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Preferring Burnip: Discrimination without justification


Rutherford & Ors, R (On the Application Of) v Secretary of State for Work & Pensions [2016] EWCA Civ 29

The Court of Appeal tackles the bedroom tax and discrimination again, and, a year on from MA & Ors, there is quite a difference.

The two joined appeals here, from negative judicial review claims, were by Rutherford and A. Both were cases alleging unjustified discrimination in the operation of the bedroom tax regulations.

The facts are in our earlier notes on Rutherford here and (more sketchily) on A here (I’ll say more about A below). I urge you to read the facts in the Rutherford post for a real understanding of the situation.

The judicial reviews in both Rutherford and A failed, on the grounds that while there was Article 14 convention rights discrimination, the availability of discretionary housing payments (DHP), together with central govt funding and guidance, were sufficient to amount to a justification of the discrimination, in particular because DHPs were actually in payment to both claimants.

As we will see, things went rather differently in the Court of Appeal.

The claimants’ grounds of appeal were:

Both cases were close to Burnip [2012] EWCA Civ 629 than to MA & Ors, as there were clear, narrow classes of situations involved, easily identified and prospectively easily exempted by regulation. Admitted Article 14 discrimination could not be justified, as per Burnip.

The situation of A – the panic room – had not been expressly considered in the making of the regulations. A argued a failure by the Secretary of State to obtain and consider evidence on the impact of the policy on victims of gender based violence, thus a failure under the public sector equality duty.

In the Rutherford’s situation, there was no good reason why overnight carers for adults should result in an exemption for the needed room, but that an overnight carer for a child should not have such an exemption. This was a failure to act in the best interests of the child (arising from the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities).

In a relatively short and quite brutal judgment, the Court of Appeal found:

While it was equally bound by MA & Ors and Burnip, it was also bound by the way MA & Ors had distinguished Burnip, as at 71-75 of MA. This was principally on the question of identifiable, narrow classes of individuals as against the ‘broader category’ of disabled persons in MA, which “may be relatively large, not always easy to recognise, may be open to abuse and (in some cases at least) will require monitoring”.

On A, on Article 14:

43. A and those in a similar position to A, who have suffered from serious violence, require the kind of protection offered by the Sanctuary Schemes in order to mitigate the serious effects of such violence and the continued threats of such violence. It cannot seriously be disputed that A and those in a similar position, who are within the Sanctuary Schemes and in need of an adapted “safe” room, are few in number and capable of easy recognition. There would be little prospect of abuse by including them within the defined categories in Regulation B13 and little need for monitoring. Moreover, with careful drafting, Regulation B13 could be amended to identify them as a discernible and certain class.

For these reasons, A’s position was not distinguishable from the reasoning in Burnip – each of the reasons for doing so given in MA were countered directly.

49. In MA, the court distinguished Burnip on the grounds we have mentioned, each of which is specifically not applicable to A’s case. But the question is whether the other reasons given in MA for the justification of the discrimination would allow us to depart from Burnip, or whether, however much those factors might apply in this case, the similarity between A’s case and Burnip is such that we would not be justified in deciding it differently.

This left the issue of whether DHPs were sufficient to show that the discrimination was not ‘manifestly without reasonable foundation’.

A was receiving DHP. In addition the Secretary of State pointed to the further central funds for DHPs and the DWP Guidance. However,

54. In these circumstances, whilst we saw great force in the Secretary of State’s arguments, which we subjected to serious scrutiny, we feel constrained not to accept them. We acknowledge in particular that DHPs are discretionary, but that that discretion has to be exercised lawfully and in accordance with the guidance issued by the Secretary of State. If they were to be withheld inappropriately, the decision would be subject to review. We acknowledge that the evidence shows that the DHPs would cover the full deficit in Housing Benefit. We acknowledge that, even though the fund for DHPs is capped and may in theory be insufficient, there is no clear evidence that it will be; on the contrary, so far it has been sufficient. Thus, the evidence is that A has received what she would have received had those in her position been brought within a defined class in Regulation B13; she has not been disadvantaged. But that was the position in Burnip, and the same justification was not accepted.

55. 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.

56. In these circumstances, we have concluded that the appeal in A must be allowed on the ground that the Secretary of State has failed to show that his reasons amount to an objective and reasonable justification for the admitted discrimination in Regulation B13.

A therefore succeeded in the disability discrimination Article 14 claim, the admitted discrimination could not be justified.

On the PSED argument:

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. It was not in the circumstances a breach of the PSED to fail to identify in the Equality Impact Assessment this very small group of those within the Sanctuary Schemes who had a need for an extra room; this was a very tiny and specific group.

The appeal on the PSED issue failed.

On the Rutherford appeal, as well as the Burnip narrow class issue, there was the further issue of treating children differently (and worse) than adults. R pointed to the Secretary of State’s own argument and evidence on the Carmichael case in MA & Ors, as per the Master of the Rolls:

“I do not accept that the differential treatment of adults and children is irrational or that there is no objective and reasonable justification for it. The best interests of children are a primary consideration … For that reason alone the Secretary of State was entitled to decide to provide for a greater degree of protection for children than for adults who are in the materially similar situation of having a disability related need for an additional bedroom.”

However in this present case, the Secretary of State argued that

primary consideration had been given to the best interests of the child in formulation of the overall policy; there was a proper justification for treating the accommodation needed for carers of disabled adults and disabled children differently and in any event DHPs would be made in all appropriate cases, as had happened in the case of W.

The Court of Appeal found otherwise:

72. It is clear from the decision in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250 and in particular paragraphs 39-40 that the Secretary of State should have had specific regard to the best interests of children in the position of W as a primary consideration when devising the Regulations. The importance of the way in which the best interests of children should have been taken into account was underlined in the way in which the Master of the Rolls approached the case of Mrs Carmichael in MA, as appears from the passage to which we have referred.

73. On the evidence before the court justifying the different treatment in Regulation B13 of accommodation needed for carers of disabled adults and accommodation needed for carers of disabled children, the Secretary of State did not address how the distinction could be justified by reference to the best interests of a child as a primary consideration. He justified the distinction between making provision for a bedroom for disabled children but not for disabled adults by reference to the best interests of the child and explained the different treatment on that basis. On that basis, 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. In this context, moreover, the argument based on the promotion of independent living for adults, whereas children can be cared for within the family, has little purchase. We accept that DHPs were intended to provide the same sum of money, but we are not persuaded that this justifies the different treatment of children and adults in respect of the same essential need within the same Regulation, as neither the Regulation nor the policy behind the Regulations addressed the best interests of the child as a primary consideration. Moreover, the evidence of the two charities set out at paragraph 25 shows that the Secretary of State cannot in the case of the need for accommodation for the carers of disabled children demonstrate that DHPs will always be available. Furthermore it is regrettable that the position of carers for disabled children is not expressly dealt with in the Guidance which addresses the position only where there is specially adapted accommodation.

Rutherford therefore also succeeded on the Article 14 discrimination issue, with the discrimination being without reasonable justification, either by DHP or in the failure to have the best interest of the child in mind.

On remedy, no order was made, given that the Secretary of State had sought and been granted permission to appeal to the Supreme Court. The proposal was that the appeals should be heard with that in MA & Ors in March this year.

The Supreme Court has since confirmed that this will happen.


There was always this tension between the judgments in Burnip and in MA & Ors, one that the decision on the Carmichael case in the MA & Ors judgment glossed over, (it being at least arguable that the Carmichaels’ case – partners unable to share a room by reason of disability – would also meet the Burnip criteria like A and R). It was, perhaps, a consequence of bringing a broad, multi-claimant case.

Courts and tribunals have followed MA as if the ‘broad class’ of disability automatically contained all cases of disability, with the DWP pointing out where MA & Ors claimants contained individuals with similar disability related needs. Given the fog created by the Carmichael decision in MA, this approach by courts and tribunals was understandable.

However, the Burnip judgment was not dead, just sleeping. Where a situation meets the criteria – a discernible and certain class, few in number, capable of easy recognition, not open to abuse or requiring monitoring – it is now arguable that Burnip applies, including the position on DHP not being sufficient to remedy the discrimination.

Further, it is clear that the court in this case was happy to hear and accept evidence on the operation of DHP in practice.

There was additional evidence in relation to the position of those who were in a similar position to SR and W:
(i) In a statement made in April 2014 by Emily Holzhausen, the Director of Policy at Carers UK, there were details of a case, which had been referred to Carers UK, where a single mother with a disabled child who had spinal surgery needed round the clock care; there was a spare room so that an aunt could stay on a regular basis. DHPs were awarded until March 2014, but further DHPs were refused from April 2014 and the claimants were told that an appeal was unlikely to be successful.

(ii) In a statement made in April 2014 Nicola Whiteman, the policy and investment manager of the Papworth Trust, a charity for the disabled and a social landlord, stated from information they had gathered that DHPs were not working in the way in which the Secretary of State intended in relation to disabled children.

The Secretary of State acknowledged that evidence, but submitted that there was nothing that called into question the overall adequacy of the provision and the funding of DHPs.

That evidence led to the conclusion that “the evidence of the two charities set out at paragraph 25 shows that the Secretary of State cannot in the case of the need for accommodation for the carers of disabled children demonstrate that DHPs will always be available.”

As I noted in relation to the Rutherford JR judgment, whether DHP is actually available, to specific claimants, is an issue, not just the broad brush of the DHP funding and scheme as a whole.

These then are two issues of immediate application to First Tier Tribunal and Upper Tribunal appeals (subject to any stay pending the Supreme Court decisions).

And what of the Supreme Court?

Well, there is a suggestion of a likely line of argument from the DWP in this judgment. At 52:

The factors relied on in MA are relied on again here, but the Secretary of State has in this case placed particular reliance on the fact that A and those in her position were receiving and would receive DHPs that meant that they always had the full amount that would otherwise have been payable as Housing Benefit. In other words, the scheme as a whole comprising Housing Benefit and DHPs was not actually discriminatory at all in its overall effect. In argument, we suggested to Mr Eicke QC that this approach might have led him to deny the existence of discrimination in the first place, rather than providing appropriate justification for that discrimination. His problem was that in both Burnip and MA, the court had actually decided that the discrimination in question was that contained in Regulation B13, not that occasioned by the scheme as a whole (see paragraphs 3-6 in the judgment of Maurice Kay J in Burnip referring only to the Housing Benefit provisions and not the provisions for DHPs when he dealt with discrimination, and paragraph 47 in MA).

The difficulty with this is, of course, the evidence required to show that DHP did operate in this way, that payments were being received by all those who required them because of their position.

As I noted in evidence to the Work & Pensions select committee, what evidence there is goes to show the opposite.

It is all going to make the Supreme Court decision very interesting. The discrimination is admitted, so I don’t think the Secretary of State can resile from that. So the question was always justification, but there are suggestions in this judgment that a broad brush approach to justification by waving at the DHP scheme may not be enough. And now, the Secretary of State must also argue, in effect, that Burnip was wrong, and that even discrimination against narrow, easily recognisable classes should be justified by DHPs. Oh and that the DWP’s completely contradictory position on ‘best interests of the child’ is somehow resolvable without exempting households with children needing overnight carers from the bedroom tax.

No wonder the DWP folded on the issue of the overall benefit cap discriminating against the disabled by not exempting carers after losing the judicial review. Crude, blanket ‘reforms’ throw up a host of problems (just as the DWP was repeatedly told that they would).

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. Melanie Williams

    There is also the question of those empowered by LAs to make decisions about who should receive DHPs and whether they are properly trained to do so in compliance with equality legislation. Those that have not had disability equality training hold discriminatory views. I have an example of a Housing Benefit officer who considers that it is ‘right that disabled people should pay the spare room subsidy as they received more benefits than able-bodied people’. This same officer said that when they and their colleagues examined details of outgoings on DHP application forms they often noticed that applicants were spending too much on their groceries as they are “probably too busy watching Jeremy Kyle” to shop for and prepare cheaper meals. This same officer also made note of addresses where a more ‘modern car’ was parked outside that may have indicated an ability to fully make up a rent shortfall. Aren’t disabled people (especially those with restricted diets and limited mobility) allowed to eat ready made meals? Or have a nice car?

    • Giles Peaker

      Well the very ‘discretionary’ nature of DHPs means that decision making (and local policy) is very variable.

    • AH

      That really is the problem with DHPs. The disabled person/DV victim can no longer rely on an entitlement to the benefit they require to meet their needs – they are subject to constantly making repeat DHP applications (probably every 6 months), which are dependent on a very local exercise of discretion.

      I knew of a DHP claim many years ago which became somewhat notorious after it emerged that the panel considering the claim turned it down on the basis that the applicant had submitted supermarket receipts, which evidenced that they had once spent a tenner on a whole frozen lobster.

  2. Joe Halewood

    The CoA simply got there premise factually wrong in the Rutherford case.

    A room for an overnight carer is NOT available to all adults, it is conditional on the adult being the tenant or the tenant’s partner. It is not available for an adult dependant or any adult other than tenant or tenant’s partner.

    For example if Warren had been 25 and not a teenager the existing HB regulations could not have granted a room for his overnight carer.

    So either this has legal implications in getting this false premise wrong or it also means that ANY adult in a household is entitled to a room for an overnight carer in the bedroom tax not just the tenant or tenant’s partner – which I suspect it does not mean.

    The A4 of 2012 HB circular says:
    “The new rules allow one bedroom for:
    – every adult couple (married or unmarried)
    – any other adult aged 16 or over
    – any two children of the same sex aged under 16
    – any two children aged under 10
    – any other child, (other than a foster child or child whose main home is elsewhere)
    – a carer (or team of carers) who do not live with you but provide YOU OR YOUR PARTNER with overnight care”

    The bedroom tax regulations limit a room for an overnight carer to the tenant or tenants partner and the CoA got their basic facts and premise wrong in Rutherford

    • Giles Peaker

      Joe, the CoA was not saying any adult and didn’t get the premise wrong. The point where that is being discussed is differential treatment of adults and children, which was right at the heart of the argument.

    • Jayson carmichael

      I suppose they will have to look at MAs skeletal lay this time too otherwise there was no point in staying the upper tribunal , if Rutherford stands then we might benefit at upper tribunal as a singular case later on

  3. jayson carmichael

    Theory i’m coming too is that the Govt is Appealing Rutherford as they will have to face the child/adult discrimination too in MA, OUR CASE. As its a central block in MA hearing. And its broader case.

    Anyone any thoughts on that??

    • Giles Peaker

      Well, it is the reverse in that case, as noted in this judgment. There are a host of reasons why they have to appeal this judgment, not least that it would leave the way open for a lot of individual ‘clear, narrow case’ challenges.

  4. Joe Halewood


    Para 18 under “Facts”

    18. Until 1 April 2013 SR received Housing Benefit which covered the full rent on the home. From that date it was reduced by 14% as a result of the application of Regulation B13 which made express provision for the need for accommodation for overnight carers of a disabled adult but not for overnight carers of a disabled child. After an initial problem with the payment of DHP (described in the evidence before the court and summarised at paragraph 15 of the judge’s judgment), DHPs have been made covering the shortfall.

    The CoA does say any adult can have an overnight carer in the bedroom tax and that is a non factual premise

    • Giles Peaker

      The judgment quotes B13 in full. Again, the difference between adult and child is what is in issue. It is not in any way a finding about adults needing carers in general and it does not have a material impact on the reasoning of the judgment. The absence of saying “(in some circumstances) ” after each mention of adult is neither here nor there.

    • Giles Peaker

      ‘Express provision’ and then they quote B13 in full. It is quite true to say there is express provision for accommodation of overnight carers of disabled adult. Indeed there is. It does not say all disabled adults. You are over-reading, Joe – and in any event, because it is not a finding of fact or a key element of the reasoning, it is neither here nor there.

  5. Paul Stockton

    It will be interesting to see if the DWP pick up on the idea mentioned in para 52 that the scheme overall is not discriminatory. They may have had to concede that it was at the CA (because of the earlier CA cases) but all bets are off at the SC, if that court wants to hear argument on that point. But if they argue that, or if they argue that the scheme overall is discriminatory but justified because of DHPs, they will surely have to concede that there are really no circumstances like those afflicting the Rutherfords or A where a DHP could rationally be refused. In effect there would be a category of DHPs where the payments are not discretionary at all. The evidence that DHPs are in fact being refused in this kind of case is I would think likely to carry a lot of weight with the SC, to judge by the demolition of the DWP assumption by actual evidence in the DLA case of Cameron Mathieson -v- SSWP.
    Also, the government are running a big risk that the SC will revisit the “manifestly without reasonable foundation” test, and decide it’s too tough.

    • Giles Peaker

      I agree with all of that, though I’m not sure that the concession on discrimination was as a result of earlier CA cases. I’d need to track back, but I have a sense it was always a concession. And it would remain discriminatory even under a ‘whole scheme’ view, even if just the additional burden of having to reapply for DHP every 6 months or 12 months. Add in the varying criteria applied by different local authorities for eligibility – very different from HB eligibility – and there is no realistic prospect of DHP eliminating discrimination. And, as you say, that is even before you get to evidence that DHPs are being refused.

      I agree on the justification point too – what came out of both the Rutherford JR and this Court of Appeal was an increased attention to whether DHPs were actually in payment (and likely to remain so), rather than the broad hypothetical availability of them. I made the point about an ‘obligatory discretion’ on the Rutherford JR.

      Also agreed on the risk on Thlimmenos/indirect discrimination justification test. But the worry is that the SC gets too bound up in the overall picture and the MA position on not being able to adequately exempt broad and imprecise classes. Perhaps this case going to them at the same time will help with that.

  6. jayson carmichael

    Basically boils down to it shouldnt have been implemented if its discriminatory against even a particular group, so maybe whole thing should be overturned at supreme court. We won in lower tribunal on similar grounds to Rutherford, it still stands soo far but AS WE ARE PART OF MA then our position should be reflected in judgement in MA , so far Judges have just ignored our particulars as individual case in appeal court. I think im getting to my right line of thought on this to go forward with to court now

  7. Peter Barker

    I do hope that the Supreme Court will be aware that there are plenty of situations IN THE HB SCHEME where a local authority has to exercise a bit of discretion or judgement (with an “e” here, right?) in the absence of “bright lines”: whether the rent for supported accommodation is unreasonably high, whether it would be a good idea to pay HB to the claimant’s landlord and, more directly on point, where an adult requiring overnight care does not receive DLA(c) etc but in the Council’s view they have still made a compelling case for an extra room. All of these issues lead to decisions within the HB scheme, with a right of appeal on the facts to a Tribunal. You don’t always have to have bright lines. The reason why the government wants to cover all these additional bedroom scenarios with DHPs is so they can limit the cost and wash their hands of it – if you write the discretion/judgment into the Regs the cost to central government becomes demand led and there is no financial disincentive for local authorities to say yes all the time. Nothing to do with local authorities being best placed to make these judgements, no artificial lines etc.



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