In this important case, the Court of Appeal held that UK housing benefit rules were in breach of Article 14 of the European Convention of Human Rights. Article 14 could include an unjustified failure to treat differently people who were in a significantly different situation. The claimants in this case required an extra bedroom because of disability, and the housing benefit rules failed to allow for that.
Court of Appeal, 2012. Full judgment on bailii.org.
Note: The similar case of R (MA and Ors) v Secretary of State for Work and Pensions (link to bailii.org) was decided by the Court of Appeal in February 2014. The court held that the ‘bedroom tax’ in relation to adults was discrimination under Article 14 (as in the Burnip case) unless it was justified. However, the court held here that it was justified and therefore lawful, because discretionary payments were available.
Facts of Burnip case
Housing benefit rules for the private rented sector did not allow for a second bedroom to accommodate a carer, where a severely disabled person required the presence of a carer throughout the night. (The rule was changed from April 2011, and this appeal related to the period before then.)
In a joined case, the housing benefit rules allowed for only one bedroom to be shared by two girls who needed separate bedrooms because of disability.
The claimants argued that the housing benefit rules breached Article 14 of the European Convention of Human Rights (ECHR)
Court of Appeal
Held: the claim succeeded. Discrimination under Article 14 can include failure to treat differently persons whose situations are significantly different, without objective and reasonable justification. That applied here. The failure to treat the disabled housing benefit claimants differently was not justified, and in breach of Article 14.
‘Disability’ within Article 14
It was not disputed that ‘disability’ fell within the concluding words of Article 14 “or other status” (para 8 of judgment).
Housing benefit fell within ambit of the Convention
It was not disputed that housing benefit was within the scope of Article 14, because housing benefit falls within the ‘ambit’ of Article 1 of the First Protocol of the Convention as a “possession”: See: Property (including tax and social security): Protocol 1, Article 1. It was therefore not necessary to decide whether the case fell within the ‘ambit’ of Article 8 (private and family life). (para 8 of judgment)
The Court of Appeal accepted that there was prima facie discrimination based on the principle in Thlimmenos v Greece, that Article 14 is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. The Court of Appeal said at para 18:
“Whilst it is true that there has been a conspicuous lack of cases post-Thlimmenos in which a positive obligation to allocate resources has been established, I am not persuaded that it is because of a legal no-go area. 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…”
The Court of Appeal also seems to have accepted the claimants’ alternative submission that there was indirect discrimination within D.H. v Czech Republic. (My comment: If one takes the distinction drawn by Elias LJ in AM (Somalia), this would seem to be a case within Thlimmenos rather than indirect discrimination: see Suggested distinction between Thlimennos and indirect discrimination).
Relevance of UN Convention
The Court of Appeal also said that if the correct legal analysis of Article 14 in the circumstances of the case had been uncertain (which it was not), the court would have resorted to the UN Convention on the Rights of Persons with Disabilities (CRPD). This Convention would have resolved the uncertainty in favour of the claimants. “It seems to me that [the CRPD] has the potential to illuminate our approach to both discrimination and justification” (para 22).
The claimant argued that “very weighty reasons” would be needed to justify discrimination on grounds of congenital disability. The Court of Appeal disagreed in a case such as the present one. “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.” (See Justification: ‘Very weighty reasons’.)
Even so, the Court of Appeal came to the conclusion that there was a breach of Article 14. The failure to treat the disabled claimants differently, ie the failure to reflect their need for an extra room, was not jusitified.
- Disabled people’s human rights must be factored into housing benefit (publicsectorexecutive.com)
- Article 14, Disability, HB and Bright-Line Rules (nearlylegal.co.uk)