Upper Tribunal (Administrative Appeals Chamber)

 

 

DECISION OF THE UPPER TRIBUNAL

 

The claimant’s appeal is dismissed and the first-tier tribunal’s decision of 17 March 2009 on the amount of housing benefit to which he was entitled from 9 June 2008 confirmed. 

 

 

REASONS

 

Mr P L Howell QC:

 

Introduction

1. This appeal by the claimant must be dismissed, as in my judgment there was no error of law in the decision of the Birmingham tribunal of 17 March 2009 (Mr R J S Hawes, First-tier Judge, sitting alone) that he was entitled to housing benefit from 9 June 2008 for his privately rented flat with the eligible rent calculated at the local housing allowance rate for single bedroom self-contained accommodation under regulations 13D(2) and (3) of the Housing Benefit Regulations 2006 S.I. No. 213 and Schedule 3B to the Rent Officers (Housing Benefit Functions) Order 1997 S.I. No 1984 as in force at the relevant time, and not at the higher rate for two bedrooms.

2. Leave to bring this appeal was granted by another judge of the first-tier tribunal. The sole issue raised in it, not raised or mentioned at all in the proceedings below, is whether the calculation of the claimant’s eligible rent under the Housing Benefit Regulations amounts to unlawful discrimination against him contrary to section 6 of the Human Rights Act 1998 and Article 14 of the Convention on Fundamental Rights and Freedoms, he being a person severely disabled with spinal and muscular dystrophy.  It is not disputed that the first-tier decision, and the housing benefit authority awards it confirmed, gave him his prescribed entitlement to housing benefit under section 130 of the Social Security Contributions and Benefits Act 1992 and the relevant regulations. In this appeal he now contends that the failure of the domestic legislation to give him a greater amount is unlawful discrimination and that this can and must be remedied under the Human Rights Act by increasing his award, from the category (b) rate for single-bedroom self-contained accommodation for one occupier (the one prescribed for his circumstances) to the category (c) two-bedroom rate (the next one up, prescribed for accommodation for two resident adult occupiers not living as a couple), a weekly increase for him of some £23.

3. As the first-tier judge observed when granting permission to appeal this frontal challenge to the prescribed limits under the housing benefit legislation raised a point of general importance.  Direct regulation of rents having now largely been abandoned, the local housing allowance system (which limits the rent eligible for benefit to locally prescribed median rates for the various categories of accommodation) now represents the central government’s main way of trying to contain the ballooning cost of housing benefit payments to the private rented sector.  A challenge to its validity could have wide implications and potentially affect many other people and groups, not just the disabled, who may also feel their special needs are not catered for adequately in the rates prescribed: concerns that are likely to increase as the effects of the present government’s further attempts to cut benefit costs begin to be felt.  The Secretary of State was therefore joined as a second respondent to the appeal, the first being the Birmingham City Council whose decision as the housing benefit authority the tribunal had confirmed.  Ssubsequently the Equality and Human Rights Commission, which had become aware of the proceedings and wished to make submissions on the points of principle involved, was also joined at its own request and on my direction as intervener. 

4. I held an oral hearing of the appeal.  Tim Buley, instructed by Irwin Mitchell, appeared for the claimant. Tim Eicke, instructed by the solicitor to the Department for Work and Pensions, appeared for the Secretary of State.  Ben McCormack appeared for the Commission, instructed by Rhodri McDonald, its solicitor.  Quite understandably in view of the role by then taken on by the Secretary of State, the Council did not appear at the hearing, though it had made a helpful written submission by its solicitor, Mr R Keane, expressing broad sympathy for the claimant’s position while being unable to concede the appeal.  I found all of the arguments, both written and oral, well constructed and illuminating, and all the points made and material put before me have been taken into account in the conclusions I have reached, even though I have not found it necessary to prolong this judgment by referring to them all expressly.

The facts

5. The claimant is a young man now aged 24 who at the time of his housing benefit claim on 6 June 2008 was a full-time student, just coming up to the end of the third year of his four-year degree course for a BSc in politics and international relations at Aston University.  As I have already said, he has spinal and muscular dystrophy and has at all times been a severely disabled person.  It needs to be said at the outset that with his level of disability, the barriers he has had to overcome in reaching this level of achievement, the courage on his part involved in doing so and the support he will have had from his parents and others in helping him along the way, must all have been quite formidable. 

6. An assessment by the Warwickshire County Council Social Services Department of his day to day needs was in evidence before the first-tier tribunal and accepted in its findings: pages 23, 102.  This showed that he required 24-hour care and support, assessed as best provided by employing a team to maintain live-in care.  It is not in dispute, and the tribunal so found, that at all material times the claimant was being provided with care on this basis in his own self-contained flat, with the team taking it in turns (or doing tours of duty a week or so at a time) to stay there overnight so as to be on hand to assist with any personal care tasks needed in the night such as repositioning the claimant on the bed. However he did not require anyone to be constantly awake and watching over him, so the carer on duty could sleep for most of the time in a separate bedroom. 

7. For this level of assessed care needs, the claimant therefore required to be in accommodation that included an extra bedroom in the same flat which the carer could use.  Nor of course was every two-bedroom flat suitable for a person with his needs. As he explained in a letter of 22 June 2008 applying to the council for a discretionary housing payment to meet the full cost of his rent (page 15), the flat he had then rented and on which he claimed housing benefit was the only one out of 11 his parents viewed on his behalf that had level access and suitably sized rooms to store and cope with all the disability equipment he needs to have, such as a powered wheelchair, manual wheelchair for emergency use, hoists, bathroom chairs, etc.  Even after they found the flat and he began renting it at the end of May 2008 there were some things that needed altering because of his disability and he was not able to move in until 16 June 2008: page 48. 

8. The rent he actually had to pay for this flat was £155.77 per week. Perhaps unsurprisingly, that figure was well above the prescribed median level for the area, even where two bedrooms were allowable.  It compared with: (a) £66 a week, the “single room shared accommodation” rate which was all that would have been allowable for a non-disabled single person of his age at the relevant time; (b) £103.85 per week, the “single bedroom self-contained accommodation” rate that actually applied to him under the regulations as a severely disabled person in sole occupation; and (c) £126.92 per week, the rate the claimant has throughout contended should apply to him, which was the “two-bedroom rate” prescribed for self-contained accommodation occupied by two adult residents not living together as a couple.

The domestic law and the first-tier decision

9. As I have already said it is not now disputed, and in my view is plainly indisputable, that the first-tier judge was right for the reasons he gave in holding the prescribed “eligible rent” under regulations 11, 12D and 13D of the Housing Benefit Regulations for calculating the claimant’s housing benefit on his claim of 6 June 2008 was (b), and not (c) or for that matter (a).  The reason for this is that, while the claimant as a severely disabled person in receipt of the highest rates of both components of disability living allowance (which he was, and is) was not restricted to the single room shared accommodation rate (as a non-disabled single person of his own age would be: regulation 13D(2)(a)), nor was he excluded from housing benefit altogether (as a non-disabled single person of his own age would be while a full-time student: regulation 56), he was the only resident occupier of his flat; and the regulations simply did not provide for him to be given any extra allowance for his additional bedroom, any more than they did for the extra rent of a more costly flat with special access or adaptations. 

10. To demonstrate this there is no need to do more than refer, as the first-tier judge did, to the definition of “occupiers” in regulation 13D(12):

“‘occupiers’ means the persons whom the relevant authority is satisfied occupy as their home the dwelling to which the claim or award relates…”

and to read that with regulation 13D(3) which sets the bedroom limits:

“(3) the claimant shall be entitled to one bedroom for each of the following categories of occupier (and each occupier shall come within the first category only which applies to him) –

(a) a couple (within the meaning of part 7 of the Act);

(b) a person who is not a child;

(c) two children of the same sex;

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

(e) a child.”

11. In view of the claimant’s own express evidence that his carers rotated and were not normally resident at his address, but there merely as part of their job, being supplied through a care agency, having alternative permanent addresses and sometimes working for other clients in other parts of the country, the judge concluded in what appear to me impeccable and quite unchallengeable terms that:

“The Tribunal decided that the Appellant’s team of carers could not be regarded as occupying his property as their dwelling.  The Tribunal considered that the dwelling was a place of work and the fact that they live in is a condition of employment in order that 24 hour care can be provided.  The carers’ homes are elsewhere which is confirmed by the Appellant in his letters.

The Tribunal therefore decided that for the purposes of determining Local Housing Allowance the Appellant is entitled to one bedroom in keeping with the provisions of regulation 13D(3)(b).”

The new contention of alleged discrimination: arguments of the parties

12. That conclusion being rightly accepted as a correct statement of the effect of the domestic legislation as well as the evidence, it is now contended nonetheless that the tribunal should have, and I now must, cut loose from that legislation and hold the claimant entitled to an award of housing benefit from 9 June 2008 based instead on the category (c) eligible rent for two bedrooms, as if his team of live-in carers together constituted an additional single adult also residing in his flat as their home.  It was not spelt out at any point in the argument for the claimant, but is necessarily the case since without this further departure the contention would do him little or no good, that this award would have to be made without applying the corollary that would apply in a real case where there actually was another single adult occupier living in the claimant’s flat as his home, that the claimant would no longer qualify to have a severe disability premium included in his applicable amount for housing benefit purposes under paragraph 14 of schedule 3 to the regulations. That premium, which the claimant gets at present, is provided specifically for severely disabled people living on their own without another non-disabled adult in the same household (see in particular paragraph 14(2)(a)(ii)), and its loss could otherwise deprive him of more housing benefit than he gained from the extra room rate.  The actual amounts involved depend on his income: see further below. 

13. The requirement for that extra award, and the unlawfulness of doing anything other than make it with effect from 9 June 2008 under the claim of 6 June 2008, is said to arise under section 6 of the Human Rights Act, by virtue of Article 14 of the Convention (prohibition of discrimination in relation to enjoyment of Convention rights) read in conjunction with either Article 8 (right to respect for private and family life and home) or Article 1 of Protocol 1 (peaceful enjoyment of possessions), or both. 

14. The discrimination relied on by Mr Buley (after some discussion in argument) is against the claimant as a severely disabled person, and is said to arise in two different though related ways. First, that the operation of the local housing allowance limits to restrict his eligible rent to one bedroom rather than two, and/or the housing benefit scheme as a whole, imposes an adverse differential effect on him and other similarly disabled people as compared with the non-disabled, by making it disproportionately more difficult for them to obtain a level of cash public assistance by way of housing benefit to meet their essential housing needs. Secondly, the identification of unlawful discrimination contrary to Article 14 is in any event not merely a matter of analysing out whether the claimant has suffered less favourable treatment than some identified comparator as under the domestic discrimination legislation: it is now established on authority in the European Court of Human Rights, and acknowledged in domestic authority binding on me, that there can in certain circumstances be discrimination contrary to Article 14 in a failure to take positive measures to treat differently persons whose situations are significantly different.  The claimant’s special needs as a severely disabled person make this such a case so that it is contrary to Article 14 for him not to have been given the extra room allowance from June 2008 even though he did not qualify for it under the rules as to “occupiers” otherwise applicable to all claimants without distinction.  There can be no objective and reasonable justification for failing to do this, as is evidenced by the fact that the government has now found it reasonable and right, even in these times of stringency, to introduce a special extra provision for disabled people into regulation 13D having exactly the effect he wants, though only from 1 April 2011; see Housing Benefit (Amendment) Regulations 2010 SI No 2835.  In those circumstances the requirement of positive differential treatment established by the ECtHR in Thlimmenos v Greece (2001) 31 EHRR 15, acknowledged and approved by the Court of Appeal in AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634, applies; and the justifications found in the latter case to prevent the particular failure in question from amounting to a breach of Article 14 are inapplicable.

15. The Commission supports the claimant’s appeal, in particular on the second ground, Mr McCormack submitting that the case is best viewed as one in which it is the failure to distinguish between the different classes of benefit applicant which is discriminatory.  Moreover a severe disability such as that experienced by the claimant is a personal characteristic at the very core of an individual’s personality and identity:  discrimination on the basis of such a characteristic ought to require strict justification. That the Commission considers has not been established in this case, the legitimate aim and proportionality of the housing benefit restrictions suffered by people like the claimant not having been demonstrated as regards the period from June 2008 onwards.  The need for the special provision sought by the claimant having in any event been accepted by the government from 1 April 2011 (in response in large measure to pressure from the Commission itself) to maintain the restriction for the period before that date is equally unjustified: in particular having regard to the provisions of the UN Convention on the Rights of Persons with Disabilities, ratified by the UK in June 2009 and expressly affirming the rights of disabled persons to live independently and be included in the community, and to an adequate standard of living and social protection. 

16. On behalf of the Secretary of State it was argued by Mr Eicke that though the identification of unlawful discrimination contrary to Article 14 is a different analytic exercise from that under the domestic legislation, the complaint of either direct or indirect differential treatment to the claimant’s disadvantage necessarily involved a comparative exercise, if “differential” was to have any meaning; and the claimant had failed to demonstrate that the Housing Benefit Regulations imposed any prejudicial effect on him as a member of a “status group” within Article 14 by comparison with any other such group or with the population in general.  Indeed he had really failed to identify as a member of which group within Article 14 he was entitled to make such a claim, since the operation of the rules about which he was complaining depended on the particular package of care that was being provided for him and the individual facts about the arrangements with his carers.  Their effect would not for example be the same for a similarly disabled person who happened to have a permanent living-in carer; and as compared with a non-disabled person who happened to require another person on the premises (for example a nanny to look after children) his room allowance depended on exactly the same objective factual question of whether there was one other person living in permanently or a rotating team.  The application of the local housing allowance room rate scales to all claimants alike was a justifiable, proportionate and objective rule, and the principle of Thlimmenos did not require the judicial creation of a special additional benefit entitlement for disabled persons whose factual circumstances happened to be those of the claimant.  Whether there should be any further special provision for such cases over and above what the benefits system already provided for them, and if so what form it should take, when it should be brought in, and whether that should be done by way of housing benefit allowances or in some other way, were all matters for the executive and the legislature, as they were questions of social policy and the allocation of public resources. Similar reasoning to that of the Court of Appeal in AM (Somalia) therefore applied to prevent the fact of this further special benefit for severely disabled people not yet having been introduced into the legislation at the time of this housing benefit claim in June 2008 amounting to unlawful discrimination contrary to Article 14.

The background to the claim and the effect on the claimant’s benefits

17. To evaluate the ways in which these claims of unlawful discrimination against, and unlawfully inadequate extra provision in favour of, the claimant as a severely disabled person are put it is I think helpful to look again at his position under the domestic legislation and what this case actually involves in terms of his benefits.  It is common ground, and in my view rightly so, that entitlement to an award of housing benefit is a matter of right under the domestic legislation if the prescribed qualifying conditions for it are met, so as to constitute a “possession” for the purposes of Article 1 of Protocol 1 to the Convention; consequently the conditions on which a person is able to obtain such an award, or may be deprived of it, are capable of giving rise to a claim of unlawful discrimination contrary to Article 14 in conjunction with Article 1 Protocol 1: cf. Stec v United Kingdom (2006) 43 EHRR 47.  It is not common ground that the nature of housing benefit also automatically engages Article 8 of the Convention so as to enable a discrimination claim under Article 14 to be mounted by that route as well, but that is immaterial for the present purpose and I will leave it undecided.  It is also common ground for the purposes of this appeal that disability is capable of falling within the expression “other status” under Article 14, so that discrimination against disabled people, or severely disabled people, in relation to awards of housing benefit or the conditions on which such awards may be obtained is unlawful if established under that Article by showing the existence of some difference in treatment causing inequality, or in certain circumstances the failure to accord some difference in treatment to redress inequality, in either case without rational and objective justification in pursuit of a legitimate aim.

18. The claimant already gets a substantial amount of extra cash assistance under the benefits system by reason of his disability, which is not available to non-disabled people. To enumerate it is not to carp at the amounts he is able to claim or in way to belittle the social, financial and other barriers faced by disabled people even with the help they get from benefits, but merely to place the present complaints of discrimination in the one respect of his room rate allowance for housing benefit against the background of the entitlements he already has under the benefit legislation, and to understand the context in which it is being argued that I am bound by the force of Article 14 to step beyond that legislation and create one additional element of benefit for him judicially. 

19. In the first place it was only because the claimant was a disabled person that he was able to claim housing benefit at all while a full-time student.  A non-disabled person in otherwise similar circumstances would be excluded from it altogether: regulation 56 already cited. Setting aside the fact that he was a student the calculation of the claimant's housing benefit entitlement also included several special adjustments for the fact of his disability.  The actual figures are set out very clearly and comprehensively in the authority's revised decision notices and letters dated 12 and 18 August 2008 at pages 30-41 and those in the following summary are taken from there. 

20. The basic calculation of a claimant’s housing benefit entitlement depends on a comparison of his “applicable amount” (his deemed weekly subsistence needs for means-tested benefit purposes) with the reckonable income he actually has, in conjunction with his weekly rental liability up to the amount of his eligible rent.  If his reckonable income does not exceed his applicable amount, then he gets weekly housing benefit for his rent liability up to the maximum of his eligible rent.  If his reckonable income exceeds his applicable amount, then his weekly housing benefit is reduced by 65% of the excess. 

21. The claimant's weekly applicable amount from 9 June 2008 consisted of the standard allowance for a single claimant under 25 of £47.95, substantially increased because of his disability by the three separate (and cumulative) premiums for which his circumstances qualified him under Part 3 of Schedule 3 to the Regulations: the disability premium for a single person of £25.85, the enhanced disability premium of £12.60 and the severe disability premium of £50.35: a total applicable amount of £136.75.

22. The claimant's income consisted only of benefits and student loans.  At all material times he was receiving the top rate of both components of disability living allowance (the non-means tested non-taxable weekly benefit provided for disabled people living in the community, to assist with their care and mobility costs); and also long-term incapacity benefit (the insurance-based weekly income replacement benefit for people unable to work through physical or mental incapacity, which the claimant was able to get without having paid the normal national insurance contributions by virtue of having been disabled from his youth).  At 9 June 2008 his weekly disability living allowance was £113.75, plus £102.25 for his incapacity benefit;  in addition to which the apportioned weekly amount of his student loan for the current year was £72.09, making a total weekly income for his maintenance and other needs of £288.09.  Of this the whole of the disability living allowance is disregarded from the means testing calculation, and after the deduction of smaller allowable amounts from the student loan for books and travel expenses, he was left with a reckonable income for housing benefit purposes of £149,  exceeding his applicable amount by £12.25.

23. The claimant’s maximum eligible rent for housing benefit was £103.25, the category (b) rate explained above (as already noted, if he were not severely disabled it would have been only £66).  Subtracting 65% of his excess income (£7.96) from that left the net weekly housing benefit to which he was entitled from 9 June 2008 as £95.89.

24. If the claimant had been treated as having another non-dependant adult living with him in his flat, his maximum allowable benefit would have increased to the two-room category (c) rate of £126.92, but the advantage from this would have been more than offset by the loss of the £50.35 severe disability premium (which is for severely disabled people living on their own without another such adult: cf. paragraph 14(2)(a)(ii) and (iv) of Schedule 3) and the combined effect would have reduced his weekly housing benefit to £86.23.  (There is an exemption for certain carers provided by charitable or voluntary organisations who are excluded from counting as “non-dependants” but from the descriptions in the evidence of the claimant’s care arrangements it seems unlikely that this could apply: regulation 3(2)(f), and pages 23, 84.)

25. For the period from 7 July to 5 October 2008 the benefit calculations show the claimant’s weekly housing benefit award increased to the maximum of £103.85, because there was no longer a weekly apportionment of his student loan to be taken into account as income in the summer vacation period.  For this period the addition of the £23.07 he seeks to his eligible rent would have been an advantage to him on any footing, since even without a severe disability premium his weekly benefit would have increased to £116.62.  From 6 October 2008 onwards, when his student loan for the final academic year of his course was taken into account, the balance of advantage reverses again: his weekly benefit as awarded was £75.30 (reflecting the higher weekly loan amount for that year) while with the extra room rate, but without the severe disability premium, it would have been only £65.73.

26. In addition to the benefits provided for him as a matter of right the combined decision letters at pages 30-41 show that the claimant was awarded a further addition to his housing benefit by way of a discretionary housing payment at the rate of £40 per week (throughout the year: this did not change on 7 July or 6 October), in response to his application contending that the rates and allowances in the normal regulations failed to meet his special needs.  This too seems to me relevant to take into account in the context of his complaint of discrimination in the housing benefit awarded to him from 9 June 2008, though both he and the authority are also justified in pointing out that discretionary housing payments are just that: there is no guarantee they can be continued in further years and in that sense they are less satisfactory than payments as of right.

Conclusions: (1) the claim of adverse differential treatment

27. I was unable to see that the claimant’s housing benefit award calculation discriminated against him as a disabled person, using “discriminate” in its main legal sense of adverse differential treatment. 

28. I accept Mr Buley’s point that identifying discrimination under Article 14  is a different process from that familiar under our domestic discrimination legislation and  case law as it has developed, with its concentration on “less favourable treatment” and the need to identify some actual or hypothetical “comparator” from the outset of the inquiry.  As is now established and accepted in our law, the approach under Article 14 should be (for want of a less overworked word) more holistic, and a rigidly formulaic approach is to be avoided: cf. per Lady Hale in Ghaidan v Godin-Mendoza  [2004] 2 AC 557 at 605, paragraphs 133-134; AL (Serbia) v Home Secretary [2008] 1 WLR 1434 paragraphs 23-24. The elements of different treatment, the reasons for it, and whether it is justified, all feed into one another and instead of being addressed and analysed in isolation as separate questions are rather facets of a single question: has the claimant been subjected to a difference in treatment as a member of a particular status group without objective and reasonable justification? 

29. To that must now be added in certain circumstances, has the claimant not been accorded the benefit of a difference in treatment, etc., where Article 14 requires this to avoid discrimination under the principle laid down by the ECtHR in Thlimmenos cited above; but I will deal further with that alternative way of putting the case below.

30. Applying that more blended appproach to the points that need to be considered in a particular case, it seems to me that “objective and reasonable justification” can be as much a useful part of identifying the grounds for whatever difference in treatment is in issue and whether these infringe Article 14, as it is a separate “defence” to be deployed against a prima facie case of discrimination once any difference in treatment is established: in other words whether it is really as a member of his protected status group at all that the claimant has been given the treatment he complains of, rather than for dissociated and objective, non-discriminatory, reasons.

31. On any formulation however the concept of a “difference” in treatment as prohibited, or in a Thlimmenos case required, by Article 14 remains central and necessarily involves, both linguistically and in substantive logic, the identification of the status group and the differential treatment which as a member of that group the complainant claims to have suffered (or not been accorded) contrary to Article 14. 

32. I agree therefore with Mr Eicke that it is legitimate to ask, what is this group as a member of which the claimant is able to establish a case of adverse differential treatment contrary to Article 14?  And what is the adverse treatment which as a member of that group he has actually suffered, from the fact that his cash assistance under the housing benefit scheme, and the room rate scales under regulation 13D, provide, for him as for all other claimants, for accommodation for resident occupiers but not for others? 

33. Mr Buley’s response as already noted was that those provisions discriminate against the claimant as a severely disabled person, someone so severely disabled as to require 24-hour living-in care; and it was nothing to the point that such a person would not suffer the discrimination complained if his carer was a resident occupier so that the two-room rate became applicable.  That comparison between two sub-groups of equally disabled people with different factual circumstances was not the one he was seeking to make. I am sure he was right not to do so, as the nearer one gets to defining the “group” by reference to the particular factual differences in treatment giving rise to the complaint, the more difficult it is to see the group as one of status or personal characteristic within the intendment of Article 14: R (Clift) v Home Secretary [2007] 1 AC 484, per Lord Bingham at 496 paragraph 28; or as a Canadian judge said on a closely similar point

“A finding that there is discrimination will ... in most cases necessarily entail a search for a disadvantage that exists apart from and independent of the particular legal distinction being challenged.” (R v Turpin, [1989] SCR 1296, 1331-2, Wilson J)

34. There is no question of the legislative provision challenged here amounting to direct adverse discrimination against disabled people: the provision of housing benefit according to room rate scales to allow for accommodation for resident occupiers, but not for others, applies to all claimants equally whoever they are and whatever the reasons they do or do not have additional adults who they need or want to accommodate without becoming occupiers.  There is direct and overt discrimination in the housing benefit system in relation to a severely disabled person such as the claimant, but all of it is positive discrimination in his favour.  As has already been seen he is differentiated as a disabled person in that he gets (a) housing benefit at all as a full-time student, when his non-disabled counterpart would get none; (b) extra premiums in his applicable amount, whose effect in the means-testing calculation is to give him a greater cash benefit for a given income; and (c) the higher rent allowance for self-contained accommodation, over half as much again as a non-disabled single recipient of his age whose rate is limited to just a bedroom in shared accommodation.

35. The Strasbourg jurisprudence recognises the concept of indirect discrimination, in that a general policy or measure which has disproportionately prejudicial effects on a particular group may be considered discriminatory, notwithstanding that it is not specifically aimed at that group: DH v Czech Republic (2008) 47 EHRR  3, paragraphs 175, 184.  The same principle is of course recognised in European Union law, an easy example being the restriction of employment-related benefits to full-time workers, which can be a means of discriminating unfairly against women because proportionately more of them work part-time.  But again, “prejudicial” in such cases involves the imposition of a disadvantage as compared with the population in general (in the Czech case, the placing of a disproportionate number of Roma children in special schools), or the witholding of some benefit available to the relevant non-disadvantaged group (e.g. access to a higher salary grade, in Case C-184/89 Nimz v Freie und Hansestadt Hamburg 1991 ECR I-297), the identification of which both denotes the adverse differential treatment which is the discrimination, and failing correction of the national law provides the “only valid system of reference” to determine what is needed to remedy it under the EU principle of direct effect: cf. Nimz, paragraphs 18-21.  This it seems to me is the point at which the complaint of adverse differential treatment of the claimant as a disabled person comes to grief since it is not possible to identify on the facts any relevant way in which a non-disabled person in otherwise similar circumstances would get any more money than the claimant; on the contrary as already seen the actual amount of housing benefit provided for such a person would be less, or none at all. 

36. The objective limitation of the room rates to “occupiers” being unrelated to disability or any other personal characteristic of the claimant and applying to all alike, I therefore conclude that this is not a case of a breach of Article 14 based on direct or indirect adverse differential treatment of the claimant as a severely disabled person. Mr Buley’s ingenious reformulation, to get over the lack of any identifiable disadvantage in the housing benefit rules as compared with a non-disabled person in otherwise relevantly similar circumstances, was that by failing to provide for an additional room rate in such cases the housing benefit rules were differentiating adversely against disabled people by not making adequate provision for their essential housing needs. That seems to me too subjective and generalised a formulation, and to involve too much in the way of value-judgment, to be capable of proof in a legal inquiry or to be a basis for a finding of adverse differential treatment under Article 14.  It really amounts to another way of putting the second argument, that because of the claimant’s special needs as a severely disabled person he must be given more than other people, not the same as them.

(2) the claim of failure to provide different treatment in the claimant’s favour

37. I therefore agree with the Commission that this complaint of discrimination contrary to Article 14 must be established under the principle in Thlimmenos if it is to be established at all. The principle was enunciated by the ECtHR in that case in the following terms at (2001) 31 EHRR 15 paragraph 44:

“44. 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 situations without providing an objective and reasonable justification.  However the Court considers that this is not the only facet of the prohibition of discrimination in Article 14.  The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”

38. The implications of that if taken too widely could be startling, but the existence of the principle that Article 14 may require “affirmative action” has also been recognised and confirmed, albeit in more qualified terms, in several later judgments of the ECtHR.  For example in Chapman v UK (2001) 33 EHRR 18 paragraph 129 the Court said:

“While discrimination may [sic] arise where States, without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (Thlimmenos v Greece) ...”

And then in Stec v United Kingdom (2006) 43 EHRR 47 at paragraph 51:

“Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may itself give rise to a breach of the Article (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 34-35, § 10, Series A no. 6, and Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). ...”

The principle in those last terms is reiterated in DH v Czech Republic at paragraph 175, citing the Belgian Linguistic case, Thlimmenos and Stec; and in identical terms, citing those same authorities, as part of the “Court’s well-established case-law” in Orsus v Croatia, no. 15766/03, judgment of 16 March 2010, paragraph 149.  In my view therefore the principle is now settled in the Strasbourg jurisprudence in its Stec formulation, incorporating the two important qualifications that it becomes applicable in certain circumstances, and is concerned not just with any case where different treatment is not provided for the complainant, but with  failure to accord different treatment where that itself is required to correct inequality. 

39. That latter point harks back to the qualification the Court expressed in the Belgian Linguistic case as to what inequalities are made unlawful by Article 14, in the passage cited with Thlimmenos as authority for the Stec formulation, in that and the later cases: (1968) 1 EHRR 252 at paragraph 10.  (It is worth noting that this in fact contains no suggestion of any positive requirement of different treatment under Article 14, so the new principle does not so much apply it as turn it inside out):

“10.  In spite of the very general wording of the French version (‘sans distinction aucune’), Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised.  This version must be read in the light of the more restrictive text of the English version (‘without discrimination’). ... The competent national authorities are frequently confronted with situations and problems which, on account of differences inherent therein, call for different legal solutions; moreover, certain legal inequalities tend only to correct factual inequalities.”

40. The existence of the priniciple has also been mentioned and recognised in recent United Kingdom authority: see Gallagher v Church of Jesus Christ of Latter-Day Saints [2008] 1 WLR 1852 at 1857 per Lord Hoffmann at paragraph 12 (where he was referring to the argument of Counsel, but I think it fair to say he acknowledged the principle and that it might be regarded as a form of indirect discrimination); and AM (Somalia) v Entry Clearance Officer already cited, where the Court of Appeal clearly accepted the principle even though they found against the claimant on the facts. 

41. In AM (Somalia), Maurice Kay LJ said at paragraph 14 of his judgment: 

“Different treatment of persons in analogous situations and same treatment of persons in significantly different situations are both prima facie discriminatory under Article 14 where it is disability that is the reason for the different treatment or the feature that makes the situations significantly different.  The real and more difficult issue in the present case is justification.”

And at paragraphs 38 and 44 Elias LJ said, before also holding the principle applicable to require justification for the lack of different treatment of the claimant from others:

“38.  “... the ECHR has also recognised in Thlimmenos v Greece ... that the Article can be invoked where ‘states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.’

44.  Th[e] traditional concept of of indirect discrimination is not the same concept as treating different cases differently.  In the latter, the core of the applicant’s complaint is not that a rule is imposing a barrier and cannot be justified: rather, the complaint is that even accepting that the rule can be justified in its application to others, it ought not to be applied to the applicant because his or her situations is materially different, and that difference ought to be recognised by the adoption of a different rule, which may take the form of an exception from the general rule. The complaint is not that the single rule adopted is inappropriate because discriminatory and unjustified: it is that the circumstances require that there should be more than one rule.”

Mummery LJ agreed with both judgments.  In the light of those passages and the  decision itself in AM (Somalia) there is I think no doubt that the principle of Thlimmenos is directly binding on me; the form in which it is so binding, in case anything turns on it, being in my judgment the Stec formulation, as reiterated in DH v Czech Republic which was referred to in both Gallagher and AM (Somalia). 

42. The more difficult question is of course whether the principle is actually applicable here to make the lack of the special extra provision the claimant wants added to his housing benefit into unlawful discrimination contrary to Article 14.  In my judgment it is not, for reasons which follow a fortiori from the principles applied by the Court of Appeal in concluding there was no such discrimination in AM (Somalia) itself.

43. In this kind of discrimination claim, even more than in one of adverse differential treatment, the blended approach identified in paragraph 30 above must apply and it is inevitable that the principal, if not the entire, focus must be on the question of objective and reasonable justification (which for the reasons there given is in my view a broader concept in the context of Article 14 than a mere “defence” to a complaint of indirect discrimination under domestic legislation).  Ex hypothesi there is no differential treatment in the provision the claimant is complaining about, because the nature of his complaint is that there should be:  a special rule more favourable to him than the one that applies to others.  The ECtHR judgments so far have held back from attempting to define the “certain circumstances” where Article 14 may require positive differentiation in favour of particular groups, or the scope of the separate and more important “inequalities” required to be corrected by this means; though with such a potentially wide reaching principle it is I think significant that in no case cited to me (and so far as I am aware in no case, in the ECHR or our own higher courts) has the Article so far been held actually applicable to make such differentiation mandatory, other than in Thlimmenos itself. 

44. In my judgment the most relevant factor is that this complaint is of a failure to provide an additional amount of money by way of social assistance for a group of people already entitled to a number of closely defined and not insignificant amounts of assistance under the interlocking provisions of the benefits system.  It is not one that concerns an exclusionary rule of the kind at issue in either Thlimmenos itself or AM (Somalia); in the former case, a harsh and unreasonable one which arbitrarily barred a person from a profession on grounds inextricably bound up with the exercise of his religious principles; in the latter, one that prevented a disabled person from having her spouse join her to live a normal family life in this country - even so being held justified. 

45. It is well established in the ECtHR jurisprudence that the state has a wide margin of appreciation in  matters of social policy and the allocation of public resources. Immediately after the passage in Stec quoted above the Court’s judgment continued:

 “51. ... A difference in treatment is ... discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.  The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. 

52.  The scope of this margin will vary according to the circumstances, the subject matter and the background.  ... 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’.”

46. This principle must in my view be of particular relevance in any complaint to a court that additional amounts of social assistance, beyond those the national social security and social asssistance systems already provide, are required as a matter of law to be awarded to particular people or groups of people by virtue of Article 14. As already noted, even in the case of the exclusionary rule which prevented a disabled person’s husband joining her in this country (because they were unable to meet the standard requirement of self-sufficiency and lack of recourse to public funds), the Court of Appeal in AM (Somalia) held the rule met the test of objective and reasonable justification.  Maurice Kay LJ specifically referred to the relatively small additional cost to public funds involved but after a review of the whole facts concluded: 

“29. ... All this convinces me that it is reasonable and proportionate to have a criterion of self-sufficiency without a general exception for the disabled.  It will produce cases of hardship but that in itself does not render it disproportionate, particularly where provision is made for exceptional compassionate circumstances.”

Elias LJ at paragraphs 63ff dealt more specifically with the question of public resources, in a passage that deserves to be quoted almost in its entirety:

“63.  The only issue is whether there is a justification for not making an exception, by way of excluding from the scope of [the standard rule], for spouses who are disabled to the extent that they are unable to work.  It was not suggested, or at least not with any vigour, that this was a case of traditional indirect discrimination.  In any event, if and so far as it was, the complaint must fail.  There can, in my view, be no doubt at all that the rule which permits partners to be together only if they are not a drain on the public purse is manifestly justified. 

64.  Mr Fordham [for the appellant] submits that precisely because the number of potential beneficiaries of an exemption from the rule will be relatively small, the additional cost will be limited.  The Article 8 rights of the disabled demand that the state supports this group and therefore the failure to make an exception to [the rule] is plainly disproportionate.

65.  I reject this argument, essentially for the following reasons, which are in large part interrelated.  First, this is an area of social policy concerning control of who should be allowed to enter this country and in what circumstances.  As I have noted, the courts are particularly reluctant to interfere in such areas. 

66.  Second, as Maurice Kay LJ has pointed out, the courts have frequently recognised that “bright line” rules are generally acceptable in such cases notwithstanding that they might produce some hardship.

67.  Third, the practical effect of making the exception involves public expenditure. In my judgment the courts will be particularly slow to require special treatment for a group when it affects the distribution of national resources, even if it be the case that the sums will be relatively small.

 68.  Fourth, and in my view importantly – and this is likely to be true of most indirect discrimination claims of this nature – it is difficult to foresee what other potential claims of a similar kind there may be.  ... given the wide potential category of personal characteristics which might fall under the concept of “status” in Article 14, there is potentially a broad range of cases where persons would be adversely affected by the application of a rule because of some characteristic related to that status.  This does not merely create a difficulty in foreseeing the potential range of claimants urging special treatment, but it also makes the potential costs very difficult to predict.  These uncertainties reinforce the justification for a bright line rule. 

69.  Fifth, as Ms Giovannetti, counsel for the Secretary of State, emphasised, there would be additional administrative costs in having to identify whether a particular case falls within or outwith the exception – a particular difficulty given that the concept of disablity itself is imprecise – and such cases would have to be periodically reviewed.  Indeed, administrative burdens will almost inevitably be created once one departs from a bright line rule because of the need to draw the distinctions which a more nuanced rule will create.

70.  Sixth, as I have said, this is not a case of direct or planned discrimination; as Lord Hope observed in AL (Serbia), para 10, the absence of targeting will be an important factor when determining whether potential discrimination is justified.

71.  Finally, a factor lending some additional support to this conclusion is the fact that the Secretary of State is empowered in particularly compassionate cases to exercise a discretion in favour of entry.  This was a factor which helped to render the rule proportionate in the AL (Serbia) case: see the observations of Lord Bingham at paragraph 3.

72.  For those reasons, therefore, I am satisfied that the failure to adopt a special rule for those whose spouse in this country cannot work by reason of disability is fully justified.  The rule is lawful notwithstanding its discriminatory impact.”

47. Those or corresponding considerations would apply equally to this case to prevent the housing benefit rule here in question from being unlawful under Article 14 even if contrary to the view I have expressed this is a case of adverse differential treatment; and in case anything turns on it I expressly so find.  They must in my judgment apply with even more force to do so when the claim is viewed as one under the Thlimmenos principle, since here the question is purely one of the allocation of social assistance resources under the benefits scheme, and what is sought is not simply the disapplication of a negative exclusionary rule, but the award of an additional cash benefit outside the rules altogether for which there is in fact no valid “system of reference”.

48. In such a context, and against the background of what the benefits system already does provide for disabled people in this claimant’s situation, the argument that an additional cash allowance has to be created by judicial intervention under Article 14 must in my view be approached with extreme caution; even more caution, if anything, than that displayed by the Court of Appeal in AM (Somalia). The self-evident (and in my judgment self-evidently legitimate) aim of the rule being challenged is to control the cost of housing benefit and ensure that this form of social assistance is paid out only for its purpose of helping providing people with a home, not for accommodation to be used for other purposes.  It applies the objective and in my judgment entirely rational criterion that the accommodation allowances therefore depend on the number of occupiers, as defined, that is residents living in the property as their home; not people temporarily there for other purposes however necessary or commendable. 

49. The claimant’s argument really comes down in my view to saying that because of his special needs as a disabled person he requires a more expensive home for himself, and should be entitled to extra housing benefit to reflect this.  He has (or those acting on his behalf have) chosen to pin the claim on the extra room rate for another full-time resident but once one departs from the rules the reality, it seems to me, is that it is the same argument in principle whether quantified in that way or as extra cash towards the increased cost of renting a ground-floor flat with level access, wider doors and other features or adaptations to make it a more suitable home for him. 

50. The benefits system is intricate and complicated, and as has been seen contains many detailed provisions that interact and interconnect with one another.  Of course in such a massive and complex system there will be apparent anomalies and cases where deserving people, as I am sure this claimant is, will find themselves on the wrong side of some detailed distinction or with amounts they consider unfairly fail to reflect their special needs so that more should as a matter of social justice be done for them.  But the evaluation, and if necessary correction, of such matters and the provision of the extra resources for the purpose are questions for the legislature and the executive, and in my judgment well within the principle emphasised by both the ECtHR and the Court of Appeal in the cases I have cited, that these are areas from which courts applying the Convention must stand back, as outside the proper scope of intervention under Article 14.

51. The factors of the practical need for a single clearly-defined rule, the existence of the supplementary system of discretionary housing payments to alleviate hard cases (which even if less than perfect did in fact do exactly that for this claimant for the relevant year), and the unknown quantity of other groups who might with equal justice emerge to claim special treatment and extra cash, all support that conclusion in this case at least as much as in AM (Somalia).  Mr Buley naturally pointed to the introduction of the special extra room allowance for the severely disabled from April 2011 as a de facto acknowledgment that the previous rule was unjustified, but in my judgment that does not at all follow as a matter of law under Article 14.  The extra allowance to alleviate the position of comparatively few claimants is of course being introduced at the same time as much more general cuts across the board in which a lot of others will suffer.  In my view the effect is merely to underline the point that the making of such changes, the amounts involved and their timing, are matters for legislation, not judicial tinkering with just one setting in one individual piece of the overall machinery.

52. In my judgment therefore the claim that there was a violation of Article 14 in the failure to provide the claimant witth extra housing benefit outside the rules, at the two-room rate or otherwise, from June 2008 onwards is not well founded and I dismiss it.

53. That conclusion makes it unnecessary to decide the question that exercised me in the course of argument of what jurisdiction I actually had to make an order of the kind sought if the claim succeeded, particularly on the second (Thlimmenos) ground.  I would say only that the point seems to me to be one of doubt because neither in section 6 of the Human Rights Act nor elsewhere does there appear to be any express power for me to award additional cash benefits out of public funds, by way of positive creation divorced from the actual rules (as distinct from simply disapplying an excluding rule, in subordinate legislation where inconsistent with Convention rights); there is no EU legislation in point to invoke the principle of direct effect; and the doubts expressed by Judge Lloyd-Davies in the final paragraph of his judgment in R(IS) 7/09 CM v SSWP about the ability of this tribunal to grant declaratory relief (and for that matter what effect that would have in terms of legal entitlement to benefits) appear to me to be valid ones.

 

P L Howell

Judge of the Upper Tribunal

13 January 2011