England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/05/2014

ANNEX A ANNEX B

Mr Justice Stuart-Smith:

Introduction

1. The Claimants wish to challenge the lawfulness of the Housing Benefit (Amendment) Regulations 2012 ("the 2012 Regulations"), which were made by the Secretary of State on 3 December 2012, having been laid in draft before Parliament and approved by affirmative resolution of each House.
2. Proceedings were issued on 24 September 2013. This judgment is the result of a rolled up hearing on 14 May 2014. At the hearing the Claimants and the Defendant were represented by Leading and Junior Counsel. The interested party, Pembrokeshire County Council, has taken no part in the proceedings and was not represented at the hearing.
3. For the reasons set out below, I grant permission but dismiss the application.

The Factual Background

The Scheme

4. The 2012 Regulations are part of the Housing Benefit ("HB") scheme which was introduced (and subsequently amended) by the Coalition Government in its attempts to reduce the budget deficit at a time of acute financial stringency. Although colloquially referred to as the "bedroom tax", the scheme operates by reducing the amount of HB payable where rented accommodation in the private or social sector is assessed as being under-occupied. The general nature of the scheme and its specific provisions have recently been described and considered by the Court of Appeal in R (MA and others) v Secretary of State for Work and Pensions and Others [2014] EWCA Civ 13, which is necessary reading for anyone who wishes to understand the political and legislative background to this claim. I gratefully refer to and adopt [1]-[12] and [15]-[36] of the judgment of Lord Dyson MR (with whom Longmore and Rimer LJJ agreed) without setting them out again here. Further details of the evolution of the scheme may be found in the judgment of Laws LJ in the Divisional Court at [2013] EWHC 2213 (QB) at [20]-[34], which should also be taken as read.
5. At this stage it is only necessary to recapitulate that the scheme has two elements. The first is that the 2012 Regulations reduce the eligible rent for the purposes of calculating HB where the number of bedrooms exceeds a number established by reference to the criteria set out in Regulation B13. The second element is the availability of Discretionary Housing Payments ("DHPs") which are available on application to the local authority (in this case Pembrokeshire). As a matter of governmental policy, it was decided that DHPs were a more flexible and preferable means by which to cater for various deserving cases rather than attempting to identify and define in advance all possible exemptions from the Regulations. Two of the categories that were expressly considered when deciding whether to use the mechanism of exemptions or of DHPs were, first, cases where homes had been specifically adapted for the current occupants and, second, cases where a child was disabled and the disability gave rise to a need for additional space. As outlined in the Equality Impact Assessment carried out in November 2010 by the DWP, DHPs were to be available where a person is entitled to HB or Council Tax Benefit and "are intended to make up shortfalls in entitlement to benefit where the local authority considers that the person concerned is in need of further help with their housing needs."
6. The Regulations which introduced an extra bedroom for an overnight carer in the private sector ("the Housing Benefit (Amendment) Regulations 2010"), were referred to the Social Security Advisory Committee, which did not make any recommendations in respect of extending the definition of a person who requires overnight care to cover children. They were also referred to the Work and Pensions' Committee, which recommended that the provision be extended to cover disabled children in a similar position. The Government's response to this recommendation, published in March 2011, was:

"The Government welcomes the Committee's endorsement of the policy to introduce an extra bedroom for non-resident carers. The Government's decision to acknowledge the need for an extra room for these carers within the size criteria for Housing Benefit has to be taken in the context of the tight fiscal climate and the priority this relatively small group has been afforded. It recognises that funding for this particular need has in the past been met through several different sources such as social services and Discretionary Housing Payments. The presence of an overnight carer allows these individuals to live independently and the change simplifies and clarifies the funding arrangements.

Representations made to the Department have mainly concerned people who need help to live on their own. The move away from residential accommodation to independent living has seen an increase in people with more intense care needs requiring this sort of assistance. Where care is required for a child this is more often provided from within the household. Housing Benefit is not designed to meet every individual circumstance and it would be complex to introduce different rules for the situations such as those described by the Committee and to establish a need in each case.

Where the local authority is satisfied that an additional room is necessary as it would be beneficial, that authority can make a Discretionary Housing Payment where they consider there is sufficient justification for additional payments to meet any potential shortfall between Housing Benefit and actual rent payable. Providing certainty that Housing Benefit will, in future, meet the costs of an additional room for a non- resident carer should help free up funds within Discretionary Housing Payment budgets and allow local authorities to use their discretion to meet the costs in the types of circumstances the Committee describes. Housing Benefit already takes account of resident live-in carers where that carer is not part of the claimant's assessment unit. The Government has no plans to extend this measure further."

7. The draft 2012 Regulations were subjected to further Parliamentary scrutiny. In particular, in October 2012 they were considered by the First Delegated Legislation Committee. Mr Stephen Timms MP asked the minister to consider the position of disabled children as follows:

"Disabled children who need a carer must also be permitted to have another room. It is not permitted under the regulations at the moment. Will exemptions cover families with those particular needs?"

The minister's initial reply was:

"… when it comes to the social-rented sector, the size criteria already allow a room for an overnight non-resident carer. The court case that we were talking about was linked case in that there were two disabled children who needed separate rooms. Obviously this is a complex legal issue, but because it is before the courts and we are seeking leave to appeal, I will not go too much further. …"

He then clarified his reply by adding:

"For the avoidance of doubt, I want to clarify this point about the court case, disabled children and so on. The rules about having a spare bedroom for an overnight carer, which is the Burnip case, are specifically about the claimant or a partner, so we are talking about adults. The Gorry case extends the rights to allow disabled children to have their own room, and those issues are under appeal currently, just in case I created any confusion, We already allow a spare bedroom for a carer for a claimant or a partner, just to clarify that point."

8. The DWP's Discretionary Housing Payments Guidance Manual Including Local Authority Good Practice Guide was updated in April 2013 in the light of the changes that were being introduced. At page 25, the Good Practice Guide states:

"Support for disabled people living in significantly adapted accommodation

2.4 The Government has added additional funding to the DHP fund from 2013/14, specifically aimed at supporting disabled people living in significantly adapted accommodation – including any adaptations made for disabled children.

2.5 For claimants living in specially adapted accommodation, it will sometimes be more cost-effective for them to remain in their current accommodation rather than moving them into smaller accommodation which needs to be adapted. We therefore recommend that local authorities identify people who fall into this group and invite a claim for DHPs.

2.6 There is no definition of significantly adapted accommodation. It is up to LAs to decide what constitutes significantly adapted accommodation, based on local knowledge and individual circumstances.

2.7 The allocation of the additional funding for disabled people broadly reflects the impact of this measure and the additional funding needed to support this group. However, due to the discretionary nature of the scheme, LAs should not specifically exclude any group affected by the removal of the spare room subsidy or any other welfare reform. It is important that LAs are flexible in their decision making.

2.8 For example, where there has been no significant adaptation to a property but a member of the household has a long term medical condition that creates difficulties in sharing a bedroom, we recommend that DHPs are also considered in these circumstances "

9. Section 5 of the document provides "Further examples of good practice" under various headings including homelessness and the household's financial circumstances. Under the heading "The household's medical circumstances, health or support needs" is said:

"5.4 You may wish to consider whether the following apply.

Does the household have health or support needs which require them to remain in a particular property?

Does the household have a health problem which means that the choice of housing is restricted either temporarily or permanently?

Does the claimant require an extra room because of a health problem that affects them or a member of their household?

…"

10. Later, under the heading "Considering your DHP Strategy to take account of increased demand", the guidance states:

"6.15 Some groups you may want to assist to stay in their home are, for example:

…

Where the claimant or someone in their household has a disability which requires them to have a larger property than would usually be the case for the size of their household due to, for example, a medical condition that might mean they are unable to share a bedroom."

The Claimants

11. The third Claimant (who I shall refer to as Warren) is now 14. He suffers from profound mental and physical disability caused by a very serious and rare genetic disorder called Potoki-Shaffer Syndrome. He needs round the clock care from at least two people. The first and second Claimants, Mrs and Mr Rutherford, are his maternal grandmother and step-grandfather respectively. Mrs Rutherford has looked after Warren since he was about 5 months old; Mr Rutherford has joined her in this intensely burdensome commitment since he became her husband in late 2010. The intensity of their burden and their commitment is increased by the fact that neither of them is in good health. They need, and receive, considerable help from professional carers who are funded by the Local Authority.
12. In the past Mr and Mrs Rutherford had been provided some respite by Warren being looked after for two nights a week away from home. But he was very unhappy and, in April and May 2012, a full assessment recommended that the respite care arrangements be changed. As a result, Warren now stays at home but respite is provided by carers staying overnight in the Claimants' home twice a week. When staying overnight the carers do not stay awake all night, but are there to provide care at intervals when Warren wakes up. They need a bedroom in which to sleep. Without the help of the carers his grandparents could not cope and he would have to go into a care home; without their staying overnight, the Claimants would have to revert to the unsatisfactory arrangement of Warren going away from home two nights a week, to his considerable distress.
13. The Claimants live in a three bedroom house that has been substantially adapted for Warren's occupation. It is rented from Pembrokeshire Housing Association who allocated it to the Claimants in 2009, the decision being taken by a panel which included Pembrokeshire Housing's Housing Manager and Area Officer, Pembrokeshire County Council's Senior Housing Officers and Occupational Therapists. As Warren has grown his needs have developed and further adaptation is required. A major programme of work has been identified and was ongoing between (at least) April and September 2013, being paid for by a grant from the Welsh Assembly Government. The Claimants have been told that there is no alternative three or two bedroom home in the county that would be suitable for Warren's needs.
14. Until 1 April 2013 the first Claimant received HB which covered the full rent on their home. On and from that date, her HB was reduced by 14% as a result of the application of the bedroom criteria leaving a shortfall against the rent due on the family home.
15. When the first Claimant applied to Pembrokeshire for a DHP to cover the shortfall in HB she was initially refused; but her application was reassessed with the result that on 25 July 2013 she was awarded a DHP to cover the shortfall for the period 1 April 2013 to 6 April 2014. Pembrokeshire did not spend its full DHP allocation from central government for 2013/2014. It has been awarded an increased allocation for 2014/2015. On 4 April 2014 Pembrokeshire awarded a further DHP for the period to 6 April 2015.
16. The Claimants' pre-action protocol letter to Pembrokeshire was sent on 6 August 2013. In its response, dated 27 August 2013, Pembrokeshire expressly recognised its obligations under s. 6(1) Human Rights Act 1998 and pointed out that it had already agreed to make a DHP which had the effect of making good the 14% shortfall that would otherwise have been suffered. It gave the assurance that, if future claims for HB were to be made by the first Claimant, and should there be a similar limiting effect on the Claimants' HB entitlement, Pembrokeshire would consider whether further DHPs were warranted.
17. The net effect of the scheme is that the Claimants have had their rent fully covered throughout (apart from the temporary hiatus to 25 July 2013). 86% is covered by HB, 14% by the DHP. The current DHP covers the shortfall until 6 April 2015. Assuming that the scheme remains, there is no evidence to suggest that Pembrokeshire will refuse to make up the rental shortfall by further DHPs in the future.

The Legal Framework and the Principles to be Applied

18. When these proceedings were issued, Regulation B13 was in the form set out at Annexe A as it had been since 1 April 2013. From 4 December 2013 it was amended to the form set out in Annexe B, which remains in force today. The changes made in December 2013 were:

i) To introduce Regulation B13(5)(ba) to include a child who cannot share a bedroom as an additional criterion entitling a claimant to have an additional bedroom;

ii) To amend Regulation B13(6) and (7) and to introduce Regulation B13(9) which adjusted the definition and categories of those adults whose presence would entitle the Claimant to one or more additional bedrooms.

19. The changes made in December 2013 do not affect the issues arising in the present case. Both before and after December 2013 the effect of the Regulation may be summarised as being that the presence of an adult who requires overnight care may entitle the HB claimant to an additional bedroom but the presence of a child who requires overnight care does not.
20. Regulation 2 of the Discretionary Financial Assistance Regulations 2001 gives a relevant local authority the power to make payments by way of DHPs to persons who are entitled to housing benefit and who appear to the authority to require some further financial assistance in order to meet housing costs. The Regulations make provision for the circumstances in which DHPs may be made, the limit on the amount of DHPs and the period for or in respect of which they may be made. The language of the Regulations is entirely conventional for the creation of a discretionary power.
21. The Claimants have relied heavily upon the May 2012 decision of the Court of Appeal in Burnip and others v Birmingham City Council and Others [2012] EWCA Civ 629. Burnip led directly to the inclusion of Regulation B13(5)(ba) by amendment. It is binding as a matter of precedent upon this court; but it was a fact sensitive decision on a previous scheme. Among the facts that were relevant to the outcome were the following:

i) There were three appeals heard together. In two of them (Burnip and Trengove) the Claimants had disabilities which gave rise to the need for a carer to stay throughout the night; in the third (Gorry) the Claimant had two children aged 10 and 8 who suffered from disabilities which meant that they could not share a bedroom;

ii) In each case the Claimants rented properties in the private sector which was subject to a different statutory scheme from that applying in the social rented sector both before and after 1 April 2013;

iii) The private sector scheme meant that, while neither able-bodied nor disabled persons were provided with a benefit which would amount to a complete subsidy against their rent, the shortfall for disabled persons such as the Claimants was significantly greater because their HB was geared to one room fewer than their objective needs;

iv) Mr Burnip had applied for a DHP. For some of the relevant period no DHP had been awarded to him and for the rest of the period the DHP which had been awarded was insufficient to cover the difference between the one and two bedroom rates of Local Housing Allowance (i.e. the greater shortfall which he suffered because his HB was geared to one room fewer than his objective needs), let alone the full amount of the shortfall from the rent which he actually had to pay. Ms Trengove received DHP from March 2009 onwards which was sufficient to make up the shortfall she would otherwise have suffered; but she received no DHP between October 2008 and March 2009, leaving the whole of the shortfall unrelieved for that period. Mr Gorry received DHPs between December 2008 and January 2009 which provided partial relief against his shortfall, and DHPs between January and April 2009 which covered the shortfall in full; but no payments were made between July and November 2008 and from 2 April 2009 until the end of his tenancy in December 2010. So, in each case, the existence of DHPs had not plugged the greater gap between their HB and their rent that was left by the relevant Regulations resulting in a payment geared to one room fewer than their objective needs.

22. The issues were divided between the judgments of Maurice Kay LJ, who dealt with discrimination, and Henderson J, who dealt with justification. All members of the Court agreed with each of the judgments.
23. Maurice Kay LJ identified the relevant statutory provisions at [3]-[6], recorded that Article 14 of the ECHR taken together with A1P1 of the Convention gave rise to entitlement at [7]-[8], and at [9] said that the real issues were (1) whether there was discrimination on the grounds of disability and (2) whether any such discrimination or difference in treatment was justified. He concluded that "where, as in the present case, a group recognised as being in need of protection against discrimination - the severely disabled – is significantly disadvantaged by the application of ostensibly neutral criteria, discrimination is established, subject to justification"; and that the Claimants in those appeals fell within Article 14, subject to justification: see [13] and [19].
24. Henderson J addressed the issue of justification. He adopted the test stated by the Grand Chamber in Stec v United Kingdom (2005) 43 EHRR 47 at [51-52].cognised as being in need of protectins against r than his objective needs)bsi The following applicable principles emerge:

i) Given the existence of a prima facie case of discrimination pursuant to Article 14, the Secretary of Sate must establish that there was at the material time objective and reasonable justification for the discriminatory effect of the relevant HB criteria under the Regulation as they applied to the particular circumstances of the Appellants: see [26];

ii) A difference of treatment lacks objective and reasonable justification "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": see [27];

iii) A wide margin of appreciation is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. The Court will generally respect the legislature's policy choice unless it is "manifestly without reasonable foundation": see [27].

25. It is not immediately apparent from the judgments of the Court of Appeal how the Secretary of State's case on justification was put beyond saying that "the wider benefits context" provided an objective and reasonable justification and relying on the wide margin of appreciation accorded to the State in relation to general measures of economic and social strategy: see [44] and [56]. However, the core of the Court's reasoning in rejecting the Secretary of State's case is clear and is set out at [45]-[47]. Two features are of prime relevance to the present case, namely the discretionary nature of DHPs and the lack of assurance that they provided.
26. In relation to the discretionary nature of DHPs, Henderson J said at [46]:

"…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 LHA, 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." [Emphasis added]

27. This lack of certainty was identified as being a particular deficiency in the context of HB. At [47] Henderson J said:

"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." [Emphasis added]

28. I respectfully suggest that the evidence available to the Court of Appeal about the private sector scheme in operation and the conspicuous failure to plug the gap by the awarding of DHPs in the case of each of the Appellants (to which I have referred above) is the foundation of the Court of Appeal's reasoning and conclusion as set out in these passages. On the facts of each case it was palpable that the gap was not plugged by DHPs, so that as a matter of fact they could not be relied upon as justification for the discrimination in cases of the type before the Court of Appeal; and the evidence before the Court of Appeal led inevitably to the conclusion that DHPs could not be relied upon to provide persons in the position of the Appellants with a reasonable degree of assurance that they would be able to pay the rent for the foreseeable future. That said, the Court of Appeal did not rule that a system which would provide a reasonable degree of assurance that the rent could be paid for the foreseeable future could not be an adequate justification for the identified prima facie discrimination and, to my mind, the language of [46]-[47] clearly contemplates that it could. It would be at least surprising if a system which, taken as a whole, plugged the identified discriminatory gap without significant residual detriment should be regarded as unjustifiably discriminatory and unlawful.
29. The limitations of Burnip were set out by Lord Dyson MR in MA at [64]. Apart from the fact that Burnip was concerned with a different scheme, "the DHP scheme has changed to some extent. Further guidance has been issued to the local authorities that administer it. The DHP is now better resourced. … there is the further point that the Regulations that were being considered in Burnip were not made under the shadow of the financial crisis and the need to reduce public spending which the Coalition Government was elected in 2010 to bring about." It was these changes that enabled the Court of Appeal to describe the present scheme in the following terms at [3]:

"Regulation B13 applies the bedroom criteria to public sector tenants so as to determine the number of bedrooms the claimant's household is deemed to need for the purpose of determining the appropriate maximum HB. Having applied the bedroom criteria, the decision-maker then applies specific additional criteria to certain categories of persons ("the additional categories"). Once an applicant's deemed need has been assessed, the overall scheme then provides for an inquiry into any further case-specific actual need, which is carried out by the local authority decision-maker on receipt of an application for additional assistance. This is done by a consideration of individual circumstances in order to determine whether to make additional contributions by way of Discretionary Housing Payments ("DHPs"). This is the scheme provided for by the Discretionary Financial Assistance Regulations 2001 ("the DFA Regulations")."

30. The challenge in MA was wide-ranging, but a central feature of the challenge was that the new measures "are unlawfully discriminatory because they fail to provide for the needs of people in [the position of the Claimants]" who were said to "represent a range of individuals who are typical of those who are adversely affected by these changes for reasons relating to disability in a way that violates their Article 14 rights." As summarised in the Annex to the Court of Appeal's decision, the Claimants included some whose circumstances were similar to the facts of the present case:

i) Mrs Carmichael had disabilities that meant that she could not share a bed with her husband, and there was no room for a second bed in one room. She therefore had an objectively ascertainable need for a second bedroom. She lived in a two-bedroom flat but had been assessed under the sizing criteria as entitled to one bedroom only. The couple had been awarded a 6-month DHP which covered the shortfall between their HB and the rent;

ii) JD lived with her disabled 26-year-old daughter, AD, in a specially adapted three-bedroom property where they had lived since 1993. The adaptations had been made with input from the family, an occupational therapist and a property development team. AD's twin brother had previously lived in the property but had now moved out. JD was assessed as qualifying under the Regulation for a two-bedroom property. She had been awarded a six-month DHP until the end of September 2013, but had been informed that the DHP was unlikely to be renewed thereafter.

31. The Court of Appeal in MA addressed the relevant principles again, at least in part because of the Court's need to explain in the later case why it was reaching a different conclusion from that which had been reached in Burnip. As a result of the reviews of principle in Burnip and MA, certain propositions and principles are now well established:

i) The scheme, including the 2012 Regulations and the provision for DHPs, should be considered as a whole: see MA at [40];

ii) It is for the Secretary of State to justify the different treatment under Regulation B13 afforded to Claimants where an adult living as part of the family requires the assistance of an overnight non-residential carer as opposed to where the person requiring the assistance of an overnight non-residential carer is a child: see MA at [48];

iii) The Secretary of State's justification will be rejected if, after careful scrutiny, it is found to be "manifestly without reasonable foundation." The Secretary of State has a wide margin of appreciation in matters of economic or social policy, including the distribution of state benefits: see Burnip at [27] and MA at [49]-[56];

iv) A difference of treatment lacks objective and reasonable justification "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": see Burnip at [27];

v) The fact that the Regulations were approved by affirmative resolution in both Houses of Parliament must be firmly borne in mind and calls for considerable caution before the Courts will hold them to be unlawful. As was noted by Lord Dyson MR "the effect of the 2012 Regulations (as amended) in conjunction with the DHP scheme on the position of disabled persons was well understood by Parliament.": see MA at [57];

vi) It is not sufficient for the Claimants to "expose some flaws in the scheme" or to contend that the justification is "not particularly convincing". The Court must be satisfied that there is a "serious flaw in the scheme which produces an unreasonable discriminatory effect.": see MA at [80].

32. Applying those principles to the facts before it, the Court of Appeal upheld the Divisional Court's rejection of the Claimants' challenge. Its reasons for doing so are instructive for the present case:

i) It concluded that Regulation B13 discriminates against disabled persons on the grounds of disability for reasons that are similar or identical to the reasons applied by the Court of Appeal in Burnip: see [47];

ii) It rejected the suggestion that Burnip was determinative of the issue, for the reasons summarised at [29] above: see [64];

iii) It distinguished Burnip on three aspects of the facts. First, it could not be said that the category of persons it was sought to exclude from the bedroom criteria was "very limited" as had been the case in Burnip. Second, the cases within the category were not likely to be very few in number, easy to recognise, not open to abuse and in no need of monitoring. Third, the DHP fund had since been increased and the Court of Appeal in Burnip was apparently unaware of the repeated statements by the Department that the fund would be kept under review and topped up if necessary; or of the fact that the fund had been increased in size and the DHP Guidance altered: see [71]-[72];

iv) It accepted the evidence of Ms Walsh, the lead official on Housing Benefit policy, that an attempt to define the categories of persons to be excluded would either have to be imprecisely drawn or would involve administratively intensive and costly process to implement: see [73];

v) It accepted the evidence of Ms Walsh that the needs of disabled persons may change and that DHPs provided increased flexibility: see [74];

vi) It took into account the point that DHPs are administered by local authorities who are accountable locally for the money they spend, which imposes a greater level of financial discipline than that applicable in relation to HB: see [75].

33. It is noteworthy that the Court of Appeal accepted that the Regulation could be drafted in such a way as to identify the class of disabled people who it was alleged should be excluded: see [73]. Furthermore, Mr Drabble QC was correct to submit in the present case that Mrs Carmichael was in a small and easily identifiable group who plainly needed an additional bedroom. Even so, all of the claims were dismissed by the Divisional Court and the Court of Appeal. The Court of Appeal accepted the evidence of Ms Walsh and the submissions of the Secretary of State that the different treatment of disabled children who cannot share a bedroom (whose position had been changed by amendment of the Regulation following Burnip) and disabled adults such as Mrs Carmichael (whose position remained unchanged under the Regulation) was rational.
34. Lord Dyson MR gave separate consideration to Mrs Carmichael's case. He referred to the policy and administrative reasons evidenced by Ms Walsh as justification for the scheme. Although Mr Drabble QC (then acting for Mrs Carmichael) had submitted that the payment of DHPs was no answer to the basic complaint of discrimination, Lord Dyson MR did not expressly address the point in his separate consideration of Mrs Carmichael's case.
35. In providing his overall conclusion on the justification issue at [80]-[82], Lord Dyson MR emphasised three points:

i) First, the "manifestly without reasonable foundation" test is a stringent test which "requires the court to be satisfied that there is a serious flaw in the scheme which produces an unreasonable discriminatory effect." This point implies that a scheme which, viewed overall, eliminates or ameliorates the identified prima facie discrimination to the extent that there is no substantial residual detriment will not be struck down by the Court;

ii) Second, "the need for the Court to be cautious about finding unlawful discrimination of a statutory instrument passed by affirmative resolution of Parliament is heightened by the fact that some of the principal complaints that are made by the claimants were expressly raised and discussed during the Parliamentary debates and rejected.";

iii) Third, the Secretary of State had explained in detail his reasons for structuring the scheme in the way that he had, which included that "central to his thinking is the idea that there are certain groups of persons whose needs for assistance with payment of their rent are better dealt with by DHPs than HB."

36. There is limited scope for this Court to contribute anything in addition to the authoritative statements of principle that have been provided by the Court of Appeal in Burnip and MA. Three points were, however, the subject of argument.
37. First, there is an apparent tension between the requirement that prima facie unlawful discrimination arising under the Regulation requires to be justified and the relevant question being formulated as "whether the scheme as a whole discriminates against disabled persons". The parties are agreed that there is a two stage process to be carried out, the first stage being to identify whether the Regulation is discriminatory and the second stage being to see whether the identified discrimination is justified. That is the approach taken in the present context by the Court of Appeal and in other areas by the highest courts, and I respectfully both follow and agree with it. However, the mere fact that one part of a scheme, viewed and applied in isolation, would have a discriminatory effect should be of relatively limited interest if, as a matter of fact, that part of the scheme will not be applied in isolation and other parts of the scheme render the identified discriminatory effect either negligible or non-existent. It is, or should be, axiomatic that the law is concerned with substantial rather than theoretical breaches of Convention rights. It follows that if, looking at the scheme as a whole, there is no substantial detriment, the scheme should be upheld.
38. The second issue to be debated was the extent to which the Court should be cautious about finding unlawful discrimination of a statutory instrument passed by affirmative resolution of Parliament. The Secretary of State referred to the well-known observation of Lord Bingham in R (Countryside Alliance) v AG [2008] AC 719 at [45] that:

"the democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament."

39. By way of riposte or counterbalance, the Claimants rely upon the speech of Lord Nicholls in Wilson v First County (No 2) [2004] 1 AC 816 at [61]-[67]. At [61]-[62] he said:

"61 The Human Rights Act 1998 requires the court to exercise a new role in respect of primary legislation. This new role is fundamentally different from interpreting and applying legislation. The courts are now required to evaluate the effect of primary legislation in terms of Convention rights and, where appropriate, make a formal declaration of incompatibility. In carrying out this evaluation the court has to compare the effect of the legislation with the Convention right. If the legislation impinges upon a Convention right the court must then compare the policy objective of the legislation with the policy objective which under the Convention may justify a prima facie infringement of the Convention right. When making these two comparisons the court will look primarily at the legislation, but not exclusively so. Convention rights are concerned with practicalities. When identifying the practical effect of an impugned statutory provision the court may need to look outside the statute in order to see the complete picture, as already instanced in the present case regarding the possible availability of a restitutionary remedy. As to the objective of the statute, at one level this will be coincident with its effect. At this level, the object of section 127(3) is to prevent an enforcement order being made when the circumstances specified in that provision apply. But that is not the relevant level for Convention purposes. What is relevant is the underlying social purpose sought to be achieved by the statutory provision. Frequently that purpose will be self-evident, but this will not always be so.

62 The legislation must not only have a legitimate policy objective. It must also satisfy a "proportionality" test. The court must decide whether the means employed by the statute to achieve the policy objective is appropriate and not disproportionate in its adverse effect. This involves a "value judgment" by the court, made by reference to the circumstances prevailing when the issue has to be decided. It is the current effect and impact of the legislation which matter, not the position when the legislation was enacted or came into force. …" [Emphasis added]

40. I do not consider that there is any conflict between these statements of principle: the Court should give careful scrutiny and should give suitable primacy to the legislative role of Parliament, but if careful scrutiny of the complete picture and the practicalities so require, it will make a declaration of incompatibility.
41. The passage from Wilson set out above, and the paragraphs that followed it, touch on the third point that was debated, namely where the intention of Parliament is to be found. Mr Drabble QC for the Claimants gave the technically correct answer that the intention of an enactment is to be found in its language. As Lord Nicholls said in Wilson at [67]:

"… it is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments. The proportionality of legislation is to be judged on that basis. The courts are to have due regard to the legislation as an expression of the will of Parliament."

However, the language of enactments falls to be understood in context. More to the point, where an overall scheme has been put in place, it would be idle to assert that the intention of the scheme as a whole must be divined from the language of one part of it.

The Issue

42. The Claimants allege that the Secretary of State has unlawfully discriminated against them and others in their position. They claim a mandatory order requiring the Secretary of State to make regulations removing the unlawful discrimination of which they complain and a declaration that Regulation B13(5) of the Housing Benefit Regulations 2006 must be read as including a child within the persons entitled to an extra bedroom for an overnight carer.
43. It is common ground that the question for the Court on this application is whether it is "manifestly without reasonable foundation" for Regulation B13(5) of the Housing Benefit Regulations 2006 (as amended) not to make provision for an extra bedroom where a disabled child in a HB claimant's family is a person who requires overnight care from a non-resident carer.^[1]
44. The Secretary of State accepts that Regulation B13, read in isolation and without reference to the DHP scheme, constitutes prima facie discrimination against those with a disability. But the Secretary of State submits that it is necessary to consider the scheme as a whole when considering whether that prima facie discrimination is justified; and that, once that is done, the policy effect of Regulation B13 cannot be said to be "manifestly without reasonable foundation". Taking the question, as posed in MA, namely whether the scheme as a whole discriminates against disabled people, and specifically those in the position of the Claimants, the Secretary of State submits that it does not.

Justification: is Regulation B13 manifestly without reasonable foundation?

45. There are three main components to the Claimants' case on justification. First, they submit that Warren falls within a small and readily definable group and that therefore the case is not caught by the decision or reasoning in MA. Second and for similar reasons, they submit that the present case is indistinguishable from Burnip. Third, they submit that DHPs are not a satisfactory alternative to statutory entitlement under the Regulation because DHPs are discretionary and therefore unreliable.
46. The Secretary of State relies first and foremost upon the endorsement of the scheme by the Court of Appeal in MA and upon its conclusion that the Secretary of State had provided "an objective and reasonable justification" for his decision to provide for the disability-related needs of some disabled persons for additional accommodation by means of the 2012 Regulations (as amended) and the needs of other disabled persons by means of DHPs.^[2]
47. It is technically correct that the question being answered in MA was not the same as the question in the present case. As formulated by the Court of Appeal, the question in MA was whether the different treatment of the need for additional accommodation of disabled and non-disabled persons was justified: see MA at [48]. Here the question posed by the Claimants (as formulated by Mr Drabble QC in the course of oral submissions) is whether the different treatment of able bodied persons with an ascertained need for an additional bedroom and a disabled child with the same ascertained need is justified. However, although the questions are not congruent, one issue that they raise is identical: is the decision to cater for the needs of some disabled persons under the Regulation and others by DHPs justified? Put another way: does the refusal to exclude (some) disabled persons from the regime of B13, and the provision made and to be made by way of access to DHPs, constitute a proportionate approach to the difficulties suffered by such persons in consequence of the HB policy?^[3] That general issue has been answered in the affirmative in MA: see [71]-[74] where the reasons for the conclusion are summarised. It is integral to those reasons, and therefore part of the ratio of the decision, that the use of DHPs may be justified and was justified in the circumstances of that case.
48. MA is binding on this Court. Accordingly, the Claimants' case cannot succeed unless there are valid grounds for distinguishing their claim from the claims being advanced in MA. Burnip too is binding on this court, with the same consequence. The effect of Burnip and MA taken together is that, while a scheme including the use of DHPs as the conduit for payment may be justifiable, it will not be justified if it fails to provide suitable assurance of present and future payment in appropriate circumstances. For my part, I see no conflict of principle between Burnip and MA on this point; and it is apparent that the Court of Appeal in MA also saw none.
49. The Claimants submit that there is no real difference between the case of adults requiring overnight care on the one hand and children on the other; and they point to the fact that disabled adults may qualify for an additional bedroom under the terms of Regulation B13 while similarly disabled children do not. This has two consequences. First, it means that the Claimants' category can be defined as has been done for some adults in Regulation B13(6) and (9). Second, it means that the category is neither too large nor too amorphous to be dealt with in the Regulation. I accept that, to this extent, the Claimants' case shares features with Burnip and is not covered by that part of the reasoning in MA which focussed upon the size of the class and the difficulties of identification.
50. However, the mere fact that the scheme could have been structured differently so as to include a category of persons within the Regulation rather than under the provision of DHPs does not mean that it is unjustified: see [33] above. Even if the adoption of the current structure is regarded as a flaw in the scheme, the question to be answered is whether the flaw is serious and produces an unreasonable discriminatory effect. As emerged clearly during oral submissions, the role of DHPs in the Scheme is critical.
51. DHPs are, by definition, discretionary. The evidence in Burnip led to the conclusion that they could not be relied upon to plug the identified discriminatory gap. That is not the evidence in the present case:

i) First, it is abundantly clear that the intention of the scheme as a whole is that DHPs should be used to plug the gap where, if Regulation B13 were to be viewed and applied in isolation, a person with an ascertained need for an additional bedroom would otherwise be the subject of discrimination on the grounds of disability. This intention does not emerge from the terms of the 2012 Regulations alone; but it emerges clearly from the materials set out in MA at [23]-[35] and at [6]-[10] above. Having considered the risks, advantages and likely criticisms of a DHP approach the Government decided knowingly to restrict the size criteria, to increase the monies for DHPs, and to monitor how the scheme worked in practice with a view to increasing the monies further if necessary;

ii) Second, in the event, it has not yet proved necessary to increase the monies available for the DHP fund. To the contrary, Pembrokeshire underspent in 2013-2014 and returned part of its allocated fund for that year; and it received an increased fund for 2014-2015;

iii) Third, although the awarding of DHPs remained discretionary, the position of disabled people living in specially adapted accommodation (a category which includes Warren and his grandparents) was specifically identified in the Good Practice Guide as being a category for whose support additional funds had been allocated to the DHP fund: see [8] above;

iv) Fourth, the Good Practice Guide also identified households having a health problem which meant that the choice of housing is restricted and claimants requiring an extra room because of a health problem that affects them or a member of their household (both of which include Warren and his grandparents) as groups meriting consideration: see [9] and [10] above;

v) Fifth, the award of DHPs by Pembrokeshire to the Claimants has plugged the gap and continues to do so. They have suffered and suffer no financial detriment as a consequence of being funded in part by the DHP conduit rather than entirely pursuant to the 2012 Regulations.

52. The Claimants submit that, although they cannot point to any financial detriment thus far, they do not have adequate assurance of future payment. In support of this submission they rely upon the undoubted fact that the power of the local authority to award a DHP is not mandatory but discretionary. This appears to me entirely to ignore the practicalities of the situation. Pembrokeshire is obliged to exercise its discretion in accordance with public law principles and Human Rights legislation. It is also as a matter of public law obliged to have regard to the guidance to which I have referred. That being so, no basis has been advanced on which Pembrokeshire could properly have exercised its discretion to deny the full DHPs that it has awarded in this case: the fact that it may have been influenced by media pressure to change its initial decision is nothing to the point.
53. For obvious reasons, any expression of view on my part in this judgment is not binding on Pembrokeshire or generally. However, on the information that is available to me, including Warren's condition, the Claimants' need for overnight carers requiring a bedroom, the fact that the property has been specifically adapted (twice) for Warren's needs, the absence of any alternative suitable accommodation in the county, and the fact that Pembrokeshire has had and should continue to have available sufficient funds, a decision to withhold DHPs would appear to be unjustifiable. As it is, after the initial hiatus, no such decision has been made. Although Pembrokeshire's undertaking to consider whether further DHPs were warranted if the Claimants' HB entitlement were to be similarly limited in future does not amount to a written guarantee, the fact that Pembrokeshire has exercised its discretion in favour of an award for the last two financial years adds weight to the conclusion that it would appear perverse for Pembrokeshire to reach a contrary decision in the future if the scheme and the Claimants' circumstances remain unchanged. As I have said, there is no evidence that Pembrokeshire will refuse to make up the Claimants' shortfall by DHPs.
54. I therefore conclude that there is at present adequate assurance that the Claimants will continue to benefit from awards of DHPs to plug the gap that would otherwise exist. If the scheme or other circumstances were to change materially, different considerations might apply; but they do not apply now.
55. The Secretary of State has submitted evidence from Ms Walsh, as in MA. At [110]-[118] she explains the reasoning that led the Government to exclude adults but not children from the sizing requirements of Regulation B13 as follows:

"110. The regulations which introduced an extra bedroom for a non-resident overnight carer, where the claimant or partner required such care were made as part of a package of changes that were announced as part of the emergency budget in 2010. An Equality impact Assessment was produced in relation to all of these changes, and the impact of the changes on families was discussed.

111. The regulations were referred to the Social Security Advisory Committee ("SSAC") pursuant to section 172 of the Social Security Administration Act 1992. SSAC consulted on the regulations and produced lengthy recommendations in respect of the proposals. The consultation by SSAC produced the largest number of responses that it had received in a consultation exercise for some time. SSAC did not, however, make any recommendations in respect of extending the definition of a person who requires overnight care to cover children.

112. The Work and Pensions Committee also looked at the regulation and recommended that the provision be extended to cover disabled children in a similar position. The Government considered this recommendation and responded to it. In its response it stated:

"[Here Ms Walsh included the passage set out at [6] above.]"

113. For the reasons above the Government made no further changes to the regulations.

114. Dependent children or adult non-dependents who live in the HB claimant's household cannot by definition live independently and as such the cost for non- resident overnight carers in respect of them should not be covered by HB. To allow an additional bedroom for this purpose would currently cost approximately £60 million per annum^[4]. In addition children, whether disabled or not, remain the responsibility of their parents or guardians and in the majority of cases involving children all or most of the care is provided by the parents, which illustrates the need for individualised assessment.

115. The Government has indeed recognised, that there are situations where a claimant or their family may require further financial assistance, and for this reason additional funding was made available via the Discretionary Housing Payments (see paragraph [52] to [54]). The DHP Guide was substantially redrafted from 1^st April 2013 to cover all aspects of welfare reform particularly the impact upon disable people and has recently been updated. "[Here Ms Walsh included the passages set out at [8-10] above and other passages from the Good Practice Guidance.]"

116. It is clear from the above that the Government has also recognised a wide range of circumstances where the DHPs would be appropriate and this includes the present situation. I understand that the first claimant and partner have permanent care of their teenage grandchild who is severely disabled and for whom they receive the highest rate of both the care and mobility components of disability living allowance (currently £138.05 per week) as well as a DHP, which shows that the system that the Government has put in place to mitigate hard cases is working.

117. A non-resident overnight carer stays at the property approximately two nights a week however they do not receive extra HB for this as the grandchild remains the responsibility of his grandparents.

118. There are other circumstances where non-resident carers may provide care to a household member but HB is not paid in respect of this, for example:

Adult non-dependents;

Claimants or joint tenants (or their partners) who do not physically have an extra bedroom to accommodate an overnight carer.

This doesn't prevent that care from being given, it just means that an overnight carer may have to utilise another room in the property

119. In addition where a non-resident overnight carer provides respite care, specifically to allow parents to catch up on sleep, it is assumed that that carer will not require a bedroom as they should be awake looking after the child."

56. It is apparent from the Government's response, to which Ms Walsh referred at [112] of her statement, that the decision to treat adults and children differently was based on three main considerations. First, the funding of accommodation for carers to enable adults to lead an independent life had previously been met through a number of different sources, which would be simplified by providing it through HB. Second, there had been an increase in the provision of overnight care to adults to enable them to live on their own. Children would more often be living within the household of their family and it was felt that it would be complex to introduce different rules for each of the categories of case identified by the Work and Pensions Committee^[5] and to establish a need in each case. Third, the existence of the discretionary pot for DHPs meant that where the local authority is satisfied that an additional room is necessary, it can make a DHP where there is sufficient justification for additional payments to meet any potential shortfall between HB and the actual rent payable.
57. Some aspects of this evidence may be criticised. In particular, the assumption that non-resident carers providing respite care will not require a bedroom is unjustified and, in the Claimants' case, wrong. However, taken either singly or cumulatively in the context of a scheme which MA has held to be structurally reasonable, these reasons cannot be characterised as irrational or manifestly without reasonable foundation. The distinction between adults, who may aspire to live independently on their own, and children, who will generally not, is rational (because of parental responsibility to look after their disabled children, which is not present for adults) and has not been shown to be inaccurate. It provides a logical justification for treating the two groups differently under the Regulation, even if it would have been possible to draft further provisions so that they were treated the same. Furthermore, as the Government recognised from early on, one of the advantages of DHPs is that they provide the flexibility to sweep up and provide in cases where an ascertained need is shown and is attributable to disability.
58. Since the Claimants are not financially disadvantaged by the intended and actual operation of the scheme, to what actual detriment or discrimination does the scheme expose them? Only three possible detriments have been identified:

i) Mr Drabble QC concentrated on the fact that DHPs are by definition discretionary, while the provisions of the Regulation are mandatory. That is correct, but the practical reality is that the purpose of the scheme as a whole is to provide full cover for the Claimants' rent and it is fulfilling that purpose. What is more, for the reasons outlined above, there is an adequate level of assurance that Pembrokeshire will continue to award DHPs to fund the gap, assuming always that the scheme and the Claimants' circumstances do not change;

ii) It is true that Pembrokeshire initially refused the Claimants' application. However, whether or not it was influenced by media publicity, political or legal pressure, it subsequently granted a DHP for 2013/2014 and subsequently for the current financial year. This was in accordance with the intention of the scheme and there is no reason to suppose that it will not do so in the future;

iii) The first and second Claimants found the process of applying for the DHP to be time consuming and stressful, particularly until Pembrokeshire reversed its initial decision. Now that the structure and intention of the scheme is understood, there is no reason for such delays or the needless infliction of undue stress to be repeated.

59. I do not doubt or belittle the evidence of Mr Rutherford that the initial application and subsequent sense of uncertainty caused the Claimants anxiety. However, none of the detriments that have been suggested show "a serious flaw in the scheme which produces an unreasonable discriminatory effect." Much of the anxiety will have been caused by the initial rejection and the uncertainty it engendered. On the information available to me that was an error on the part of Pembrokeshire, which it later recognised and rectified: it was not attributable to a serious flaw in the scheme, which should have been capable of proper operation from the outset.
60. It is common ground that this case falls to be decided on its facts and upon evidence that is relevant to the Claimants' claim: it has not been set up or presented as a "test case" and the evidence for such a case is lacking. The Claimants submitted a report produced by the Papworth Trust in February 2014 on the effectiveness of the general distribution of DHPs. It was based upon survey responses from 222 councils across England and Wales. It provided evidence that councils are wrongly including DLA when looking at household income, that less than 25% of councils could tell whether applicants had a disability or not, that the average duration of DHPs is 5 months, and that 59% of disabled applicants were successful in their application for a DHP, compared with 67% of non-disabled people. This report might have a significant place in a broad-based legal or political discussion, but it does not affect the outcome of the present case: Pembrokeshire does not include the Claimants' DLA when looking at their household income, it knows that Warren is disabled, the Claimants have been successful in their applications, and Pembrokeshire has awarded DHPs for 12 months at a time. The report does not have information of the precision or substance necessary to expose a serious flaw leading to an unreasonable discriminatory effect in the case of people in the position of the Claimants.
61. In the context of a scheme that was introduced to meet a compelling social and political objective at a time of extreme national financial austerity, the need to make an application for a DHP is not a substantial detriment. Bearing in mind the wide margin of appreciation that is available to the Secretary of State, I am not persuaded that the means employed by the scheme to achieve the Government's policy objective was inappropriate or that it was disproportionate in its adverse effect. I therefore reject the Claimants' challenge to the lawfulness of the Regulation.

Discretion

62. Throughout the writing of this judgment I have kept at the forefront of my mind that Warren is grievously disabled and that his grandparents have undertaken a heavy responsibility and burden. The need to make an application for a DHP is an additional burden. However, for the reasons I have given, it is not substantial in an overall scheme of things that includes the policy objectives of the scheme, the circumstances in which the policy and the scheme were introduced, the fact that the Claimants have suffered no financial detriment and the fact that they should not suffer any in the future if the scheme and current circumstances persist.
63. I also bear in mind that the purpose of judicial review is to provide practical remedies for practical problems; and that "when it comes to exercising this discretion I cannot suggest a better test for a court to apply when deciding whether it should give [a remedy] than that it should be 'necessary or desirable to do so in the interests of justice'": see R v Inner London South District Coroner, ex parte Douglas-Williams [1999] 1 All ER 344. If I had been persuaded that the facts of the present case compelled the conclusion that the Regulation was unlawful, I would have taken the view that it was neither necessary nor desirable in the interests of justice to grant a discretionary remedy in circumstances where the scheme seeks to promote a legitimate policy objective and does so without any financial detriment to the Claimants and without imposing any substantial residual discriminatory burden upon them.

Conclusion

64. I am not prepared to say that the Claimants' position was unarguable, though in my judgment it was clearly wrong. I therefore grant permission but refuse the application.
ANNEXE A: REGULATION B13 Version in force from April 1, 2013 to December 3, 2013

B13.— Determination of a maximum rent (social sector)

(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) without applying regulation 12B(4) and (6);

(b) where the number of bedrooms in the dwelling exceeds the number of bedrooms to which the claimant is entitled in accordance with paragraphs (5) to (7), reducing that amount by the appropriate percentage set out in paragraph (3); and

(c) where more than one person is liable to make payments in respect of the dwelling, apportioning the amount determined in accordance with sub-paragraphs (a) and (b) between each such person having regard to all the circumstances, in particular, the number of such persons and the proportion of rent paid by each person.

(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;

(c) two children of the same sex;

(d) two children who are less than 10 years old;

(e) a child.

(6) The claimant is entitled to one additional bedroom in any case where—

(a) the claimant or the claimant's partner is (or each of them is) a person who requires overnight care; or

(b) the claimant or the claimant's partner is (or each of them is) a qualifying parent or carer.

(7) The claimant is entitled to two additional bedrooms where paragraph (6)(a) and (b) both apply.

(8) For the purposes of determining the number of occupiers of the dwelling under paragraph (5), the relevant authority must include any member of the armed forces away on operations who—

(a) is the son, daughter, step-son or step-daughter of the claimant or the claimant's partner;

(b) was the claimant's non-dependant before they became a member of the armed forces away on operations; and

(c) intends to resume occupying the dwelling as their home when they cease to be a member of the armed forces away on operations.

ANNEXE B: REGULATION B13 Version in force from December 4, 2013 (Alterations in italics)

B13.— Determination of a maximum rent (social sector)

(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) without applying regulation 12B(4) and (6);

(b) where the number of bedrooms in the dwelling exceeds the number of bedrooms to which the claimant is entitled in accordance with paragraphs (5) to (7), reducing that amount by the appropriate percentage set out in paragraph (3); and

(c) where more than one person is liable to make payments in respect of the dwelling, apportioning the amount determined in accordance with sub-paragraphs (a) and (b) between each such person having regard to all the circumstances, in particular, the number of such persons and the proportion of rent paid by each person.

(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.

(6) The claimant is entitled to one additional bedroom in any case where—

(a) a relevant person is a person who requires overnight care; or

(b) a relevant person is a qualifying parent or carer.

(7) Where—

(a) more than one sub-paragraph of paragraph (6) applies the claimant is entitled to an additional bedroom for each sub-paragraph that applies;

(b) more than one person falls within a sub-paragraph of paragraph (6) the claimant is entitled to an additional bedroom for each person falling within that sub-paragraph, except that where a person and that person's partner both fall within the same sub-paragraph the claimant is entitled to only one additional bedroom in respect of that person and that person's partner.

(8) For the purposes of determining the number of occupiers of the dwelling under paragraph (5), the relevant authority must include any member of the armed forces away on operations who—

(a) is the son, daughter, step-son or step-daughter of the claimant or the claimant's partner;

(b) was the claimant's non-dependant before they became a member of the armed forces away on operations; and

(c) intends to resume occupying the dwelling as their home when they cease to be a member of the armed forces away on operations.

(9) In this regulation "relevant person" means—

(a) the claimant;

(b) the claimant's partner;

(c) a person ("P") other than the claimant or the claimant's partner who is jointly liable with the claimant or the claimant's partner (or both) to make payments in respect of the dwelling occupied as the claimant's home;

(d) P's partner.

Note 1   See Claimants’ skeleton at [6] and Secretary of State’s skeleton at [4].    [Back]

Note 2   See MA at [82]    [Back]

Note 3   Taken from the judgment of Laws LJ in MA in the Divisional Court at [54]    [Back]

Note 4   This figure would be the cost of allowing for an extra bedroom for all over-night carers whether they were providing waking or sleeping care. The implication is that DHPs may be used at lesser cost to provide for those who can show a need for their carers to have a bedroom.    [Back]

Note 5   “… all disabled children and disabled people who need more space for wheelchair access, a guide dog, essential equipment, or a live in carer, or where a child is unable to share with a sibling due to disability.”    [Back]