In Burnip v Birmingham CC, Trengove v Walsall MBC, and Gorry v Wiltshire C [2012] EWCA Civ 629, the Court of Appeal considered whether the application of the bedroom rule in the housing benefit regulations as regards private rented accommodation discriminated against those who needed an extra bedroom for a carer or because their children could not share a room as a result of disability (see here for our discussion of the Upper Tribunal decisions).  The Court held that it did so discriminate and they were spot-on (in my view at any rate) in extremely careful, sensitive judgments notable for their dismissal of discretionary housing benefit payments as a justification for the rule (and the case also puts me in mind of the excellent work of my old mucker, Emma Lawrie at Southampton Uni, on the haphazard approach taken by the courts to claims in respect of bright line rules).

The bedroom rule is a “bright line rule” contained in Reg 13D(3) of the HB Regs 2006 which entitles HB claimants to one bedroom for each of the following: a couple, a person who isn’t a child, two children of the same sex, two children who are less than 10 years old, and a child.  In Burnip, and Trengove, the applicants had been assessed for DLA as requiring day and night care from another person.  However, there was no provision in the bedroom rule for an extra bedroom for a carer.  [Ms Trengove’s claim was continued after her death by her personal representative]  This rule has been changed from 01.04.2011 so that carers requiring a bedroom can be taken into account, but these claims related to periods before then.  In Gorry, two of Mr Gorry’s children, both girls, had (different) disabilities which meant that it was inappropriate for them to share a bedroom.  The rule change after 01.04.2011 does not apply to persons in Mr Gorry’s case so the judgment will have a continuing significance in such cases.

The questions were whether the bedroom rule was discriminatory under Article 14 of the European Convention; and, if so, whether there was any objective and reasonable justification for their discriminatory effect.  They agreed with each other although Kay LJ gave the lead judgment on the former, answered in the positive; and Henderson J gave the lad judgment on the latter, answered in the negative.

On the former, the appellants’ case was that the rules had a disparate adverse impact on the disabled or fail to take account of the differences between the disabled and the able-bodied.  The shortfall for these applicants was significantly greater than for other applicants because their HB was based on one room less than their objective needs.  Alternatively, drawing on Thlimmenos v Greece (2001) 31 EHRR 15, the right is also violated “when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different”.  The Court held that discrimination was established on the basis of either approach.  It seems to break new ground on the latter, as Kay LJ put it (at [18]):

Whilst it is true that there has been a conspicuous lack of cases post- Thlimmenosin which a positive obligation to allocate resources has been established, I am not persuaded that it is because of a legal no-go area.  I accept that it is incumbent upon a court to approach such an issue with caution and to consider with care any explanation which is proffered by the public authority for the discrimination.  However, this arises more at the stage of justification than at the earlier stage of considering whether discrimination has been established.  I can see no warrant for imposing a prior limitation on the Thlimmenos principle.

Kay LJ then went on – and this is, I suspect, properly obiter (see [19]) but significant – to suggest that the UN Convention on the Rights of Persons with Disabilities could have been used as as an aid to the interpretation of Art 14 so that, if its meaning had been elusive or uncertain, that uncertainty would have been resolved in favour of the appellants (at [22]).

So, there’s a lot of assistance there for future claimants/appellants where discrimination on the grounds of disability are pleaded.

We then come to justification and I really must applaud Henderson J’s meticulous examination of the benefits claimed by the appellants in the round.  He noted, first of all, that this was not a case where “very weighty reasons” were required as it was a case of indirect discrimination or failure to make an exception from a policy or criterion of general application, especially where social policy questions were in issue (at [28]).  Mr Burnip was entitled to incapacity benefit, DLA, and a student loan, in addition to his HB.  His weekly income was £288.09.  For hb purposes, DLA is disregarded; his reckonable income exceeded the applicable amount by £12.25; his maximum eligible rent, based on entitlement to one edroom, was £103.85, which was reduced by 65% of £12.25 (application of the taper).  In short, he was entitled to £95.89 pw for hb; his rent was £155.77 pw.  He received a discretionary housing benefit payment intermittently, it did not cover the shortfall or the difference between the one and two bedroom rate, and there were periods when he received nothing at all.

Henderson J made three crucial points: (a) incapacity benefit and DLA are designed to meet ordinary living expenses and not intended to meet housing needs – that is HB – so, it would be wrong in principle to regard “those 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” ([45]); (b) discretionary housing benefit payments were not a complete or satisfactory answer to the problem that he needed two bedrooms but was assessed on the basis of one bedroom only because they are (i) discretionary, (ii) payable from a capped fund; (iii) could not be relied on to meet the difference between one/two bedroom rates; and (c) the difficulty in finding suitable accommodation and the probable need for adaptations mean that it is likely to require a long-term commitment for which there was a need for “… a reasonable degree of assurance that he will be able to pay the rent for the foreseeable future, and that he will not be left at the mercy of short term fluctuations in the amount of his housing-related benefits” ([47]).  The same reasoning held good for Ms Trengove and for Mr Gorry.

The government seems to rely on discretionary housing benefit payments every time it reduces the applicable amount or makes other deleterious changes to the rules, and this case should be a salutary lesson to them that they cannot simply rely on that before the courts.

More generally, Henderson J said that the kinds of considerations which allowed the Court of Appeal to uphold discriminatory rules against persons with disabilities in the immigration context – AM (Somalia) at [29], Kay LJ, and [64]-[72] – were not relevant here where “we are here concerned with a benefit (HB) the purpose of which is to help people to meet their basic human need for accommodation of an acceptable standard” ([64]).  He went on to say that the exception here is for a small category of persons (“relatively few in number, easy to recognise, not open to abuse and unlikely to undergo change or need regular monitoring”: [64]), so that the cost and resource implications would be modest.  Finally, as Parliament has now legislated for cases of the Burnip/Trengove variety, at a time of economic hardship, should “… be taken as recognising both the justice of such claims and the proportionate cost and nature of the remedy” ([64]).

The Court granted a declaration by way of relief, leaving it to Parliament to resolve the problem.