ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION, DIVISIONAL COURT
LORD JUSTICE LAWS AND MR JUSTICE CRANSTON
CO24832013&CO2488201 & CO248224832488248624
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE RYDER
| THE QUEEN ON THE APPLICATION OF MA & OTHERS
|- and -
|THE SECRETARY OF STATE FOR WORK AND PENSIONS
|EQUALITY AND HUMAN RIGHTS COMMISSION
Tim Eicke QC and Edward Brown (instructed by Treasury Solicitors) for the Respondent
Helen Mountfield QC (instructed by Equality and Human Rights Commission) for the Intervener
Hearing dates: 20, 21 & 23 January 2014
Crown Copyright ©
Master of the Rolls:
"The enjoyment of the rights and freedoms set forth in this 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."
The Social Security Statutes
"(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home;
(b) there is an appropriate maximum housing benefit in his case."
"(2) Regulations may prescribe the manner in which the appropriate maximum housing benefit is to be determined.
(5) The regulations may, for the purpose of determining the appropriate maximum housing benefit, provide for the amount of the liability mentioned in section 130(1)(a) above to be taken to be an amount other than the actual amount of that liability...
(6) The regulations may, for that purpose, make provision for determining the amount of liability under section 130(1)(a) above which a person is treated as having by virtue of regulations under section 137(2)(j) below..."
"The Secretary of State may by regulations make provision conferring a power on relevant authorities to make payments by way of financial assistance ("discretionary housing payments") to persons who—
(a) are entitled to housing benefit or council tax benefit, or to both; and
(b) appear to such an authority to require some further financial assistance (in addition to the benefit or benefits to which they are entitled) in order to meet housing costs."
"11(1) Subject to the following provisions of this regulation, housing benefit shall be payable in respect of the payments specified in regulation 12(1) (rent) and a claimant's maximum housing benefit shall be calculated under Part 8 (amount of benefit) by reference to the amount of his eligible rent determined in accordance with –
(a) regulation 12B (eligible rent)..."
"(1) The maximum rent (social sector) is determined in accordance with paragraphs (2) to (4).
(2) The relevant authority must determine a limited rent by—
(a) determining the amount that the claimant's eligible rent would be in accordance with regulation 12B(2)...;
(b) where the number of bedrooms in the dwelling exceeds the number of bedrooms to which the claimant is entitled in accordance with paragraph (5), reducing that amount by the appropriate percentage set out in paragraph (3);...
(3) The appropriate percentage is—
(a) 14% where the number of bedrooms in the dwelling exceeds by one the number of bedrooms to which the claimant is entitled; and
(b) 25% where the number of bedrooms in the dwelling exceeds by two or more the number of bedrooms to which the claimant is entitled.
(4) Where it appears to the relevant authority that in the particular circumstances of any case the limited rent is greater than it is reasonable to meet by way of housing benefit, the maximum rent (social sector) shall be such lesser sum as appears to that authority to be an appropriate rent in that particular case.
(5) The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant's dwelling as their home (and each person shall come within the first category only which is applicable)—
(a) a couple (within the meaning of Part 7 of the Act);
(b) a person who is not a child;
(ba) a child who cannot share a bedroom;
(c) two children of the same sex;
(d) two children who are less than 10 years old;
(e) a child..."
The Equality Act 2010
"(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low."
Section 149(7) shows that disability is one of the protected characteristics.
"(1) ... [A] relevant authority may make payments by way of financial assistance ("discretionary housing payments") to persons who –
(a) are entitled to housing benefit; and
(b) appear to such an authority to require some further financial assistance (in addition to the benefit to which they are entitled) in order to meet housing costs."
Evolution of the Policy
"it is time for a fundamental shift of power from Westminster to people. We will promote decentralisation and democratic engagement, and will end the era of top-down government by giving new powers to local councils, communities, neighbourhoods and individuals."
"The Government will introduce a package of reforms to Housing Benefit from April 2011 onwards. This includes changing the percentile of market rents used to calculate Local Housing Allowance rates, and uprating these rates by CPI from 2013-14, capping the maximum Local Housing Allowance payable for each property size, time-limiting the receipt of full Housing Benefit for claimants who can be expected to look for work, and restricting Housing Benefit for claimants in the social rented sector who are occupying a larger property than their household size warrants."
"There is a strong case for exempting disabled claimants where significant adaptations have been made to their properties. However, any exemption criteria would need to be affordable, well-targeted and workable within Universal Credit. An alternative to an exemption would be to increase DHP funding to enable local authorities to accurately target support where it is most needed."
"would enable local authorities to make decisions at a local level about which cases should be prioritised for financial help to meet any shortfall caused by this measure. It would also better protect the taxpayer by offering a limited funding pot rather than an exemption of which the potential scale would be quite uncertain."
"A DHP approach is likely to attract criticism for lacking the certainty (and therefore 'peace of mind' for potentially vulnerable claimants) that only an exemption would appear to be able to offer in these cases. Whilst DHP decisions are made at a local level, which should lead to a better-targeted approach to applications based on an understanding of local circumstances (such as housing supply) this approach may produce inconsistencies in the way individual cases are treated across different parts of the country."
"DHPs provide a targeted means of mitigating the impact of this measure from a limited funding pot. It is also in line with a localised approach which will allow local authorities to take into account the circumstances of individual households."
More detail was given in the Annex to the submission of 29 September 2011. Thus:
"18. Although the discretionary nature of DHPs can run the risk of uncertainty for individuals, it does have a number of advantages:
o It would enable [local authorities] to provide additional help to claimants based upon a local-level decision about need.
o It would deliver mitigation in a targeted way that ensures limited funds are not wasted on cases where the shortfall can be met by the individual...
o It fits with the localism agenda…..
o We will also allocate this money to local authorities in a way that broadly reflects need in relation to the impact of this measure."
"We will monitor demand for DHPs in relation to this measure and how they are being used by local authorities"
"54. There are many reasons, as well as those mentioned in paragraph 52, why it may not be appropriate for someone with a disability to either move house or make up any shortfall in rent themselves. A good example of this may be an individual or family who rely heavily on a local support network. In circumstances such as these it may be appropriate to use the DHP fund to make up the shortfall in their rent."
After describing various means by which affected persons might be able to make up the shortfall caused by the reduction in their HB, the circular states:
"67. For those claimants who cannot cover a reduction in [HB] from their own resources and who have a compelling case for remaining in their current accommodation, there is the DHP fund … "
"We looked at whether we could simply exclude any house that had had any adaptation done to it. It quickly became apparent that there is a spectrum of adaptations…..Trying to define in legislation that this or that type of adaptation was or was not exempt is very complex. Rather than have a blanket exemption for a ramp or a stair rail, we have allocated money to local authorities which broadly matches what we think would be the cost of protecting people in the circumstances that the Hon Gentleman has described…."
"We have allocated money to local authorities to reflect the two key grounds that came up in debates in this House, but we have not ring-fenced the money. That is the important point. We have indicated the two groups who clearly have a strong case for discretionary support. But the key word is 'discretionary'. Therefore a local authority will be able to take the discretionary payments for the social housing under-occupation, the discretionary payments for the private sector rent 30% rule and the discretionary payments associated with the benefit cap. All those things will come together and will be a discretionary pot for a local authority to tailor to their local and individual needs. We recognise that every constituency is different, which is why we are giving local authorities, such as his, the flexibility to use that money to meet individual local circumstances. "
"The court has so far considered that the right under article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when states treat differently persons in analogous situation 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."
"…the essential question for the court is whether the alleged discrimination that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to that question will be plain. There may be such an obvious relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact"
"A difference of 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 standard of review
"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. As in the AM (Somalia) case, therefore, the proportionality review applicable in the present case must be made by reference to the usual standard, not an enhanced one."
"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'."
"The fact that there are grounds for criticising or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable."
"It seems clear from Stec , however, that the normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the "manifestly without reasonable foundation" test in the context of state benefits. The same principles were applied to the sex discrimination involved in denying widow's pensions to men in Runkee v United Kingdom  2 FCR 178, para 36. If they apply to the direct sex discrimination involved in the Stec and Runkee cases, they must, as the Court of Appeal observed, at para 50, apply a fortiori to the indirect sex discrimination with which we are concerned. "
"It is, of course, now well settled that the best guide as to whether the courts should deal with the issue is whether it lies within the field of social or economic policy on the one hand or of the constitutional responsibility which resides especially with them on the other: see, for example, R (ProLife Alliance) v British Broadcasting Corpn  1 AC 185, para 136, per Lord Walker of Gestingthorpe. The fact that the issue is a political issue too adds weight to the argument that, because it lies in the area of social policy, it is best left to the judgment of the legislature. But the reason why I differ from the Court of Appeal's approach is that it lies in the latter area as well. Cases about discrimination in an area of social policy, which is what this case is, will always be appropriate for judicial scrutiny. The constitutional responsibility in this area of our law resides with the courts. The more contentious the issue is, the greater the risk is that some people will be discriminated against in ways that engage their Convention rights. It is for the courts to see that this does not happen. It is with them that the ultimate safeguard against discrimination rests."
"46. Secondly, it is clear on the evidence that Mr Burnip's objectively verifiable need was for a flat with two bedrooms, and that the maximum LHA available to him on the one bedroom basis left a substantial shortfall from the rent which he had to pay to his landlord. Discretionary housing payments were in principle available as a possible way of bridging this gap, but they cannot in my judgment be regarded as a complete or satisfactory answer to the problem. This follows from the cumulative effect of a number of separate factors. The payments were purely discretionary in nature; their duration was unpredictable; they were payable from a capped fund; and their amount, if they were paid at all, could not be relied upon to cover even the difference between the one and two bedroom rates of [local housing allowances], and still less the full amount of the shortfall. To recognise these shortcomings is not in any way to belittle the valuable assistance that discretionary housing payments are able to provide, but is merely to make the point that, taken by themselves, they cannot come anywhere near providing an adequate justification for the discrimination in cases of the present type.
47 A further aspect of the problem is that housing, by its very nature, is likely to be a long term commitment. This is particularly so in the case of a severely disabled person, because of the difficulty in finding suitable accommodation and the probable need for substantial physical alterations to be made to the property in order to adapt it to the person's needs. Before undertaking such a commitment, therefore, a disabled person needs to have a reasonable degree of assurance that he will be able to pay the rent for the foreseeable future, and that he will not be left at the mercy of short term fluctuations in the amount of his housing-related benefits. For the reasons which I have given, discretionary housing payments cannot in practice provide a disabled person with that kind of assurance."
"without the benefit of the extra room rate, Mr Burnip would be left in a worse position than an able-bodied person living alone: it is only to correct such disparity of treatment that the claim is brought."
"Furthermore, there are in my judgment important differences between the circumstances of the present appeals and the position in AM (Somalia) v Entry Clearance Officer  UKHRR 1073. First, these are not cases of immigration control, where, as Elias LJ noted, the courts are particularly reluctant to interfere in matters of policy. On the contrary, we are here concerned with a benefit (HB) the purpose of which is to help people to meet their basic human need for accommodation of an acceptable standard. Secondly, there is no question of a general exception from the normal bedroom test for disabled people of all kinds. The exception is sought for only a very limited category of claimants, namely those whose disability is so severe that an extra bedroom is needed for a carer to sleep in (or, in cases like that of Mr Gorry, where separate bedrooms are needed for children who, in the absence of disability, could reasonably be expected to share a single room). Thirdly, such cases are by their very nature likely to be relatively few in number, easy to recognise, not open to abuse, and unlikely to undergo change or need regular monitoring. The cost and human resource implications of accommodating them should therefore be modest, quite apart from the point that in some cases the effect of refusing the claim could well be to force the claimant into full time residential care at much greater expense to the public purse. Fourth, for the reasons which I have already given, the extra assistance which can be provided by discretionary housing payments, valuable though it can be, falls far short of being an adequate solution to the problem. Finally, the fact that Parliament has now seen fit to legislate for cases like those of Mr Burnip and Ms Trengove, and to do so at a time of general economic hardship, may in my view reasonably be taken as recognising both the justice of such claims and the proportionate cost and nature of the remedy."
Has justification been made out?
The Secretary of State's case
"87. Using the definition of disability contained in the Equalities Act 2010 a disproportionate number of households including an adult with a Disability Discrimination Act (DDA) recognised disability are likely to be affected by the introduction of the size criteria to social sector tenants (420,000) as opposed to non-disabled tenants (250,000). However this is based upon the claimant or partner reporting a DDA recognised disability and includes cases who do not currently have difficulties with daily activities but who have in the past or are expected to in the future or would do if they were not able to control symptoms with medication.
88. If disability was based upon the receipt of a Disability Living Allowance this figure would be much lower (180,000). To provide a blanket exemption for disabled adults in receipt of Disability Living Allowance from the size criteria rules in the social sector only would cost around £130 million. This estimate was modelled using the PSM FRS 90/10.
89. Options for broader exemptions for disabled people were considered but rejected as unacceptable. Providing a blanket exemption to disabled people using a broad definition would have been too expensive and would not have targeted help at those who need it most. It would also potentially mean that disabled people with no specific needs received a greater contribution for no reason. Applying a tighter definition would have resulted in an administratively intensive and costly process involving outside agencies as well as local authority staff. This is because of the difficulties in identifying the minority of HB claimants who are unable to share a bedroom due to the nature and extent of their disabilities. The costs of this approach were considered to be disproportionate as we think it unlikely that the vast majority of disabled people do not require a spare bedroom.
90. Also, the impact of the reforms on disabled people is not uniform. Whereas some will be significantly affected by the measures, others will not suffer any more than able-bodied people. In addition the nature of a person's disability may change and will fluctuate regularly (or over a longer-period), which means that even if they are unable to share currently, that position may change. Similarly, the condition of someone who is currently able to share may deteriorate so that they may no longer do so. As such, this would require ongoing monitoring, which would increase administrative time and costs significantly.
91. Any general exemption for disabled people would have to apply in the private sector and Universal Credit. It would not be feasible completely to exempt disabled claimants in general from the size criteria in the private sector as the criteria also controls the rent levels set by landlords to ensure it is reasonable.
92. Further the impact of the reforms on disabled people is not uniform. Some will be significantly affected by the measures; others will not suffer any more than able-bodied people. In addition the nature of a person's disability may change will fluctuate over time (or even weeks) which means that even if they are unable to share currently, that position may change. Similarly, the condition of someone who is currently able to share may deteriorate so that they may no longer do so."
The claimants' response
"Where because of their disability or that of a member of their family or household, a person has a need to occupy accommodation where the number of bedrooms exceeds the number of which they would otherwise be entitled under Regulation B13(5), (6) and (7), then they shall be entitled to such additional bedroom or bedrooms as are necessary to meet that need".
"A need of a kind described in B13(7A) shall only be found to exist where:
(i) the disabled person in question is entitled to the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the Act; and
(ii) the person provides the relevant authority with such certificates, documents, information or evidence as are sufficient to satisfy the authority of that need."
Conclusion on the justification issue
The case of Mrs Carmichael
"99. There are differences between disabled couples and disabled children. Couples are expected to share a bedroom. Further, adults are able to exercise choice in all aspects of their lives. They are able to enter living arrangements knowing that they may have to compromise to accommodate their needs. As well as making applications for benefits and DHPs, they are also able to negotiate with landlords and [local authorities], take proactive steps to find more suitable accommodation of the right size, take in a lodger, find work or increase hours of work. Children do not have this level of independence or control over decision-making. As a result the Government has recognised that children require some level of additional protection.
100. The risks of children sharing a room are different from that of an adult in that children cannot reasonably be expected to know when they are a danger to another child, when they are likely to be a danger to themselves, or when they are likely to impact the long-term sleep patterns of another child.
101. The Government has scarce resources in this current climate and therefore funding has been targeted at children as the Government believes that they are a priority and because young people aged 16 or over are allocated to their own room, numbers are restricted. This policy supports wider Government strategy on the rights of the child, supports family life and helps make families make the best choices for the welfare and development of all the children in their care. In addition, it acknowledges that there is an implicit vulnerability in childhood."
Overall conclusion on the justification issue
Public Sector Equality Duty
"(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence  1 WLR 3213;  EWCA Civ 1293 at , equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.
(2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department  EWHC 199 (QB) (Stanley Burnton J (as he then was)).
(3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health  EWCA Civ 154 at [26 – 27] per Sedley LJ.
(4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing  EWHC 2062 (Admin) at [23 – 24].
(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin), as follows:
i) The public authority decision maker must be aware of the duty to have "due regard" to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be "exercised in substance, with rigour, and with an open mind". It is not a question of "ticking boxes"; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) Is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.
(6) "[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria." (per Davis J (as he then was) in R (Meany) v Harlow DC EWHC 559 (Admin) at , approved in this court in R (Bailey) v Brent LBC  EWCA Civ 1586 at [74–75].)
(7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be "rigorous in both enquiring and reporting to them": R (Domb) v Hammersmith & Fulham LBC  EWCA Civ 941 at  per Sedley LJ.
(8) Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin) (Divisional Court) as follows:
(i) At paragraphs [77–78]
" Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para ) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.
 The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making."
(ii) At paragraphs [89–90]
" It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para ):
'….the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.'
 I respectfully agree….""
Breach of the PSED
The claimants' case
Conclusion on PSED
Lord Justice Longmore:
i) the memorandum to the Minister of Welfare Reform of 20th August 2010 recognising that there would be social sector tenants who cannot be found alternative accommodation of the right size including those caring full time for a disabled person;
ii) the memorandum of 21st January 2011 considering exemptions for those who cannot work and recommending the use of discretionary housing payments ("DHPs");
iii) the memorandum of 12th August 2011 recognising, in the light of representations made, that there was a case for exempting homes that had had significant adaptation for disability and analysing alternative forms of relief in the form of increasing the sums available for DHPs or granting exemptions based on eligibility for Disabled Band Relief in respect of Council Tax;
iv) the memorandum of 2nd September 2011 recognising that there will be hard cases, apart from those living in homes that had had disability adaptations, and reporting the recommendation of increasing the sums available for DHPs;
v) the memorandum of 29th September 2011 again proposing increases in the sums available for DHPs and explaining the advantages of DHPs, despite the uncertainty for individuals;
vi) the memorandum of 12th January 2012 in response to Lord Best's proposal that the measure should only affect those living in homes with two unneeded bedrooms.
"closely monitor and adjust the implementation of the policy … the ensure that the needs of these groups are effectively addressed in the longer term."
"have due regard to the need to … eliminate discrimination on [and] advance equality of opportunity between persons who show a relevant protected characteristic [such as disability] and persons who do not share it."
The position of the disabled was a vital concern in the minds of policy makers at the Department between the date of the Budget Statement in June 2010 and the making of the Regulations in December 2012 and, for myself, I have little difficulty in accepting that the Department did indeed have due regard to the need to eliminate discrimination since it was consistently addressing the particular position of the disabled in relation to Government policy for reforming housing benefit in relation to claimants who occupied houses larger than warranted by the size of their household. It is not easy to see how a Department implementing that policy can successfully advance "equality of opportunity" for the disabled but the whole point of the policy was that it should apply equally to all people who under-occupied their accommodation and I am unpersuaded by the suggestion that the Department failed in that duty either.
Lord Justice Ryder: