One claimant cared full-time for her adult daughter who had severe disabilities. They had specially adapted accommodation. Her Housing Benefit was reduced because of an ‘extra’ bedroom (the ‘bedroom tax’). It would have been highly undesirable for the claimant to have to move. The court held this was potentially discrimination under Article 14 of the European Convention on Human Rights, which required “very weighty reasons” to justify. However the UK government could justify it in the light of safeguards as to when Discretionary Housing Payments would have to be granted. (The case of the other claimant concerned domestic violence.)
2019, European Court of Human Rights (ECtHR). Full judgment https://hudoc.echr.coe.int/eng?i=001-196897
Facts
First claimant: disability
The first claimant cared full-time for her adult daughter who had severe disabilities. They lived in a 3-bedroom property in the social rented sector. It was specifically designed to accommodate their needs, including wide doors, an internal lift, a gradual slope at front and rear for wheelchair access, ceiling hoists and a changing bed.
The rent was funded by Housing Benefit. From 2012 their benefit was reduced by 14% under new regulations, because three bedrooms for two people were seen as one more than they needed (commonly called the ‘bedroom tax’). This meant the Housing Benefit no longer met full the cost of the rent. The claimant was awarded Discretionary Housing Payments (DHP) by the local authority on a temporary basis, but the last award had expired and she was awaiting a response to her most recent claim.
She argued that she had objective housing needs based on her daughter’s disability to stay in the same property, and that failure of her Housing Benefit to cover the full rent was a failure to make a reasonable accommodation in the case of disability within Çam v. Turkey.
Second claimant: domestic violence
The second claimant lived in a 3-bedroom house with her son in the social rented sector. She was allocated the house over 25 years before because of a shortage of 2-bedroom houses. Her son was conceived through rape by a man X with whom she had had a brief relationship. X was considered extremely dangerous. The police referred her to the “Sanctuary Scheme” which aims to protect those at risk from the most severe forms of domestic violence. Under this scheme her attic was adapted as a “panic room” where she and her son could retreat in the event of an attempted attack by X.
Like the first claimant, her Housing Benefit was reduced by 14% because of the ‘extra’ bedroom. Discretionary Housing Payments (DHP) to meet the difference were awarded on a temporary basis. At one point DHPs were refused by the local authority and she received a letter threatening her with eviction, but the DHPs were reinstated when the Secretary of State intervened.
She argued that reducing her Housing Benefit was discrimination on the basis of gender within Thlimmenos v Greece, as victims of domestic violence are overwhelmingly women. The new regulations aimed to encourage tenants to move or to work, but as a result of the violence and threats she suffered from post-traumatic stress disorder, depression and suicidal ideation, was unable to work, and lived in constant fear. The UK Supreme Court accepted that she needed to stay in her adapted accommodation as long as she needed it. She argued DHP payments could not alleviate the reduction in Housing Benefit because they were discretionary and precarious.
ECtHR judgment
In summary, the European Court of Human Rights (ECtHR) held that in the case of the first claimant (disability) there was not unlawful discrimination under Article 14 of the European Convention on Human Rights, but there was unlawful discrimination in the case of the second claimant (domestic violence).
Within ambit of a Convention right
To be discrimination under Article 14, the case must fall within the scope of another Convention right. The court held at para 63 that as it involved welfare benefits, the case fell within the scope of Article 1 of Protocol 1 (A1P1) on possession of property.
Grounds of discrimination
The Court said (para 82) it had already held that “a person’s health status, including disability and various health impairments, fall within the term ‘other status’ in the text of Article 14 of the Convention…”
The Court had also considered that discriminatory treatment of a person on account of the disability of his or her child, with whom he or she has close personal links and for whom he or she provides care, is a form of disability-based discrimination covered by Article 14 of the Convention (Guberina v Croatia 2016 at para 76-79).
Furthermore the Court had held that victims of gender-based violence may be able to invoke the protection of Article 14.
Reduced ‘margin of appreciation’ – “very weighty reasons” needed
The ‘margin of appreciation’ is basically the degree of discretion which the State has to make decisions (eg on whether less favourable detriment of disabled people is justified), with which the court will not interfere.
The court said that even a wide margin of appreciation in the sphere of economic or social policy did not justify the adoption of laws or practices that would violate the prohibition of discrimination. Hence, in the context of Article 14 with A1P1, the court would limit its test to whether the legislature’s policy choice was “manifestly without reasonable foundation” only if an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality. An example of such a transitional measure would be correcting inequality in state pension ages as in the case of Stec (para 88). However:
“89. Outside the context of transitional measures designed to correct historic inequalities, the Court has held that given the need to prevent discrimination against people with disabilities and foster their full participation and integration in society, the margin of appreciation the States enjoy in establishing different legal treatment for people with disabilities is considerably reduced (see Glor v. Switzerland…), and that because of the particular vulnerability of persons with disabilities such treatment would require very weighty reasons to be justified (see Guberina, cited above, § 73)…”
As regards gender equality too, very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention.
Further detail on the case
The Court said this was a case of alleged indirect discrimination. The reduction in Housing Benefit was calculated in the same way for everyone. The question was whether it produced disproportionately prejudicial effects on the claimants because of their particular circumstances, linked to the disability of the first claimant’s daughter and the gender of the second claimant (para 90-91).
It was an anticipated consequence of the reduction of the Housing Benefit that all benefit recipients who experienced the reduction could be at risk of losing their homes. This government argued this precarity was the intention of the scheme; to incentivise families to move. However for the two claimants the loss of their home would cause much more severe effects than for others whose entitlement to Housing Benefit was reduced (para 92). Also they were signficantly less able to work or to take in tenants to mitigate their loss (para 93). Therefore the claimants, having been treated in the same way as other recipients of Housing Benefit, were particularly prejudiced by that measure because their situation was significantly different for reasons of disability and gender (para 94.
The court then asked whether the government’s failure to take account of that difference was discriminatory, in other words was it justified? The court said the measure would be discriminatory “if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised” (para 96). As discussed above, very weighty reasons would be required to justify the measure. The claimants accepted that the legitimate aim was to curb public expenditure by ensuring that social sector tenants of working age who were occupying premises with more bedrooms than required should, wherever possible, move into smaller accommodation. As to whether there was a reasonable relationship of proportionality, the court said it did not appear that the aims envisaged by the legislative changes could have been achieved by applying them to the claimants. But that was not the end of the matter. The court said:
“100. However, as with most complaints of alleged discrimination in a welfare or pensions system, the issue before the Court for consideration goes to the compatibility of the system with Article 14, not only to the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation (see British Gurkha Welfare Society and Others [HUDOC], … § 63). It is therefore appropriate to look at the system as a whole.”
First claimant – disability
As to the first claimant, with a disabled daughter, it had been acknowledged that any move to new accommodation would be extremely disruptive and highly undesirable for the first claimant, but “it would not be in fundamental opposition to the recognised needs of disabled persons in specially adapted accommodation but without a medical need for an ‘extra’ bedroom to move into smaller, appropriately adapted accommodation.”
The government had provided for DHP payments, which had significant disadvantages but also some advantages. Awards of DHP were subject to certain safeguards, including the requirement on local authorities to take their decisions in light of the Human Rights Act, which in the court’s understanding would prevent local authorities from refusing to award DHP where that could mean the claimant’s need for appropriately adapted accommodation was not met (para 101-102).
The court held that this DHP provision with attendant safeguards, amounted to a sufficiently weighty reason to satisfy the court that the means employed to implement the measure had a reasonable relationship of proportionality to its legitimate aim. Accordingly, in the case of the first claimant the difference in treatment was justified.
Second claimant – gender and domestic violence
In the case of the second claimant, the legitimate aim – to incentivise those with ‘extra’ bedrooms to leave their homes for smaller ones – was in conflict with the aim of Sanctuary Schemes which was to enable those at serious risk of domestic violence to remain in their own homes safely, should they wish to do so. The UK government had not provided any weighty reasons to justify the prioritisation of the aim of the Housing Benefit scheme over that of enabling victims of domestic violence covered by Sanctuary Schemes to remain in their own homes safely. In that context, and because the DHP payments were part of a Housing Benefit scheme aimed at incentivising residents to leave their homes, the DHP payments could not render proportionate the relationship between the means employed and the aim sought to be realised (para 103-104).
Accordingly, the imposition of the rent reduction “on this small and easily identifiable group” had not been justified (para 105).
My comment
The ECtHR’s approach of requiring “very weighty reasons” for justification (apart from transitional measures to correct historic inequalities) was – at least for UK courts – clarified by the Supreme Court in R (SC) v Secretary of State for Work and Pensions, 2021. This said the fact that gender and disability are “suspect” grounds is an important factor tending to reduce the margin of appreciation. However any other factors must also be taken into account, and whether there are “very weighty reasons” is not a binary test.
In holding that the alleged disability discrimination was justified in this case, the court put the onus on Discretionary Housing Payments to remedy injustices. This was despite the “significant disadvantages” of DHP payments, for example that their duration is uncertain and that they are payable from a capped fund. The complaint in this case seems to have been that the regulations themselves were unlawful. Perhaps the result would have been different if the disability complaint had been against a refusal to grant a Discretionary Housing Payment?
The court’s decision (at para 102) did assume that local authorities would be legally prevented from refusing to award DHP where that could mean the claimant’s need for appropriately adapted accommodation was not met. This assumption was based on the Human Rights Act 1998 and (to my mind less cogently) the Public Sector Equality Duty. I understand the assumption does not reflect the experience of those involved in claiming in DHPs.
External links
- European Court of Human Rights rules against United Kingdom in ‘Bedroom Tax’ case (matrixlaw.co.uk), 24th October 2019.
- Alex Ewing: “Bedroom tax” unlawful – Strasbourg Court (ukhumanrightsblog.com), November 2019.
