The headline here, as has been widely tweeted/flashed etc, is that the challenge to the bedroom tax contained in Regulation B13, Housing Benefit Regulations (both generically and specifically in relation to households with a disabled person) was unsuccessful in the Divisional Court, R (MA) Secretary of State for Work and Pensions [2013] EWHC 2213, but the Court came close to granting injunctive relief against the Secretary of State to make regulations bringing Burnip/Gorry into effect, as opposed to relying simply on a Circular. The DWP had argued that they were entitled to rely on guidance by way of Circular “pending a decision on whether and at what point in time to introduce regulations” (Laws LJ’s emphasis). On that point, rarely have I read such strong words as appear in Laws LJ’s judgment at [91]-[92]. That is an ouch moment for the DWP which, I bet, will not be widely reported, so let me headline the quote here: “The Secretary of State has no business considering whether to introduce regulations to conform HB provision with the judgment in Gorry. He is obliged to do so.” The only thing which stopped injunctive relief was that their drafting was “under consideration” after 14 months (!).
As for the rest of it, we are left with a quandary: how can a challenge to the bedroom rules in the PRS be successful on the basis of Article 14, Sch 1, Human Rights Act 1998 (Burnip), but not the similar rules in relation to the social sector (MA)? More specifically, why was the discretionary housing payments system regarded by the Court in Burnip as insufficient to justify the policy in relation to the PRS but regarded as sufficiently robust in relation to the social sector? These questions and more are likely to be canvassed in the planned appeal.
The judgment in MA contains a wealth of information about the decision-making process that lead to the bedroom tax policy and its exclusions, as well as the significance ascribed to DHP. The principal point for the Divisional Court which emerges from that process is that, although consideration was given to exempting accommodation which had been specially adapted, such a definition “would not be workable. … It would either be too broad brush or leave out many other, equally deserving cases” ([22]). Park that thought for the moment.
It had to be clear that there was Article 14 discrimination, if for no other reason that to hold otherwise would be entirely contrary to Burnip. The question canvassed by Laws LJ (who gave the only reasoned judgment, with which Cranston J agreed) was which category of discrimination it fell into. There are three categories: direct, indirect, and Thlimmenos discrimination (a failure to treat differently persons whose situations are significantly different). The point of this somewhat arcane distinction is that the process of justification is different for each:
Where the discrimination is direct – where a rule, practice or policy prescribes different treatment for persons in like situations – it is the rule itself that must be justified: the difference in treatment. Where the discrimination is indirect – where a single rule has disparate impact on one group as opposed to another – it is the disparate impact that has to be justified. With Thlimmenos discrimination, what must be justified is the failure to make a different rule for those adversely affected.
Despite Martin Westgate’s argument that the bedroom tax involves direct discrimination, Laws LJ regarded it as being Thlimmenos discrimination. This was not a point taken in Burnip (in which Maurice Kay LJ rather fudged the question, regarding those Regs as creating indirect and/or Thlimmenos discrimination. Laws LJ says that there is a close alliance between the two types, but his citation of Elias LJ’s judgment in AM(Somalia) (esp at [44]-[46]) rather undermines that “close alliance”. True, they are both based on the single principle of consistency, as Laws LJ points out, but the point is that the process of justification is different. As Elias LJ put it, with Thlimmenos discrimination, “it is accepted that the rule itself may serve a legitimate function and be capable of justification in most circumstances but it is contended that a different rule should be adopted for the claimant and those in a similar situation, specifically ameliorating the effect resulting from their special features or characteristics”.
The point made for the Secretary of State was that the claimants’ could not make out Thlimmenos discrimination because of the difficulties in defining which HB claimants are unable to share a bedroom due the nature and extent of their disabilities. Laws LJ rightly used the “so what?” position in his judgment, in fairly robust terms (at [52]-[53]). As he put it:
But the law’s response, even in the context of national economic strategy, must not be to consign the many disabled people who will suffer real difficulty to the outcomes of an unfettered political discretion. …
Now here, in my judgment, there is no precise class of persons – those who need extra bedroom space by reason of disability – which can be identified in practical and objective terms and sufficiently differentiated from other groups equally in need of extra space but for other reasons. But the common law would not for that reason absolve the Secretary of State from the duty to consider and take account of the effects of his prospective policy on the disabled. So also Article 14 is not disapplied. The case remains one where the policy has markedly disparate effects between groups of persons, even if the groups have no sharp edges. Because they have no sharp edges, it is a case in which, in Lord Nicholls’ words, “the position is not so clear”; but not one where Article 14 does not apply at all. What Article 14 gives in those circumstances is an obligation upon the Secretary of State “to see that the means chosen to achieve [his] aim is appropriate and not disproportionate in its adverse impact”.
So, we come back to the question of justification. In Burnip, of course, the DHP was regarded as a sideshow at best, and the Court made some pretty caustic observations about the Secretary of State’s reliance on it. The question here, though, was whether the bedroom tax policy is “manifestly without reasonable foundation” because the bedroom tax involved a question of high policy – the Secretary of State relied on Humphreys v HMRC [2012] 1 WLR 1545, which, in turn, had applied Stec v UK (2006) 43 EHRR 1017 to argue for a different test depending on the ground of discrimination and the type of policy. Martin Westgate’s attempt to argue that the bedroom tax is not a matter of “high policy” was unsuccessful (at [58]). The state therefore had a wide margin of appreciation, particularly because of the nature of the discrimination.
We then have the DHP argument. Here, the court had submissions on behalf of Birmingham CC which addressed the inadequacy of DHP to meet the shortfall caused by the bedroom tax (as to which, see also @speyejoe’s recent blog on this about Liverpool). The key points made by Birmingham CC were that DHP could not make up the difference caused by the cap; insufficient funds had been made available to enable DHP to have the necessary impact; there will be a rise in numbers who qualify as homeless which may actually increase HB expenditure because of the use of temporary accommodation not subject to the tax (well, it will increase it, but this is the prosaic language of the court).
Now Laws LJ takes something of a queer turn, for he effectively aligns the public sector equality duty with proportionality at this point. As he puts it, “Both demand an informed and conscientious appreciation of the difficulties facing the persons or group adversely affected by the prospective measure. If that has been done, the PSED duty will have been fulfilled; and, most likely, a proportionate decision arrived at” ([69]). In my view, it is this alignment that throws him off the scent. But, he is right that both require proper consideration to the discriminatory effects of the Regulation; if such consideration has been given, then the policy will only be struck down if it is manifestly without reasonable foundation (and, as you might sense, that will be a pretty high threshold).
Before considering how the court deals with this ground, there is an important discussion about the effects of UN Conventions, especially the Rights of Persons with Disabilities. This had been a significant background factor (at least) in Burnip. Here, Laws LJ makes a constitutional point about incorporation into UK law – the ECHR is part of UK law because it has been incorporated by Statuted; the UNCRPD has not been and is only relevant as an aid to statutory interpretation if the the relevant rule is unclear.
Kate Markus, for the EHRC as an intervener, argued that the Secretary of State had not complied with the public sector equality duty, and summarised six areas where due enquiry had not been made. That might have been a strategic error, because Laws LJ argued that they attempt to persuade the court into micro-managing the policy-making process (which is impermissible): “Ms Markus’ case on the facts, though she would certainly disavow it, looks very like a list objections to the policy under the guise of a litany of matters left unconsidered. That is all but an assault on the outcome – the terms of Regulation B13 – rather than the process” ([86]).
As regards DHP, the Secretary of State submitted that “reasonable provision has been made and the Secretary of State is not obliged to provide for something akin to an indemnity against the needs of every affected disabled person” ([85]), which can hardly be the most savoury justification of an SoS. The court, however, agreed:
In my judgment the [public sector equality duty] was fulfilled; and the effects of the HB cap were properly considered in terms of the discipline imposed by the requirement of proportionality. In those circumstances 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, will constitute a proportionate approach to the difficulties suffered by such persons in consequence of the policy unless it was manifestly without reasonable foundation.
And the policy was not without reasonable foundation. The fact that one could not identify with precision the class of person who need an extra bedroom by reason of disability was a powerful factor here (if not on whether there was discrimination). This is what distinguished Burnip:
In Burnip (or rather Gorry) the Court of Appeal was faced with a discrete group, exemplified by Mr Gorry’s daughters: families with children who could not share a bedroom by reason of their disabilities. The court concluded that such persons suffered unlawful discrimination by the application of the private sector provisions equivalent to B13. But I do not accept that that approach can be applied here, where there is no such discrete group. The Secretary of State had, of course, nevertheless to consider carefully what steps to take in relation to disabled persons, and others, who would or might face real difficulties arising out of the cap – even though they could not practically be defined as a class. His provision of extra funding for DHPs and advice and guidance on its use cannot be said to be a disproportionate approach to the difficulties which those persons faced.
So, this case is on its way to the Court of Appeal. Some brilliant minds are applying themselves to this significant aspect of policy, and I’d just like to h/t one of them Caoilfhionn Gallagher (who has been really helpful in my ongoing academic work on this policy).
The reason for the difference to Gorry/Burnip is that Laws finds it is the “Greek” – I will not spell it right!) form of discrimination rather than indirect. As such all the SS had to was justify the policy. The policy was justified on the basis that it was just too damn hard (to use my words) to draft, and too costly to implement, a regulation that helped the people they wanted to help and not those they didn’t. This reason was not “manifestly without foundation” and so the SS won. The fact that Laws didn’t think much of the Claimant’s response to his question: well how would you draft the regulation seemed to have been what clinched it for him.
However, that must be rubbish surely? Benefits legislation is the most complicated legislation in this jurisdiction (perhaps tax is equally complicated, but I don’t do posh law so don’t know). The whole point of the DWP is to design legislation that does just that. They’ve managed before and I dare say they will manage again. How on earth can they – of all departments – hide behind that justification?
The real answer is that this Government just doesn’t want to legilslate at all (see what they did to the social fund and the whole “localism” agenda). That is hardly a good defence to justification. The cynic in me just sees this as the man passing the buck (again) to the LA. If LAs have to administer the DHPs it will be their fault when someone with a horrible sob story is on tv and being evicted. We can always say we gave an amount of money that sounds like a lot (but isn’t) and claim we gave guidance which said this shouldn’t happen and left it to the LA to make the decision.
Not our fault guv. It was that horrible local authority. Honest.
I do hope the CA see through that. Hopefully Maurice Kay will do it. As an aside, surely the Claimants need to start writing their own regulation for the CA based on the aims of the DWP? If they can do that surely that would kill this argument?
On Spiked I have argued that in a democracy, parliament, not the judiciary must have the last word on policy:
http://www.spiked-online.com/newsite/article/a_judicial_icoup_detat_i/13872#.UfjkSNI3vTo
In theory, opponents of your position are in zugzwang. However, in practice the “democracy” you promote is an illussion. The idea that “the people” have sovereignty through parliament is self evidently not the case. Pretending that “the people” do exercise such control simply maintains a status quo where propaganda sits in place of policy.
Jon, generally I agree with that proposition, but not in this case.
First, Parliament is not legislating for the policy it is the Minister. Second, the executive – like any other body – is amenable to judicial review. Third, the executive is bound by the ECtHR as a result of what Parliament legislated for. Fourth, Art.14 of said treaty says you can’t discriminate in this way without justification. Fifth, this policy has been poorly implemented and the justification for the discrimination just does not wash; it has no real sound basis other than the Govt. choosing to pass the buck and the angst to local authorities.
Indeed, it’s pretty simplistic. The Human Rights Act 1998 is an Act of Parliament like any other. If it is binding on Parliament it is because our representatives still feel it should be binding on them. The judiciary is only exercising powers granted to it by the legislature.
I would also point out that there are many, many democracies in the world, some arguably far more democratic than the UK, who feel that the legislature absolutely should be bound to certain core restrictions that should only be breached if the support for it is overwhelming. *cough*writtenconstitution.*cough* Whether you agree with the principle or not there are clearly many ardent democrats who believe that tyranny of the majority (or simply badly thought out legislation) is a thing.
A very sad day for equality, justice and compassion.
It is just an other example, in a very long list, of a government policy ( like it or not) being mired in the sucking mudpit that is the Civil Service. Truly its not that hard to write the policy and an afternoon round a table should be long enough to thrash out the exemptions and applicable criteria. Give the scribes aweek or so to knock them into shape and hey presto. Are the Civil service that inable themselves or are they frustrating implementation through bureucracy….?
Just playing Devil’s Advocate, here, (and putting aside the Government’s main aim, to cut the welfare state), why is the fundamental principle of the ‘Bedroom Tax’ so wrong? In my experience I have seen too many clients and their families who are living in overcrowded conditions. I also see in a personal capacity too many people under-occupying. The most notable group who are under-occupying are the elderly whose children have long-since flown the nest and refuse to consider down-sizing. (my mother-in law is 85 alone in a 2 bed flat and resolutely refuses to consider moving into Elderly Persons dwellings at the same time as continuously griping about the noise caused by the younger families in the block!) And they are exempt! Clearly a political decision given the size of the grey-vote.
It may be the case in London that there are too few smaller properties for people to downsize into, but I’m not sure that is the case elsewhere.
As you point out – Elderly people are exempt.
In terms of out of London, I think the bedroom tax has more impact rather than less.
IN London generally people wont get allocated more bedrooms that they ‘need’ (and will be crammed into all kinds of crap accommodation)
OUT of London, in big northern cities with lots of high rises, for many years it was recognised these were not suitable for households with dependent children –
There are not many households who ‘need’ 2 beds but dont have children except for people with medical needs (see above) or fathers with access to children (who will be subject to bedroom tax because the children reside elsewhere)
So these 2 bed flats would often go to single people –
the very people who get the lowest benefits (JSA £71 per week – now paying bedroom tax and council tax)
and there are FAR less one bed flats as they were historically not very popular
But Nick Clegg stated on LBC yesterday that a number of Councils had eitther not spent and even returned the “transitional” money avialable to them.
Nick Clegg is misleading the public. DHPS were traditionally underspent up until April 2013 when the policy took effect! The figures from April will tell a very different story.How they get away with these lies is a sad indictment of the journalists who allow it to happen. He also keeps insisting that there are 2 million on waiting lists: failing to make it clear that over 80% of these are waiting for one or two bedroom properties, not the larger homes hit by the bedroom tax. This Coalition are brazen in their misuse of statistics and evidence and the general apathy of the media is allowing them off scot free.
I am curious as to why; No argument is being made for discrimination by association in respect of familial carers. If the spare room is being used for such then having to find £14.56 from a weekly allowance of £59, is disproportionate, Further, sleep deprivation has been defined as amounting to torture. Discretionary Housing Payments make no allowance for this focussing on only the disabled person. What happened to the rights of carers.
The position of a couple unable to share a room by reason of one person’s disability was part of the challenge (now failed in the Court of Appeal)
The arguments raised by the claimants in my view raise more questions than answers to that extent I shall submit some possible grounds for appeal.
First, under the provisions of Regulation B13 (4) provides that;
(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.
Does this mean that where the maximum rent is higher than the HB entitlements that an authority can override the rent in appropriate cases to a lesser sum and therefore reduce the HB shortfall? If so we need to ask when this is appropriate, and which particular cases this apparent discretion applies- are there are circulars or guidance applicable.
Second, in my view the courts failed to address the substantive issue in regards to discrimination by virtue of focusing primarily on article 14 thereby eliminating any analysis beyond direct discrimination as observed by Maurice Kay LJ Para 13 ;-
“[t]he case for the appellants is not that the statutory criteria amount to indirect discrimination against the disabled. It is that, in one way or another; they have a disparate adverse impact on the disabled or fail to take account of the differences between the disabled and the able-bodied.”
Further he goes on to add that “The appellants, moreover, relied entirely on Article 14; the Disability Discrimination Act 1995 did not feature (paragraph 7)”.
This is significant since the existence of the Strasbourg court no cases have ever been found wanting for breach of Article 14 to the extent a former court Judge observed how remarkable it was that in no time over the fifty years have any government or their public bodies been found to have discriminate “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.” What’s more it is significant that there is no mention of disability discrimination in the body of the article only reference to ‘national minority’ or as the courts viewed it as ‘other status’.
This short-sightedness has led to the court to readily justify the bedroom tax since the justifications for the policy ie to save £500m is equally application to all social sector claimants. Therein lies the problem, the regulations may apply to all claimants but the impact on some is far reaching than others, in particular those with disability needs as acknowledged in the judgement. By its failure to address the rigours of domestic law on disability discrimination, in particular indirect discrimination as defined by EA 2010 section 19 which defines prohibited indirectly discrimination in the form of any provision, criterion or practice which puts or would put them at a disadvantage without any legitimate or proportionate means, section 20 DDA 1995 adds a further definition as a prohibited ‘condition’, the courts cannot have said to have performed any PSED where it fails to account the impact of such policy of disabled applicants less the likely impact on those with different categories of disability or indeed age or gender with some needing overnight care, adaptations, localised services, support etc, though it admits through documentary papers that it should have made exemptions for disabled categories of applicants (see Para 76 which reads;-
There was.. no analysis of disability-related matters. The Equality Impact Assessment of June 2012 did not indicate the numbers of disabled persons with housing needs which would not be met under the new regime. It did not address the implications of the measure for disabled people, or (in particular) for those with mental and learning difficulties).
This omission is visible by virtue of the above regulation which makes an exemption with “one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care (or in any case where each of them is)”, but not it would appear when it comes to a child. This clear difference and discriminatory practice has been corrected by the BURNIP [2012] EWCA Civ 629 decision. But as the court observed the decision is far from clear as “It does not provide for an extra bedroom in other circumstances, for example, where the claimant is one of a couple who is unable to share a bedroom or where an extra room is required for equipment connected with their disability” Para 28. Therefore, the fact remains in the courts word ‘there was no due regard to B13’s failure to confront the difficulties of those who need larger accommodation, nor to the Regulation’s impact on children’ Para 76.
Third, DHB is neither an answer nor solution to discriminatory policy direct or indirect for a number of reasons. This additional but largely ‘unknown’ support with no right of appeal of £30m is insufficient a sum to account for any displacement, property adaptations and loss or requirement for additional support- disabled people do not have the same access to services or facilities for advice. It also needs to be asked how many properties does a local authority have in which to re-allocate, and what assessment is in place to take individual needs into account (estimated 35000 wheelchair users alone)? That aside how is allocation to take place without sufficient resources or suitable properties, and what of the allocations per se. We have seen local authorities wrongly allocating properties by providing reasonable preference to non- preference under-occupiers than preference overcrowded, which can therefore be challenged. Moreover, in a recent episode on Channel 4 showed how perverse this policy is where a disabled applicant had been forced to downsize from two beds adapted property to one bed leaving his vacated two beds property to a single working person? Is this truly a manifestly rational, objective and justifiable policy, to that extent does it really do what it intends through the EA i.e. having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.”
Four, *Thlimmenos decision is a significant recognition that where a state applies ‘sanctions’ (akin to DDA or EA ‘condition’, ‘criterion’ etc) against people in materially different situations this amounts to indirect discrimination, thus a failure to ‘treat’ differently persons whose situations are significantly different amounts to a prohibited ID. This can only mean in the absence of exemptions of a disability group an individual assessment per case, region by region, town by town only then can we truly measure if the bedroom tax is a manifestly (indirectly) discriminatory policy having an adverse impact on individuals and through legal petitions be able to demonstrate a disproportionate effect per group or category worthy of exemption. This means raising individual grievance through complaints under DDA, EA, Ombudsman scheme, through DPA, FIA requests for statistical facts and figures- determining what disparate impact this policy has on access, services, housing, support, advice, eligibility/ success for benefits including DHB claims in contrast to more able applicants and related matters; challenging rules through appeals and judicial reviews including housing allocations maybe all the way to Strasbourg. In essence the case made out is a call for the right to be treated as an individual, nothing more nothing less.