ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Judge Howell QC  UKUT 23 (AAC),
Judge Jacobs  UKUT 172 (AAC) and
Judge Turnbull  UKUT 198 (AAC)
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE HOOPER
MR JUSTICE HENDERSON
| IAN BURNIP
|- and -
|(1) BIRMINGHAM CITY COUNCIL
|(2) SECRETARY OF STATE FOR WORK AND PENSIONS
|REBECCA TRENGOVE (AS PERSONAL
|REPRESENTATIVE OF THE ESTATE OF LUCY TRENGOVE
|- and -
|(1) WALSALL METROPOLITAN COUNCIL
|(2) SECRETARY OF STATE FOR WORK AND PENSIONS
|- and -
|(1) WILTSHIRE COUNCIL
|(2) SECRETARY OF STATE FOR WORK AND PENSIONS
EQUALITY AND HUMAN RIGHTS COMMISSION
Mr Richard Drabble QC and Mr Desmond Rutledge (instructed by Birmingham Law Centre) for the Second Appellant
Mr Richard Drabble QC and Mr Tim Buley (instructed by the Child Poverty Action Group)) for the Third Appellant
Mr Tim Eicke QC and Mr Edward Brown (instructed by Department of Work and Pensions) for the Respondent
Ms Helen Mountfield QC for the Intervener
Hearing dates : 21, 22 March 2012
Crown Copyright ©
Lord Justice Maurice Kay :
The basic statutory provisions
"In any other case [ie in private rented accommodation] housing benefit shall take the form of a rent allowance funded and administered by the local authority for the area in which the dwelling is situated … "
This form of HB is calculated by reference to the number of bedrooms which the claimant and his or her family are deemed to need. The Housing Benefit Regulations 2006 are concerned with the number of "occupiers", who are defined by regulation 13 D(12) as:
"the persons whom the relevant authority is satisfied occupy as their home the dwelling to which the claim or award relates except for any joint tenant who is not a member of the claimant's household."
"The claimant shall be entitled to one bedroom for each of the following categories of occupier (and each occupier shall come within the first category only which applies to him) –
(a) a couple (within the meaning of Part 7 of the Act);
(b) a person who is not a child;
(c) two children of the same sex;
(d) two children who are less than 10 years old;
(e) a child."
It follows from these provisions that the overnight carers in the Burnip and Trengove cases did not qualify as "occupiers". The accommodation was not their "home" within the meaning of regulation 13 D(12) because they lived elsewhere and only stayed overnight when working on rota. The Gorry sisters fell within regulation 13 D (3)(c) as "two children of the same sex", for whom one bedroom was the prescribed provision.
"The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"A difference in treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment."
"… a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group."
The submission here is that, whilst the statutory criteria provided for an able-bodied person to be given HB which would be an adequate contribution towards his accommodation needs, they failed to make equivalent provision in relation to the severely disabled, whose needs are more costly. Although neither group was provided with a benefit which would amount to a complete subsidy, the shortfall in relation to those such as the appellants was significantly greater because their HB was geared to one room fewer than their objective needs.
"The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. 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." (Emphasis added)
"The difference between a disabled person such as the [appellant] and a non-disabled person is that the disabled person has a level of need which is greater to enable him to live in a dignified manner in the community. The State's failure to recognise this difference by making adequate provision represents a breach of the Thlimmenos obligation to treat different cases in a different way."
Different treatment only arose on 1 April 2011, and then only in relation to the Burnip and Trengove cases, not the Gorry case.
"The CRPD prohibits discrimination against people with disabilities and promotes the employment of fundamental rights for people with disabilities on an equal basis with others …
The CRPD provides the framework for Member States to address the rights of persons with disabilities. It is a legally binding international treaty that comprehensively clarifies the human rights of persons with disabilities as well as corresponding obligations on state parties. By ratifying a Convention, a state undertakes that wherever possible its laws will conform to the norms and values that the Convention enshrines."
"take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs or practices that constitute discrimination against persons with disabilities."
Article 5(3) provides that:
"in order to promote equality and eliminate discrimination, State Parties shall take all appropriate steps to ensure that reasonable accommodation is provided."
Article 19 provides:
"State Parties … recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full engagement by persons with disabilities of this right and their full inclusion and participation in the community by ensuring that
(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
(b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community and to prevent isolation or segregation from the community;
(c) Community services and facilities are available on an equal basis to persons with disabilities and are responsive to their needs."
These provisions resonate in the present case, even though they do not refer specifically to the provision of a state subsidy such as HB.
"in defining the meaning of terms and notions in the text of the [ECHR], [it] can and must take into account elements of international law other than the [ECHR], the interpretation of such elements by competent organs and the practice of European States reflecting their common values."
There the Grand Chamber was construing Article 11 (freedom of association) by reference to International Labour Organisation Conventions and the European Social Charter. In the context of Article 14, in Opuz v Turkey (2010) 50 EHRR 28, the Court said (at paragraph 185):
"… when considering the definition and scope of discrimination against women, in addition to the more general meaning of discrimination as determined in its case-law … the Court has to have regard to provisions of more specialised legal instruments and the decisions of international legal bodies on the question of violence against women."
These cases do not appear to have been drawn to the attention of Sales J in NM.
Lord Justice Hooper:
Mr Justice Henderson:
"The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is "manifestly without reasonable foundation"."
Housing benefit in context: the social security benefits available to the appellants
(a) Mr Burnip
"… the whole of the disability living allowance is disregarded from the means testing calculation, and after the deduction of smaller allowable amounts from the student loan for books and travel expenses, [Mr Burnip] was left with a reckonable income for housing benefit purposes of £149, exceeding his applicable amount by £12.25."
"If the claimant had been treated as having another non-dependent adult living with him in his flat, his maximum allowable benefit would have increased to the two-room category (c) rate of £126.92, but the advantage from this would have been more than offset by the loss of the £50.35 severe disability premium (which is for severely disabled people living on their own without another such adult: cf. paragraph 14(2)(a)(ii) and (iv) of Schedule 3) and the combined effect would have reduced his weekly housing benefit to £86.23."
With respect to Judge Howell, however, I am satisfied that this is wrong, and Mr Eicke did not seek to argue the contrary. The personal circumstances which entitled Mr Burnip to the severe disability premium (see paragraph … above) would have remained precisely the same, even if he were treated as entitled to a maximum eligible rent on the two-bedroom basis. There is no process of statutory deeming which would require him to be treated for the purposes of the severe disability premium as if he did in fact have another non-dependent adult living with him.
(b) Ms Trengove
"Although I accept that she has benefited from discretionary payments by the Local Authority which have covered the difference between the Housing Benefit allowed and the rent payable, I consider it extremely unlikely that she and her family would have taken the risk of acquiring the responsibilities of a tenant if she could only pay the rent with the help of discretionary sums payable out of a capped fund with eligibility re-assessed every 12 weeks. It seems to me very much more probable that without entitlement by right to assistance with the full rent, [Ms Trengove's] options would be limited to living with her parents or living in residential care. Neither of these options is desired either by [Ms Trengove] or her parents, and I accept that professional agencies involved with her care have also been very keen that she should have an opportunity to live independently."
(c) Mr Gorry
The wider picture
"It is common ground that there is nothing disproportionate in a general rule or policy which makes self-sufficiency a requirement of entry. The first question is whether it is disproportionate not to exclude the disabled. In my judgment, it is not. Unlike the categories of "suspect" grounds to which I referred in paragraph 15, disability is a relative concept. It may be severe or moderate, permanent or temporary. It affects the affluent as well as the indigent. It may or may not affect earning capacity. To some extent, these variables are illustrated by the present case … [he then referred to the evidence] There will be disabled sponsors who are far more and far less disabled then the sponsor in this case. All this convinces me that it is reasonable and proportionate to have a criterion of self-sufficiency without a general exemption for the disabled. It will produce cases of hardship but that in itself does not render it disproportionate, particularly where provision is made for exceptional compassionate circumstances."
"64. Mr Fordham submits that precisely because the number of potential beneficiaries of an exemption from the rule will be relatively small, the additional cost will be limited. The Article 8 rights of the disabled demand that the state supports this group and therefore the failure to make an exception to rule 281(v) is plainly disproportionate.
65. I reject this argument, essentially for the following reasons, which are in large part interrelated. First, this is an area of social policy concerning control of who should be allowed to enter into this country and in what circumstances. As I have noted, the courts are particularly reluctant to interfere in such areas.
66. Second, as Maurice Kay LJ has pointed out, the courts have frequently recognised that "bright line" rules are generally acceptable in such cases notwithstanding that they might produce some hardship.
67. Third, the practical effect of making the exception involves public expenditure. In my judgment the courts will be particularly slow to require special treatment for a group where it affects the distribution of national resources, even if it be the case that the sums will be relatively small.
68. Fourth, and in my view importantly – and this is likely to be true of most indirect discrimination claims of this nature – it is difficult to foresee what other potential claims of a similar kind there may be … This does not merely create a difficulty in foreseeing the potential range of claimants urging special treatment, but it also makes the potential cost very difficult to predict. These uncertainties reinforce the justification for a bright line rule.
69. Fifth, … there would be additional administrative costs in having to identify whether a particular case falls within or outwith the exception – a particular difficulty given that the concept of disability itself is imprecise – and such cases would have to be periodically reviewed. Indeed, administrative burdens will almost inevitably be created once one departs from a bright line rule because of the need to draw the distinctions which a more nuanced rule will create.
70. Sixth, as I have said, this is not a case of direct or planned discrimination …
71. Finally, a factor lending some additional support to this conclusion is the fact that the Secretary of State is empowered in particularly compassionate cases to exercise a discretion in favour of entry …
72. For these reasons, therefore, I am satisfied that the failure to adopt a special rule for those whose spouse in this country cannot work by reason of disability is fully justified. The rule is lawful notwithstanding its discriminatory impact."
"… what is sought is not simply the disapplication of a negative exclusionary rule, but the award of an additional cash benefit outside the rules altogether for which there is in fact no valid "system of reference"."
"48. In such a context, and against the background of what the benefits system already does provide for disabled people in this claimant's situation, the argument that an additional cash allowance has to be created by judicial intervention under Article 14 must in my view be approached with extreme caution; even more caution, if anything, than that displayed by the Court of Appeal in AM (Somalia). The self-evident (and in my judgment self-evidently legitimate) aim of the rule being challenged is to control the cost of housing benefit and ensure that this form of social assistance is paid out only for its purpose of helping providing people with a home, not for accommodation to be used for other purposes. It applies the objective and in my judgment entirely rational criterion that the accommodation allowances therefore depend on the number of occupiers, as defined, that is residents living in the property as their home; not people temporarily there for other purposes however necessary or commendable.
49. The claimant's argument really comes down in my view to saying that because of his special needs as a disabled person he requires a more expensive home for himself, and should be entitled to extra housing benefit to reflect this. He has (or those acting on his behalf have) chosen to pin the claim on the extra room rate for another full-time resident but once one departs from the rules the reality, it seems to me, is that it is the same argument in principle whether quantified in that way or as extra cash towards the increased cost of renting a ground-floor flat with level access, wider doors and other features or adaptations to make it a more suitable home for him.
50. The benefits system is intricate and complicated, and as has been seen contains many detailed provisions that interact and interconnect with one another. Of course in such a massive and complex system there will be apparent anomalies and cases where deserving people, as I am sure this claimant is, will find themselves on the wrong side of some detailed distinction or with amounts they consider unfairly fail to reflect their special needs so that more should as a matter of social justice be done for them. But the evaluation, and if necessary correction, of such matters as the provision of the extra resources for the purposes are questions for the legislature and the executive …
51. The factors of the practical need for a single clearly-defined rule, the existence of the supplementary system of discretionary housing payments to alleviate hard cases (which even if less than perfect did in fact do exactly that for this claimant for the relevant year), and the unknown quantity of other groups who might with equal justice emerge to claim special treatment and extra cash, all support that conclusion in this case at least as much as in AM (Somalia). [Counsel for Mr Burnip] naturally pointed to the introduction of the special extra room allowance for the severely disabled from April 2011 as a de facto acknowledgment that the previous rule was unjustified, but in my judgment that does not at all follow as a matter of law under Article 14. The extra allowance to alleviate the position of comparatively few claimants is of course being introduced at the same time as much more general cuts across the board in which a lot of others will suffer. In my view the effect is merely to underline the point that the making of such changes, the amounts involved and their timing, are matters for legislation, not judicial tinkering with just one setting in one individual piece of the overall machinery."