QUEEN'S BENCH DIVISION
3 Bull Street, Birmingham, B4 6DS
B e f o r e :
| THE QUEEN
(on the application of MICHAEL HARDY)
|- and -
|SANDWELL METROPOLITAN BOROUGH COUNCIL
Richard Clayton QC (instructed by Legal Services, Sandwell MBC) for the Defendant
Christopher Knight (instructed by Leigh Day) for the Intervener
Hearing dates: 31 October, 4 November 2014
Crown Copyright ©
Mr Justice Phillips:
i) that the Council's policy of taking DLA(c) into account as a matter of course in assessing the rate of DHPs to award is contrary to the Department for Work and Pensions' Discretionary Housing Payments Guidance Manual Including Local Authority Good Practice Guide issued in April 2013 ("the DHP Guidance") and an unlawful fetter on the Council's discretion;
ii) that the Council's decision constitutes unlawful discrimination arising from disability contrary to Article 14 of the European Convention on Human Rights (ECHR);
iii) that the Council violated the Public Sector Equality Duty ("the PSED") imposed by section 149 of the Equality Act 2010 ("the 2010 Act"); and failed to make reasonable adjustments to its policy as required by section 29(7) of the 2010 Act.
The factual background
"The DHP calculation has been made to take into account the level of your ongoing income from April 2013, this includes your Income Support, your Incapacity Benefit, Carer's Allowance, your [DLA(c)] and your Wife's [DLA(c)], which totals £311.95 per week. The amount you and your wife receive in respect of [DLA(m)] is excluded from the income assessment for DHP purposes.
Deducted from the income assessment is the expenditure you declared on your DHP application, which totals £295.32 per week, therefore when your expenditure is deducted from the income used in the DHP calculation you have a surplus income of £16.63 per week (£311.95-£295.32).
As you have surplus income of £16.63 per week, this can be used towards your weekly rental shortfall of £23.32 per week, this leaves you may rental shortfall deficit of £6.69 per week and on that basis a DHP award will be given amounting to £6.69 per week to cover that Deficit."
"Although your [DLA(c)] is disregarded as an income for Housing Benefit purposes there is no provision in the DHP Policy to disregard this income so it is included in the assessment of your income when calculating your eligibility for a DHP."
"I have enclosed a copy of the Council's Discretionary Housing Payment policy. Although the Council does not take into account [DLA(m)], and this is not stated in the policy, I can confirm the decision not to include this income has been taken in accordance with Discretionary Financial Assistance Regulations 2001, Part 2 paragraph 1.
In the analysis of this regulation it states that specific provision is made for the mobility component of disability living allowance to be disregarded in the calculation of other benefits. Sections 73 (14) of the [Social Security Contributions and Benefits Act 1992] states:
'A payment to or in receipt of any person which is attributable to his entitlement to the mobility component, and the right to receive such a payment, shall (except in prescribed circumstances and for prescribed purposes) be disregarded in applying any enactment or instrument under which regard is to be had to a persons[sic] means'
The decision by the council to include [DLA(c)] as an income for [DHP] purposes, has been taken on the basis of Turner v London Borough of Barnet Housing Benefit Review Board ... which confirms that [DLA(c)] can be taken into account as an income for DHP purposes. In this case the court was presented with arguments of disability discrimination but did not consider this was in fact taking place.
When calculating the [DHP] entitlement the Council has taken all of your clients [sic] expenditure figures into account and compared this to their income minus [DLA(m)]."
"[DHP] by there [sic] very wording are discretionary in nature. There is nothing in the DWP guidance issued by the DWP or the Discretionary Financial Assistance Regulations 2001 to state that incomes received from Disability Living Allowance (DLA) should not be taken into account for DHP purposes. For [HB] purposes it is accepted that DLA is not taken into account as an income in accordance with HB regulations.
DLA is an income which is available for the individual to spend as they see fit. If your client produced evidence to show that the income was being spent on personal care etc, then this expense will be offset against the income from DLA when working out the available income to contribute towards the rent. In your client's case all of the expenditure ... which your client and his wife have declared has been accepted without further query, due to their disabilities. ... My client has taken into account your clients [sic] living costs as disabled people in his assessment of your clients [sic] income. The claim for disability discrimination and breach of article 14 is accordingly denied….
It is to be noted that following the Burnip decision there has been no amendments to the SSCBA to allow Authorities to disregard [DLA(c)] in their calculations of income. This is despite what you say regarding the Burnip decision having changed the legal landscape in this area."
The legal and policy background
(a) Housing Benefit
"45. First, I think it is necessary to draw a clear distinction between the benefits which Mr Burnip was entitled to claim for his subsistence, and those which he was entitled to claim in respect of his housing needs. His incapacity benefit and disability living allowance were intended to meet (or help to meet) his ordinary living expenses as a severely disabled person. They were not intended to help with his housing needs. This is demonstrated, in my view, not only by the availability of HB and discretionary housing payments as separate benefits with separate rules applicable to them, but also by the way in which HB is structured….. It would therefore be wrong in principle, in my judgment, to regard Mr Burnip's subsistence benefits as being notionally available to him to go towards meeting the shortfall between his housing- related benefits and the rent he had to pay.
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 [HB] 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 [HB], 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."
"…. the Secretary of State has explained in detail his reasons for structuring the scheme in the way that he has. In particular, he has explained why he has decided 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. In combination, his reasons are far from irrational. 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. For the reasons given … above, I consider that they amount to an objective and reasonable justification of the scheme."
"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 indention of the scheme as a whole is that DHPs should be used to plug the gap where, if Regulations B13 were to be viewed and applied in isolation, a person with an ascertained need for an additional bedroom would otherwise be the subject to discrimination on the grounds of disability ….
iii) Third, although the awarding of DHPs remained discretionary, the position of disabled people living in specially adapted accommodation....was specifically identified in the Good Practice Guide as being a category for whose support additional funds had been allocated to the DHP fund …"
(b) Discretionary Housing Payments
"3.8 In establishing if the claimant requires further financial assistance, you can decide how to treat any income or expenditure, taking into consideration the purpose of the income where appropriate.
3.9 For example, you may decide to disregard income from disability related benefits as they are intended to be used to help pay for the extra cost of disability. As part of the application process you should take care to ascertain whether such money is committed to other liabilities for which it was intended, such as Motability schemes or provision of care, seeking evidence regarding expenditure from the claimant. If you do decide to take such income into account then you should consider providing an explanation to the claimant as to why you have done so….
3.11 You will need to decide locally how you treat income and expenses when calculating the amount of DHP. However, in all cases you should consider what is reasonable and not create a process that is too onerous for the claimant."
"The shortfall between [HB] and the rent liability;
The financial and medical circumstances (including ill health and disabilities) of the claimant, their partner and any dependants and any other occupants …;
The income and expenditure of the clamant, their partners and any dependants or other occupants …"
The Council confirmed that the Sandwell Policy was likely to remain unchanged in 2014-2015 in relation to DHPs, although the new version was not disclosed in these proceedings.
(c) Disability Living Allowance
"A payment to or in respect of any person which is attributable to his entitlement to [DLA(m)], and the right to receive such a payment, shall (except in prescribed circumstances and for prescribed reasons) be disregarded in applying any enactment or instrument under which regard is to be had to a person's means".
"In circumstances where the draftsman has been so specific about what is to be disregarded and in what context, I do not think that one can extract any wider statutory purposes to the effect that disability living allowance is to be disregarded altogether when determining housing benefit. The very fact that the statutory ring-fencing does not apply to the care component in the context of [the regulation permitting a discretionary award] is in my view a strong indicator that ring-fencing is not required."
Issue 1: Policy
Issue 2: Discrimination
(a) Whether decisions about DHP engage obligations not to discriminate
(i) Article 14
"The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"One of [the benefit cap's] aims is to force persons who are out of work and in receipt of benefits to take decisions as to how they can live within the means of the capped benefits they receive. As a result, many families will be forced to find cheaper accommodation. In particular, it may be necessary for them to move away from areas of high cost accommodation and, therefore, away from existing support networks provided by their wider families and friends. ... In the circumstances, we consider that the measure does have a sufficient impact on the enjoyment of private and family life to engage article 8 in the sense that it falls within the ambit of the provision."
"It is however a general principle of Strasburg law under article 14 of the Convention that additional rights falling within the general scope of any Convention right for which the state has voluntarily decided to provide must in that event be provided without discrimination…"
(ii) The 2010 Act
"A person (A) discriminates against a disabled person (B) if —
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim."
"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim."
(b) Whether the Council's approach to DLA(c) is discriminatory
Issue 3: Public sector equality duty/Failure to make reasonable adjustments
(a) Public sector equality duty ("PSED")
"I would emphasise the need for the court to ask whether as matter of substance there has been compliance; it is not a tick box exercise. At the same time the courts must ensure that they do not micro-manage the exercise."
(b) Failure to make reasonable adjustments
"… where a provision, criterion or practice ... puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."
Issue 4: Statutory purpose/irrationality