Bedroom tax challenge succeeds in the Court of Appeal

01 Jan 2018

On 27 January 2016 the Court of Appeal handed down judgment in the conjoined bedroom tax appeals of R (on the application of Susan Rutherford, Paul Rutherford and Warren Todd (a child, by his litigation friend Susan Rutherford)) v Secretary of State for Work & Pensions; R (on the application of A) v Secretary of State for Work & Pensions and Equality and Human Rights Commission (Intervener) [2016] EWCA Civ 29.

The headline is that the appeals of the individuals subject to the bedroom tax succeeded, and the Court of Appeal declared that “the Appellants have suffered discrimination contrary to Article 14 of the ECHR on the basis set out in the judgment of the court”.

The judgment of the Court of Appeal is of an importance not restricted to the appellants’ own circumstances (indeed A was not in fact suffering financially because of the award of discretionary housing payments (DHPs)), albeit it does not merit the somewhat simplistic “bedroom tax declared unlawful” headlines that have already started appearing.

That is because it was not a challenge to the bedroom tax per se, rather the appellants argued that the “defined Regulation B13 is unlawful insofar as it does not include them within a defined class of persons whose position has to be taken into account for the purposes of the reduction in Housing Benefit…”

A is a female victim of domestic violence living in accommodation adapted under the Sanctuary Scheme whilst SR and PR are overnight carers of a disabled child (W). They contended that Regulation B13, as it applied to the appellants, fell foul of Article 14 of the European Convention on Human Rights and the Secretary of State had further (it was argued in A) breached his public sector equality duty (PSED).

Previous Authorities
The Court acknowledged that it was bound by R (MA and others) v the Secretary of State for Work & Pensions [2014] EWCA Civ 13, [2014] PTSR 584 as regards the bedroom tax “scheme” as a whole, and that judgment’s analysis of Burnip v Birmingham City Council [2012] EWCA Civ 629, [2013] PTSR 117 (a case where the Secretary of State had failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria, and it was held that DHPs could not be held up as a complete answer to that), which was distinguished in MA.  It therefore did not seek to consider whether either of these decisions were correct.

Article 14 and Justification
The fact that the offending Regulation B13 constitutes prima facie discrimination was accepted in both appeals and the case turned on whether the Secretary of State could show that there was “objective and reasonable justification for that discrimination which was not manifestly without reasonable foundation”.

It was noted that the Secretary of State was placing special reliance on DHPs such that the scheme as a whole – comprising HB and DHPs – was not discriminatory in its overall effect. (As an interesting aside, the Court had wondered if that was the case why the Secretary of State did not deny discrimination, though acknowledged the difficulties he would encounter in the form of Burnip and MA where the discrimination findings were made in relation to the bedroom tax regulation itself (B13), and not the scheme as a whole).

It was also noted that the class of persons of which A formed part was precise, limited and easily identifiable (unlike in MA where a broad class was in issue), therefore the Secretary of State could not simply rely on MA’s distinguishing of Burnip to demonstrate justification:

“Burnip obliges us also to decide that the Secretary of State was not entitled to decide that the better way of providing for A and those in a similar position was by way of DHPs, even though that would be a more flexible approach.”

As for SR, the problem with the justification argument for the Secretary of State was the fact of the difference in treatment found in Regulation B13 between accommodation needed for carers of disabled adults and accommodation needed for carers of disabled children:

“…it seems to us very difficult to justify the treatment within the same regulation of carers for disabled children and disabled adults, where precisely the opposite result is achieved; provision for the carers of disabled adults but not for the carers of disabled children…”

The Court found that the discrimination in each case was not justified by the Secretary of State.

Public Sector Equality Duty
The PSED argument – that in A’s case there had been no regard to the impact of Regulation B13 on female victims of domestic violence – was rejected despite there being no mention in the Equality Impact Assessment undertaken by the Secretary of State in June 2012 about women who were the subject of domestic violence or those within Sanctuary Schemes:

“It is clear that the Secretary of State did address the question of gender based discrimination.  Those within the Sanctuary Schemes who would be adversely affected by Regulation B13 were in fact few in number…When the group was identified, the position of those in Sanctuary Schemes that were adversely affected was addressed by the provision of DHPs.  Those so affected were those with the need for a safe room and those in accommodation which had been adapted and from which it was not reasonable to move.”

Is that the end?
The simple answer is ‘no’. Permission to Appeal was given to the Secretary of State and, in A, on the PSED issue to the appellant and EHRC, with a view to it being heard with MA in March 2016 (though that is a matter for the Supreme Court).

Click here to read the judgment in full.