffered by such people in consequence of the policy unless it was manifestly without reasonable foundation.

While the absence of a precisely identified class of persons who need extra bedroom space by reason of disability did not take the case out of Article 14, it was a very powerful factor on the question of justification. In Burnip, the Court of Appeal was faced with a discrete group which suffered unlawful discrimination, but that approach could not be applied in the present case, where there was no such discrete group. The Secretary of State had, nevertheless, to consider carefully what steps to take in relation to disabled persons, and others, who would or might face real difficulties arising out of the cap, and his provision of extra funding for DHPs and advice and guidance on their use could not be said to be a disproportionate approach to the difficulties which those persons faced.

The Secretary of State had considered all relevant factors and had concluded that the welfare bill needed to be reduced. That was a policy decision which could not be said to be “manifestly without reasonable foundation.”

It was improper for the Secretary of State to attempt to rely on guidance to remedy the illegality identified in Burnip. To the extent that the Secretary of State contended that he had discretion as to whether to introduce amending regulations, he was wrong. New regulations were required “very speedily”. The court declined to grant an order requiring the introduction of amending regulations at this stage.

Jonathan Manning is a barrister at Arden Chambers. He appeared for Birmingham City Council (interested party) and Shelter (second intervener) in this case.