Case of J. D. and A. v United Kingdom 32949/17 34614/17
The Supreme Court (Lady Hale and Lord Carnwath dissenting) found justified discrimination in imposing the bedroom tax on a woman who, as a result of domestic violence, had had her home treated under the Sanctuary Scheme to include the modification of the attic to render it a “panic room”. (Our report here). The Supreme Court found that this was for a case by case evaluation, not something that required a blanket exemption for a class of people, and there were Discretionary Housing Payments possible.
The European Court of Human Rights, in a 5/2 split decision, has now found that it was not justified discrimination.
The significant parts of the judgment are:
88. (…) as the Court has stressed in the context of Article 14 in conjunction with Article 1 Protocol 1, although the margin of appreciation in the context of general measures of economic or social policy is, in principle, wide, such measures must nevertheless be implemented in a manner that does not violate the prohibition of discrimination as set out in the Convention and complies with the requirement of proportionality (see Fábián, cited above, § 115, with further references). Thus, even a wide margin in the sphere of economic or social policy does not justify the adoption of laws or practices that would violate the prohibition of discrimination. Hence, in that context the Court has limited its acceptance to respect the legislature’s policy choice as not “manifestly without reasonable foundation” to circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality (see Stec and Others, cited above, §§ 61-66; Runkee and White, cited above, §§ 40-41 and British Gurkha Welfare Society and Others v. the United Kingdom, no. 44818/11, § 81, 15 September 2016).
89. Outside the context of transitional measures designed to correct historic inequalities, the Court has held that given the need to prevent discrimination against people with disabilities and foster their full participation and integration in society, the margin of appreciation the States enjoy in establishing different legal treatment for people with disabilities is considerably reduced (see Glor v. Switzerland, no. 13444/04, § 84, ECHR 2009), and that because of the particular vulnerability of persons with disabilities such treatment would require very weighty reasons to be justified (see Guberina, cited above, § 73). The Court has also considered that as the advancement of gender equality is today a major goal in the member States of the Council of Europe, very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention (Konstantin Markin v. Russia [GC], no. 30078/06, § 127, ECHR 2012).
So, ‘weighty reasons’ would be required to justify the discrimination in an establish, non-transitional, scheme.
In the case of A, there were two state schemes in operation, the Sanctuary Scheme, under which A had received the three bed home, and the adaptation to a safe room, which had the purpose of ensuring her safety as a victim of domestic violence, and the bedroom tax, which had the purpose of incentivising ‘downsizing’. The two schemes had contradictory aims and operation.
Given those two legitimate but conflicting aims the Court considers that the impact of treating the second applicant, or others housed in Sanctuary Schemes, in the same way as any other Housing Benefit recipient affected by the impugned measure, was disproportionate in the sense of not corresponding to the legitimate aim of the measure. The Government have not provided any weighty reasons to justify the prioritisation of the aim of the present scheme over that of enabling victims of domestic violence who benefitted from protection in Sanctuary Schemes to remain in their own homes safely. In that context, the provision of DHP could not render proportionate the relationship between the means employed and the aim sought to be realised where it formed part of the scheme aimed at incentivising residents to leave their homes, as demonstrated by its identified disadvantages (see paragraph 102 above).
(The ECtHR had noted the case law, from Burnip and after, on DHPs and whether this could be a long term or adequate substitute for HB entitlement. Lady Hale’s dissent in the Supreme Court hearing on this matter is cited:
Indeed, the appellant does not seriously dispute that Ms A needs to stay where she is. The Secretary of State accepts that she needs to stay in a Sanctuary Scheme and probably in this very house. The justification suggested for the interference, or the discrimination, is the availability of discretionary housing payments to make up the shortfall in her rent. But if the discretionary housing payment scheme is not good enough to justify the discrimination against the [other] households, it is not good enough to justify the discrimination against Ms A’s household either. Its deficiencies were acknowledged in the Court of Appeal’s decision in Burnip v Birmingham City Council  EWCA Civ 629;  PTSR 117, para 46. They are well-summed up by Mr Drabble QC […]: it is discretionary, cash-limited and produces less certainty; it has a stricter means test; it offers different and less attractive routes of judicial challenge; it can be onerous to make applications; and it encourages short term, temporary and conditional awards. For a woman in a Sanctuary Scheme to have to endure all those difficulties and uncertainties on top of the constant fear and anxiety in which she lives cannot be justified. This is not a question of the allocation of scarce public resources: it is rightly acknowledged that public resources will have to meet this need one way or another.”
As a result, discrimination against A was unjustified. Damages of €10,000 awarded.
Meanwhile, the joined case of J. D. – on disability discrimination in respect of the needs of the tenant’s disabled adult daughter given major adaptations to the property – fell at the last hurdle. While the same logic was applied, the ECtHR in the end held
Turning to the scheme as a whole, with reference to the case of the first applicant, the Court finds that whilst it has been acknowledged that any move would be extremely disruptive and highly undesirable for the first applicant, it would not be in fundamental opposition to the recognised needs of disabled persons in specially adapted accommodation but without a medical need for an ‘extra’ bedroom to move into smaller, appropriately adapted accommodation.
In these circumstances, DHPs were a sufficiently weighty reason to accept that the means of implementing the bedroom tax were proportionate to the legitimate aim.
The Court acknowledges that the DHP scheme had a number of significant disadvantages which were identified by the domestic courts, namely that the awards of DHP were purely discretionary in nature; their duration was uncertain; they were payable from a capped fund; and their amount could not be relied upon to replace the full amount of the shortfall (see paragraph 41 above). On the other hand, the scheme had some advantages in that it allowed local authorities to take individualised decisions, which the Court has identified as an important element to ensure proportionality (see a contrario Guberina¸ cited above, § 93). Moreover, the awards of DHP are made subject to certain safeguards, in particular the requirement on local authorities to take their decisions in light of the Human Rights Act and their Public Sector Equality Duty which in the Court’s understanding would prevent them from refusing to award DHP where that could mean the applicant’s need for appropriately adapted accommodation was not met. The Court observes that the first applicant has in fact been awarded DHP for several years following the changes to the Housing Benefit Regulation. Whilst the DHP scheme could be characterised as not ensuring the same level of certainty and stability as the previous, unreduced Housing Benefit, its provision with attendant safeguards, amounts to a sufficiently weighty reason to satisfy the Court that the means employed to implement the measure had a reasonable relationship of proportionality to its legitimate aim. Accordingly, the difference in treatment identified in the case of the first applicant was justified.
The two dissenting judges did so mostly upholding the Supreme Court decision, but also on the basis that “the judgment does not delimit with precision the class of persons which is treated similarly in spite of being in a different situation.”
In performing the proportionality assessment, the majority take into consideration the aims of the Sanctuary Scheme. In their view, its main aim is to enable the victims of domestic violence to stay in the same accommodation. In other words, it is the perpetrator of domestic violence who should move out whereas the victim should have the possibility to remain.
We agree with this assertion. There is, however, one important caveat to be added. The right of the victim to stay in the same home is not absolute. It is always granted rebus sic stantibus. The underlying implicit premise is that the victim should not be removed from accommodation as a result of domestic violence, but in some circumstances she may have to leave for other – legitimate – reasons. The victim may stay in the same accommodation as long as she is validly entitled to stay there. The legislation does not protect against other factors which may force someone to move, such as a loss of income, the termination of the lease agreement by the landlord, the fact that a person is no longer eligible for social housing, etc. Domestic violence does not entail reinforced protection of the tenant in relations with the landlord. The real aim of the legislation – interpreted in the broader context of all relevant provisions – appears to be that of enabling victims of domestic violence who benefited from protection in Sanctuary Schemes to remain in their own homes safely as long as they are not forced to move out for other reasons.
There is the immediate impact for those in A’s situation. But beyond that, there is the significance of the ECtHR’s (re)definition of the application of ‘manifestly without reasonable foundation’ as the test for the justification of discrimination in legislation. That could have a major impact far beyond this specific case.
Given that, and the terms of the dissenting judgment, which concludes on precisely the issue of interference with policy level decisions on the basis of a (limited) number of awkward and unfortunate cases, I would fully expect the UK to appeal to the Grand Chamber. It seems A’s case could be a defining case for the interrelation of Art 14 discrimination, state policy and the role of the ECtHR/human rights law.