Burnip v Birmingham City Council & Anor

Disability can be expensive. It can give rise to needs which do not attach to the able-bodied. Ian Burnip and the late Lucy Trengove provide stark examples. Because of their severe disabilities they were assessed as needing the presence of carers throughout the night in rented flats in which they lived. For this reason they needed two-bedroom flats. In each case they were entitled to and received housing benefit (HB) but Birmingham City Council (in Mr Burnip’s case) and Walsall Metropolitan Borough Council (in Ms Trengove’s case) quantified it by reference to the one-bedroom rate which would apply to able-bodied tenants. The issue in their cases is whether this amounted to unlawful discrimination pursuant to Article 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Richard Gorry’s case is somewhat different. He, his wife and their three children live in a four-bedroom rented house. Two of the children are girls who, at the material time, were aged 10 and 8. Both are disabled – one by Down’s Syndrome, the other by Spina Bifida. For this reason it is inappropriate for them to share a bedroom in the way in which able-bodied sisters of those ages would be expected to do. The house is a four-bedroomed house but HB is provided by Wiltshire County Council by reference to the three-bedroomed rate which would apply to the family if the girls were not disabled. The same issue arises under Article 14. In all three cases, the properties in question are in the private rented sector. Different criteria would have applied in the social rented sector.

The three cases came to this Court by way of appeals from the Upper Tribunal. Sadly, Lucy Trengove died on 28 December 2011 but her case is being pursued by her estate in relation to the quantification of HB for the period prior to her death. The three cases were heard separately in the Upper Tribunal by different judges. The Burnip case was heard by Judge Howell QC who held that there was no contravention of Article 14: [2011] UKUT 23 (AAC). His decision was followed by Judge Jacobs in the Trengove case and by Judge Turnbull in the Gorry case.

Where a claimant has a local authority landlord, HB is paid by way of a rent rebate pursuant to section 134(1A) of the Social Security Administration Act 1992. In the private sector, however, HB is paid by way of a rent allowance. Section 134(1B) provides:

“In any other case [ie in private rented accommodation] housing benefit shall take the form of a rent allowance funded and administered by the local authority for the area in which the dwelling is situated … ”

This form of HB is calculated by reference to the number of bedrooms which the claimant and his or her family are deemed to need. The Housing Benefit Regulations 2006 are concerned with the number of “occupiers”, who are defined by regulation 13 D(12) as:

“the persons whom the relevant authority is satisfied occupy as their home the dwelling to which the claim or award relates except for any joint tenant who is not a member of the claimant’s household.”

The crucial provision is regulation 13 D(3):

“The claimant shall be entitled to one bedroom for each of the following categories of occupier (and each occupier shall come within the first category only which applies to him) –

(a)

a couple (within the meaning of Part 7 of the Act);

(b)

a person who is not a child;

(c)

two children of the same sex;

(d)

two children who are less than 10 years old;

(e)

a child.”

It follows from these provisions that the overnight carers in the Burnip and Trengove cases did not qualify as “occupiers”. The accommodation was not their “home” within the meaning of regulation 13 D(12) because they lived elsewhere and only stayed overnight when working on rota. The Gorry sisters fell within regulation 13 D (3)(c) as “two children of the same sex”, for whom one bedroom was the prescribed provision.

Although it came too late to affect this case, the circumstances in the Burnip and Trengove cases (but not the Gorry case) are now governed by an amendment which, from 1 April 2011, provides for “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 both of them are).”

As I have said, regulation 13 D does not apply where a local authority is the landlord. In such a case, persons are allocated property in the public sector on the basis of their assessed housing needs, including needs resulting from disability.

Domestic disability discrimination legislation – in particular the Disability Discrimination Act 1995 – does not feature in this case. The appellants rely entirely on Article 14 of the ECHR which provides:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination 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.”

There are two important matters of common ground. First, disability is within the concluding words “or other status”: see AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634. Secondly, HB falls within the ambit of Article 1 of the First Protocol as a “possession”: Reg (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311. Accordingly, entitlement is covered by the opening words of Article 14: “The enjoyment of the rights … set forth in the Convention …”. In these circumstances, it is not necessary to consider the appellants’ alternative submission that they are covered by Article 14 when read with Article 8 which is concerned with the right to respect for a person’s “private and family life, his home and his correspondence”. We received no oral submissions on this alternative basis in view of the common ground about Article 1 of the First Protocol.

In view of the common ground, one can therefore proceed to the real issues which concern (1) whether there was discrimination on the ground of disability; and, if so, (2) whether any such discrimination (or difference in treatment) was justified. As the Grand Chamber stated in Stec v United Kingdom (2006) 43 EHRR 47 (at paragraph 51):

“A difference in treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.”

The 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. In their skeleton argument and oral submissions, counsel for the appellants describe these ways of putting their case as “complementary and overlapping” rather than mutually exclusive.

That Article 14 embraces a form of discrimination akin to indirect discrimination in domestic law is well-known. Thus, in DH v Czech Republic (2008) 47 EHRR 3, the Strasbourg Court stated (at paragraph 175):

“… a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group.”

The submission here is that, whilst the statutory criteria provided for an able-bodied person to be given HB which would be an adequate contribution towards his accommodation needs, they failed to make equivalent provision in relation to the severely disabled, whose needs are more costly. Although neither group was provided with a benefit which would amount to a complete subsidy, the shortfall in relation to those such as the appellants was significantly greater because their HB was geared to one room fewer than their objective needs.

The answer of the Secretary of State to this analysis is that it is flawed because it does not identify correct comparators. Drawing on the domestic case of Lewisham Borough Council v Malcolm [2008] 1 AC 1399, it is suggested that the appropriate comparator is an able-bodied person who is in an otherwise identical position – for example, (in relation to the Burnip and Trengove cases) someone who needs an overnight carer during an unexpected but finite period of ill-health.

I do not accept that Malcolm provides the correct approach in the present context. It turned on the construction of section 24 of the Disability Discrimination Act 1995. The narrower construction favoured by the majority (Lords Bingham, Scott, Brown and Neuberger) was reached “not without misgiving” (Lord Bingham at paragraph 16) and “not without considerable misgivings” (Lord Neuberger at paragraph 139). It was understood by their Lordships to have a very limiting effect on the scope of the domestic statutory protection: see for example, Lord Brown (at paragraph 114) and Lord Neuberger (at paragraph 142), which unwanted damage has now resulted in amending legislation: see Equality Act 2010, section 15. It would be quite wrong to resort to Malcolm so as to produce a restrictive approach to Article 14. Indeed, one of the attractions of Article 14 is that its relatively non-technical drafting avoids some of the legalism that has affected domestic discrimination law. This was recognised by Baroness Hale in AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434, at paragraphs 20-25, where she particularly identified the less complicated approach to comparators in Convention law. On the same basis, I would reject the attempt on behalf of the Secretary of State to criticise the appellants’ case for not being founded on statistical evidence. Whilst such evidence can be important in an Article 14 case (see, for example, Hoogendjik v Netherlands (2005) 40 EHRR SE 22, at page 207), it is not a prerequisite. Where, as in the present case, a group recognised as being in need of protection against discrimination – the severely disabled – is significantly disadvantaged by the application of ostensibly neutral criteria, discrimination is established, subject to justification.

The appellants’ alternative basis derives from Thlimmenos v Greece (2001) 31 EHRR 15, where the Strasbourg Court stated (at paragraph 44):

“The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.” (Emphasis added)

This imposes a positive obligation on the State to make provision to cater for the significant difference. In AM (Somalia), above, such a positive obligation was in play in relation to the disabled but, in the event, the Secretary of State was able to establish justification (the subsequent appeal to the Supreme Court was on a different issue).

The skeleton argument on behalf of the appellants puts this aspect of their case as follows:

“The difference between a disabled person such as the [appellant] and a non-disabled person is that the disabled person has a level of need which is greater to enable him to live in a dignified manner in the community. The State’s failure to recognise this difference by making adequate provision represents a breach of the Thlimmenos obligation to treat different cases in a different way.”

Different treatment only arose on 1 April 2011, and then only in relation to the Burnip and Trengove cases, not the Gorry case.

On behalf of the Secretary of State, Mr Tim Eicke QC submits that the Thlimmenos principle is not as wide as is suggested. He submits that there is no example of the courts applying Thlimmenos so as to require a state to take positive steps to allocate a greater share of public resources to a particular person or group. The limited instances in which the principle has been invoked concern exclusionary rules (as in Thlimmenos itself and AM (Somalia)).

Whilst it is true that there has been a conspicuous lack of cases post- Thlimmenos in 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. To do so would be to depart from the emphasis in Article 14 cases which, as Baroness Hale demonstrated in AL (Serbia) (at paragraph 25), is “to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification”. I would apply the same approach to a Thlimmenos failure to treat differently persons whose situations are significantly different.

It follows that, in my judgment, the appellants fall within Article 14, subject to justification. I feel able to reach this conclusion even without resort to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which is relied upon by Mr Richard Drabble QC and further expounded upon by Ms Helen Mountfield QC on behalf of the Equality and Human Rights Commission. Mr Eicke seeks to marginalise the CRPD for present purposes by relying on Reg (NM) v London Borough of Islington [2012] EWHC 414 (Admin), in which Sales J, obiter, was inclined to disregard the CRPD as an aid to ascertaining the scope of Article 14 (see paragraphs 99-108). However, in AH v West London MHT [2011] UKUT 74 (AAC), the Upper Tribunal, presided over by Carnwath LJ, had taken a more expansive view (at paragraphs 15 and 16):

“The CRPD prohibits discrimination against people with disabilities and promotes the employment of fundamental rights for people with disabilities on an equal basis with others …

The CRPD provides the framework for Member States to address the rights of persons with disabilities. It is a legally binding international treaty that comprehensively clarifies the human rights of persons with disabilities as well as corresponding obligations on state parties. By ratifying a Convention, a state undertakes that wherever possible its laws will conform to the norms and values that the Convention enshrines.”

The CRPD was adopted by the General Assembly on 13 December 2006. It was ratified by the United Kingdom on 7 August 2009 and by the European Union on 23 December 2010. Article 4 obliges State Parties to:

“take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs or practices that constitute discrimination against persons with disabilities.”

Article 5(3) provides that:

“in order to promote equality and eliminate discrimination, State Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.”

Article 19 provides:

“State Parties … recognise the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full engagement by persons with disabilities of this right and their full inclusion and participation in the community by ensuring that

(a)

Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

(b)

Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community and to prevent isolation or segregation from the community;

(c)

Community services and facilities are available on an equal basis to persons with disabilities and are responsive to their needs.”

These provisions resonate in the present case, even though they do not refer specifically to the provision of a state subsidy such as HB.

In the recent past, the Strasbourg Court has shown an increased willingness to deploy other international instruments as aids to the construction of the ECHR. In Demir and Baykara v Turkey (2009) 48 EHRR 54, the Grand Chamber said (at paragraph 85) that

“in defining the meaning of terms and notions in the text of the [ECHR], [it] can and must take into account elements of international law other than the [ECHR], the interpretation of such elements by competent organs and the practice of European States reflecting their common values.”

There the Grand Chamber was construing Article 11 (freedom of association) by reference to International Labour Organisation Conventions and the European Social Charter. In the context of Article 14, in Opuz v Turkey (2010) 50 EHRR 28, the Court said (at paragraph 185):

“… when considering the definition and scope of discrimination against women, in addition to the more general meaning of discrimination as determined in its case-law … the Court has to have regard to provisions of more specialised legal instruments and the decisions of international legal bodies on the question of violence against women.”

These cases do not appear to have been drawn to the attention of Sales J in NM.

The response of the Secretary of State is to seek to limit this approach by drawing fine distinctions as between different international instruments and in relation to their maturity or chronology. It seems to me, however, that such rearguard action is inappropriate. If the correct legal analysis of the meaning of Article 14 discrimination in the circumstances of these appeals had been elusive or uncertain (and I have held that it is not), I would have resorted to the CRDP and it would have resolved the uncertainty in favour of the appellants. It seems to me that it has the potential to illuminate our approach to both discrimination and justification.

As to justification, I have read in draft and completely agree with the judgment of Henderson J.

It follows from what I have said that (1) the appellants have established a prima facie case of discrimination pursuant to Article 14 and (2) for the reasons set out in the judgment of Henderson J, the Secretary of State has failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria. I would therefore allow the appeals from the Upper Tribunal. I would make a declaration to that effect. The question then arises as to whether any further relief is appropriate. In so far as the Burnip and Trengove cases are concerned, the Regulations have been amended as from 1 April 2011. Mr Eicke submits that we should go no further than to grant declaratory relief, leaving it to the Secretary of State as to how to deal with the rectification of the discrimination in all three cases. Such an approach accords with the course taken in Francis v Secretary of State for Work and Pensions [2006] 1 WLR 3202. I consider it particularly appropriate in a case in which the Secretary of State is responsible for the Regulations but local authorities (who are respondents to these appeals but have taken no part in them) are responsible for the provision of HB to claimants.

I have read the judgments of Maurice Kay LJ and Henderson J in draft. I agree with them and do not wish to add anything.

For the reasons given by Maurice Kay LJ, I agree that the appellants have established a prima facie case of discrimination pursuant to Article 14. It therefore remains to consider the question of justification. The test to apply for this purpose was stated by the Grand Chamber in Stec v United Kingdom at paragraph 51, cited by Maurice Kay LJ in paragraph 9 above. In short, the Secretary of State must establish that there was at the material time objective and reasonable justification for the discriminatory effect of the relevant HB criteria as they applied to the particular circumstances of the appellants. It is elementary that what has to be justified is not the scheme of HB as a whole, or the general policy of calculating HB in the private sector by reference to the number of bedrooms deemed to be needed by “occupiers”, but rather the difference in treatment resulting from the application of those criteria which has been held to infringe Article 14: see A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, at paragraph 68 (per Lord Bingham) and AL (Serbia) v Home Secretary [2008] UKHL 42, [2008] 1 WLR 1434, at paragraph 38 (per Baroness Hale).

As the Grand Chamber explained in Stec at paragraph 51, a difference of treatment lacks objective and reasonable justification “if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised”. With regard to the margin of appreciation enjoyed by a Contracting State, the Court went on to say at paragraph 52:

“The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”.”

Relying on this and other similar statements of the Strasbourg court, and on the observations of Lord Walker in Reg (RJM) v Work & Pensions Secretary [2008] UKHL 63, [2009] 1 AC 311, at paragraph 5, Mr Drabble QC submitted for the appellants that “very weighty reasons” would be needed to justify discrimination on grounds of congenital disability, which (like a person’s sex) is an innate and largely immutable characteristic, closely connected with an individual’s personality and life chances. While I would accept that congenital disabilities of the kind suffered by Mr Burnip, Ms Trengove and Mr Gorry’s daughters may in principle fall within the category of grounds for discrimination which can be justified only by very weighty reasons, I would nevertheless reject this submission for the same reasons that a similar submission was rejected by this Court in AM (Somalia): see paragraphs 15 to 16 of the judgment of Maurice Kay LJ, and paragraphs 61 to 62 of the judgment of Elias LJ. Weighty reasons may well be needed in a case of positive discrimination, but there is no good reason to impose a similarly high standard in cases of indirect discrimination, or cases where the discrimination lies in the failure to make an exception from a policy or criterion of general application, especially where questions of social policy are in issue. As in AM (Somalia), therefore, the proportionality review applicable in the present case must be made by reference to the usual standard, not an enhanced one.

Mr Burnip

In order to evaluate the Secretary of State’s case on justification, it is first necessary to have a fuller understanding of the function, operation and interaction of the various social security benefits which were available to the appellants. Mr Eicke submitted on behalf of the Secretary of State that it would be wrong to view the HB paid to each appellant in isolation, and he relied in particular on the detailed analysis of the relevant benefits background contained in the decision of the Upper Tribunal in Mr Burnip’s case. I agree that this is in principle the correct approach, and because we have the benefit of Judge Howell QC’s helpful analysis in that case, it is convenient to begin with Mr Burnip.

At the relevant time in 2008, Mr Burnip had three sources of income apart from HB: incapacity benefit, disability living allowance and his student loan. Of these, the first two were directly related to his disability, while the third, his student loan, was of the normal type and amount for his course at the University of Aston and therefore needs no further comment.

Incapacity benefit is a contributory benefit, which was payable at the material time pursuant to sections 30A to 30E of the Social Security Contributions and Benefits Act 1992 (“SSCBA 1992”) and regulations made thereunder. Incapacity benefit is either short-term (for periods of incapacity for work of up to 364 days) or long-term (for longer periods). In view of his permanent disability, Mr Burnip was entitled to long-term incapacity benefit even though he was a student, had never been in work, and had never paid national insurance contributions. The amount of incapacity benefit which he received as at 6 June 2008 was £102.25 per week.

Disability living allowance is a non-contributory benefit, which was payable at the material time pursuant to sections 71 to 76 of SSCBA 1992 and associated regulations. It has two components: a care component and a mobility component. Mr Burnip was in receipt of the top rate of each component, totalling £113.75 per week as at 6 June 2008. He was entitled to the top rate of the care component because (relevantly) he satisfied the requirements of being so severely disabled physically as to require care from another person both throughout the day and at night: see section 72(1)(b) and (c) and (4)(a). He was entitled to the higher rate of the mobility component because, put shortly, his physical disablement meant that he was unable to walk: ibid, section 73(1)(a) and (11)(a).

I come on now to the calculation of Mr Burnip’s HB. In broad terms, HB is a weekly welfare benefit which is intended to help people on low incomes to meet the cost of their rent. Like income support and council tax benefit, it is an “income-related benefit” within Part VII of SSCBA 1992: see section 123(1)(d). The amount of HB, as explained below, depends on the relationship between a claimant’s actual income on the one hand, his “applicable amount” (a statutory prescribed amount representing what the claimant is taken to need to live on) on the other hand, and the rent which he has to pay. In the private sector, HB is received as a weekly allowance. In the social rented sector, it is given effect by means of a rent rebate.

In the social sector, there was at the material time (and still is) no requirement to refer a claim for housing benefit paid in the form of rent allowance to the rent officer for a rent determination (regulation 14(1)(a) of the Housing Benefit Regulations 2006 (SI 2006/213)) save where the landlord is a registered housing association and the authority considers that the rent is unreasonably high (regulation 12B(6) of the 2006 Regulations). In the private sector, however, rents are generally higher, and there are restrictions on the amount that can be paid by way of HB. Before 2008, these restrictions were imposed by reference to a “local reference rent”. We are concerned, however, with the local housing allowance (“LHA”) rules which came into force nationally on 7 April 2008. As Maurice Kay LJ has already explained, those rules use a system of flat rate allowances payable for categories of property determined by reference to the number of bedrooms to which the claimant is entitled, in accordance with regulation 13D(3) of the 2006 Regulations. LHAs are set for each “broad rental market area” by rent officers, on the basis of the median rent for each category of property within the area. The boundaries of the broad rental market areas are also set by rent officers, taking account of a number of specified criteria (such as the availability of facilities and services for health, education, recreation, banking and shopping, and their accessibility by public and private transport). So, for example, there is a total of 14 broad rental market areas in the Greater London area. The maximum weekly HB which can be claimed by a private sector tenant is thus the LHA for the size category of property to which, by application of the bedroom test, he or she is entitled.

By virtue of SSCBA 1992 section 135(1), a claimant’s “applicable amount” in relation to any income-related benefit is to be prescribed by regulations; and since Mr Burnip was a severely disabled person, it had to include an amount in respect of his disability (section 135(5)). Mr Burnip’s weekly applicable amount from 9 June 2008 was £136.75, made up (as Judge Howell explained in para [21] of the Upper Tribunal’s decision) of the standard allowance for a single claimant under 25 of £47.95, plus three separate and cumulative premiums for which his circumstances qualified him under Part 3 of Schedule 3 to the 2006 Regulations: the disability premium for a single person of £25.85; the enhanced disability premium of £12.60; and the severe disability premium of £50.35.

It is convenient at this point to note the qualification which entitled Mr Burnip, as a single claimant, to the severe disability premium of £50.35 per week. The conditions (set out in para 14(2)(a) of Schedule 3) were that he was in receipt of the care component of disability living allowance at the higher or middle rate; that (subject to irrelevant exceptions) he had no non-dependents aged 18 or over normally residing with him; and that no person was in receipt of a carer’s allowance (under section 70 of SSCBA 1992) in respect of caring for him.

As I have already noted, Mr Burnip’s actual weekly income at this date (apart from HB) had three components: his incapacity benefit of £102.25, his disability living allowance of £113.75, and his student loan, the apportioned weekly amount of which was £72.09. His total weekly income was therefore £288.09. Of this amount, however, as Judge Howell explained in para [22] of the Upper Tribunal’s decision:

“… the whole of the disability living allowance is disregarded from the means testing calculation, and after the deduction of smaller allowable amounts from the student loan for books and travel expenses, [Mr Burnip] was left with a reckonable income for housing benefit purposes of £149, exceeding his applicable amount by £12.25.”

Where (as in Mr Burnip’s case) the claimant’s reckonable income exceeds his applicable amount, the weekly HB is reduced by 65% of the excess (SSCBA 1992 section 130(3)(b) and regulations made thereunder). Mr Burnip’s maximum eligible rent, based on entitlement to one bedroom, was £103.85. Accordingly, the sum which he actually received as HB was £103.85 less 65% of £12.25 (i.e. £7.96), making £95.89. This was the figure shown on a corrected benefit decision notice issued to him by Birmingham City Council on 12 August 2008. It represented a shortfall of £59.88 when compared with the weekly rent of £155.77 which Mr Burnip in fact had to pay to his landlord.

If Mr Burnip had been entitled under the 2006 Regulations to a property with two bedrooms, his maximum eligible rent would have been £126.92 per week, or £23.07 more than the single bedroom rate of £103.85. His actual income would have remained the same, so the shortfall when compared with the rent which he actually paid would also have been correspondingly reduced, to £36.81 from £59.99. Thus, if the present appeal succeeds, the result would be only to ameliorate, not to eliminate, the amount of the shortfall.

Judge Howell appears to have taken the view that, if Mr Burnip’s appeal were to succeed, he would lose the £50.35 severe disability premium included in the calculation of his applicable amount. In para 36 of the Upper Tribunal decision, he said this:

“If the claimant had been treated as having another non-dependent adult living with him in his flat, his maximum allowable benefit would have increased to the two-room category (c) rate of £126.92, but the advantage from this would have been more than offset by the loss of the £50.35 severe disability premium (which is for severely disabled people living on their own without another such adult: cf. paragraph 14(2)(a)(ii) and (iv) of Schedule 3) and the combined effect would have reduced his weekly housing benefit to £86.23.”

With respect to Judge Howell, however, I am satisfied that this is wrong, and Mr Eicke did not seek to argue the contrary. The personal circumstances which entitled Mr Burnip to the severe disability premium (see paragraph … above) would have remained precisely the same, even if he were treated as entitled to a maximum eligible rent on the two-bedroom basis. There is no process of statutory deeming which would require him to be treated for the purposes of the severe disability premium as if he did in fact have another non-dependent adult living with him.

The shortfall which I have identified brings me to the last benefit which needs to be considered in Mr Burnip’s case, namely discretionary housing benefit. Under The Discretionary Financial Assistance Regulations 2001 (SI 2001/1167, “the 2001 Regulations”) a local authority has power to make payments by way of financial assistance, called “discretionary housing payments”, to persons who are entitled to HB and who “appear … to require some further financial assistance … in order to meet housing costs” (Regulation 2(1)). By virtue of Regulation 2(2), a local authority has a discretion whether or not to make discretionary housing payments in a particular case, and as to the amount of the payments and the period for which they are made. There is no definition of “further financial assistance” in the 2001 Regulations, and although discretionary housing payments must be claimed, there is no prescribed procedure for making such claims. There is an upper cash limit on the total amount of such payments that an authority may award, pursuant to Article 7 of The Discretionary Housing Payment (Grants) Order 2001 (SI 2001/2340).

The DWP produces a “Best Practice Guide” for the making of discretionary housing payments. The edition of this guide in force at the relevant time was promulgated in March 2008. This guidance made it clear that a discretionary housing payment could be made where the LHA did not meet the claimant’s rent, and gave as an example of medical circumstances which an authority may wish to consider “Does the claimant require an extra room because of a health problem that affects them or a member of their household?” The guidance also made it clear that it was entirely up to the authority to decide how much of a shortfall to meet by way of a discretionary housing payment, provided only that the combination of HB and the payment did not exceed the weekly eligible rent on the claimant’s home. Payments could be made either in advance or in arrears, and for such length of time as the authority might decide, including for an indefinite period until the claimant’s circumstances changed.

During the period covered by his appeal, Mr Burnip was awarded discretionary housing payments as follows. From 9 June 2008 to 31 March 2009, he received payments of £40 per week. This award was confirmed in a letter to him from Birmingham City Council dated 18 August 2008, which warned him that, as funds were limited, there was no guarantee that his award would continue after 31 March 2009 and he would need to reapply. In the event, no award was made to him between March and May 2009, and between May and November 2009 he received only £15 per week (which was £8.07 less than the difference between the one and two bedroom rates of LHA). It can be seen, therefore, that not only were the awards discretionary and short term, but there was a period during which no award at all was made, and even when Mr Burnip was in receipt of an award he could not rely upon it to eliminate the difference between the one and two bedroom rates of LHA, let alone the full amount of the shortfall from the rent which he actually had to pay.

Against this detailed background, can it be said that the wider benefits context provides an objective and reasonable justification for the discrimination against Mr Burnip which we have found to be established in relation to the amount of his HB? In my judgment, the following considerations strongly suggest a negative answer to this question.

First, I think it is necessary to draw a clear distinction between the benefits which Mr Burnip was entitled to claim for his subsistence, and those which he was entitled to claim in respect of his housing needs. His incapacity benefit and disability living allowance were intended to meet (or help to meet) his ordinary living expenses as a severely disabled person. They were not intended to help with his housing needs. This is demonstrated, in my view, not only by the availability of HB and discretionary housing payments as separate benefits with separate rules applicable to them, but also by the way in which HB is structured. As I have explained, the amount of HB is fixed by reference to an applicable amount which represents what the claimant is taken to need to live on, and if a claimant’s reckonable income exceeds his applicable amount, the amount of HB is reduced by 65% of the excess. Furthermore, Mr Burnip’s applicable amount included the three disability premiums which I have mentioned, while the whole of his disabled living allowance was disregarded in the calculation of his reckonable income. Thus it was only if (in broad terms) his incapacity benefit and student loan together exceeded his applicable amount that any reduction would fall to be made in the amount of his HB; and to the extent that there was such an excess, the HB rules themselves prescribed how it was to be taken into account. It would therefore be wrong in principle, in my judgment, to regard Mr Burnip’s 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.

Secondly, it is clear on the evidence that Mr Burnip’s objectively verifiable need was for a flat with two bedrooms, and that the maximum LHA available to him on the one bedroom basis left a substantial shortfall from the rent which he had to pay to his landlord. Discretionary housing payments were in principle available as a possible way of bridging this gap, but they cannot in my judgment be regarded as a complete or satisfactory answer to the problem. This follows from the cumulative effect of a number of separate factors. The payments were purely discretionary in nature; their duration was unpredictable; they were payable from a capped fund; and their amount, if they were paid at all, could not be relied upon to cover even the difference between the one and two bedroom rates of LHA, and still less the full amount of the shortfall. To recognise these shortcomings is not in any way to belittle the valuable assistance that discretionary housing payments are able to provide, but is merely to make the point that, taken by themselves, they cannot come anywhere near providing an adequate justification for the discrimination in cases of the present type.

A further aspect of the problem is that housing, by its very nature, is likely to be a long term commitment. This is particularly so in the case of a severely disabled person, because of the difficulty in finding suitable accommodation and the probable need for substantial physical alterations to be made to the property in order to adapt it to the person’s needs. Before undertaking such a commitment, therefore, a disabled person needs to have 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. For the reasons which I have given, discretionary housing payments cannot in practice provide a disabled person with that kind of assurance.

Ms Trengove

Having dealt at some length with the position of Mr Burnip, I can now deal much more briefly with that of Ms Trengove. Although there are differences of detail, I consider that in all essential respects her case was comparable with Mr Burnip’s, and that the same result should therefore follow. Nor did Mr Eicke argue that any distinction should be drawn between them.

Having previously lived at home with her parents, in October 2008 Ms Trengove moved into a two bedroom flat. The actual rent for the property was £109.62 per week. The amount which she received as HB was £80.85 per week, calculated by reference to a one bedroom LHA of £91.15 for the relevant area. This left a shortfall of £28.77 per week. The LHA rate for two bedrooms was £114.92, so if it were applicable (as the First-tier Tribunal held in her favour that it was) she would have been entitled to receive the full amount of her weekly rent by way of HB.

Ms Trengove was subsequently awarded income support. Income support is a further income-related benefit (see section 123(1)(a) of SSCBA 1992), to which I have not yet referred. The basic conditions for its payment are set out in section 124 of SSCBA 1992 and supporting regulations. It includes premiums for disability, severe disability and enhanced disability similar to those which apply in calculating the applicable amount for HB purposes. In Ms Trengove’s case, the effect of the award of income support was to entitle her to the full single room rate of LHA of £91.15 per week, thereby reducing her weekly shortfall from £28.77 to £18.47. From March 2009 onwards, Ms Trengove was awarded discretionary housing payments which met the full amount of the shortfall. However, she received no discretionary housing payments between October 2008 and March 2009, leaving the whole of the shortfall unrelieved for that period.

It is also worth noting in this context what the First-tier Tribunal said in relation to the discretionary housing payments received by Ms Trengove (at paragraph 27):

“Although I accept that she has benefited from discretionary payments by the Local Authority which have covered the difference between the Housing Benefit allowed and the rent payable, I consider it extremely unlikely that she and her family would have taken the risk of acquiring the responsibilities of a tenant if she could only pay the rent with the help of discretionary sums payable out of a capped fund with eligibility re-assessed every 12 weeks. It seems to me very much more probable that without entitlement by right to assistance with the full rent, [Ms Trengove’s] options would be limited to living with her parents or living in residential care. Neither of these options is desired either by [Ms Trengove] or her parents, and I accept that professional agencies involved with her care have also been very keen that she should have an opportunity to live independently.”

Mr Gorry

In the case of Mr Gorry, the information available to us is relatively scanty. The decision of the First-tier Tribunal contains no findings about the benefits available to the family, and the decision of Judge Turnbull in the Upper Tribunal does not deal with the position in detail. He records, however, that Mr Gorry was at the material time in receipt of income support and carer’s allowance; that his wife was in receipt of incapacity benefit, disability living allowance, child tax credits and child benefit; and that, in addition, they both received disabled living allowance in respect of each of their two daughters. It further appears from paragraph 27 of his decision that disability premiums were added in the calculation of the amount of child tax credit for each daughter. As one would expect, therefore, the family was in receipt of substantial disability-related benefits, but as in the case of Mr Burnip I see no reason to doubt that these benefits were all essentially subsistence benefits.

In relation to housing, Judge Turnbull records that the house in which Mr Gorry and his family lived was privately rented, at a rent of £995 per month (equivalent to £229.61 per week). The three bedroom rate of HB paid to Mr Gorry at the relevant time was £155.77 per week, leaving a shortfall of £73.84. Between July and November 2008, no discretionary housing payments were made to Mr Gorry, so the whole amount of the shortfall remained unrelieved. For the remaining two months of the tenancy, which expired in January 2009, discretionary housing payments were awarded in the sum of £63.46 per week.

The family then moved to cheaper accommodation, with a weekly rent of £196.15. They remained in this accommodation until December 2010. The rate of HB paid to Mr Gorry remained unchanged at £155.77 per week, so the shortfall was now £40.38. Discretionary housing payments in that amount continued to be made until 2 April 2009, but Mr Gorry then had to make a fresh application which was refused in May 2010. Accordingly, he received no discretionary housing payments from 2 April 2009 until the end of this tenancy in December 2010.

For reasons similar to those which I have given in relation to Mr Burnip and Ms Trengove, I am satisfied that the housing-related benefits received by Mr Gorry should be viewed separately from the family’s subsistence benefits; and I am also satisfied that the discretionary housing payments made to him, although they provided some temporary alleviation, cannot by themselves provide the necessary justification.

Apart from his submissions about the range of benefits available to the appellants, Mr Eicke also relied by way of analogy on the broader grounds which led this court to conclude in AM (Somalia), in a disability-related context, that the discrimination in question was justified, and on the application of those grounds in Mr Burnip’s case by Judge Howell in the Upper Tribunal. In particular, Mr Eicke relied on the wide margin of appreciation accorded to the State in relation to “general measures of economic and social strategy” (Stec at paragraph 52, cited above); on the need for clear rules in such areas; and on the fact that there will inevitably be some hard cases, wherever the line is drawn.

The appellant in AM (Somalia) was a male citizen of Somalia, who in 2004 had married in Ethiopia a British citizen who normally lived in London. She was disabled, and received various state benefits including disability living allowance. The appellant applied to settle in the United Kingdom as her spouse. The Immigration Judge found that the marriage was genuine, and accepted the wife’s evidence about her disability, but rejected the application because the appellant failed to satisfy the condition in paragraph 281(v) of the Immigration Rules that the parties would be able to maintain themselves adequately without recourse to public funds. By the time the case reached the Court of Appeal in 2009, the sole issue had become whether paragraph 281(v) infringed Article 14 by its failure to make special provision for people with disabilities by either excusing them from the maintenance requirement, or at least allowing them to be maintained by third parties. The issue was thus one of disability discrimination.

The Court of Appeal held that discrimination was prima facie established, but that the Secretary of State succeeded on the issue of justification. The leading judgment was given by Maurice Kay LJ. He accepted in paragraph 24 of his judgment that applicant spouses of disabled sponsors represented “a relatively small subset of the totality of applicants”, and that any additional recourse to public funds in such cases would be unlikely to last for more than two years if the exception contended for were to be admitted. On the other hand, counsel for the Secretary of State pointed to “the sheer variability of individual cases”, to the need for “potentially burdensome administrative provisions involving periodic assessment”, and to the possibility of the Home Office exercising discretion to admit entry where there were exceptional compassionate circumstances. In paragraph 28, Maurice Kay LJ said the question was “how is the balance to be struck in the present case between the rights of the individual and the interests of society in firm and fair immigration control?” He then answered this question in paragraph 29:

“It is common ground that there is nothing disproportionate in a general rule or policy which makes self-sufficiency a requirement of entry. The first question is whether it is disproportionate not to exclude the disabled. In my judgment, it is not. Unlike the categories of “suspect” grounds to which I referred in paragraph 15, disability is a relative concept. It may be severe or moderate, permanent or temporary. It affects the affluent as well as the indigent. It may or may not affect earning capacity. To some extent, these variables are illustrated by the present case … [he then referred to the evidence] There will be disabled sponsors who are far more and far less disabled then the sponsor in this case. All this convinces me that it is reasonable and proportionate to have a criterion of self-sufficiency without a general exemption for the disabled. It will produce cases of hardship but that in itself does not render it disproportionate, particularly where provision is made for exceptional compassionate circumstances.”

Elias LJ reached the same conclusion, for reasons which he expressed as follows at paragraphs 64 and following of his judgment:

“64.

Mr Fordham submits that precisely because the number of potential beneficiaries of an exemption from the rule will be relatively small, the additional cost will be limited. The Article 8 rights of the disabled demand that the state supports this group and therefore the failure to make an exception to rule 281(v) is plainly disproportionate.

65.

I reject this argument, essentially for the following reasons, which are in large part interrelated. First, this is an area of social policy concerning control of who should be allowed to enter into this country and in what circumstances. As I have noted, the courts are particularly reluctant to interfere in such areas.

66.

Second, as Maurice Kay LJ has pointed out, the courts have frequently recognised that “bright line” rules are generally acceptable in such cases notwithstanding that they might produce some hardship.

67.

Third, the practical effect of making the exception involves public expenditure. In my judgment the courts will be particularly slow to require special treatment for a group where it affects the distribution of national resources, even if it be the case that the sums will be relatively small.

68.

Fourth, and in my view importantly – and this is likely to be true of most indirect discrimination claims of this nature – it is difficult to foresee what other potential claims of a similar kind there may be … This does not merely create a difficulty in foreseeing the potential range of claimants urging special treatment, but it also makes the potential cost very difficult to predict. These uncertainties reinforce the justification for a bright line rule.

69.

Fifth, … there would be additional administrative costs in having to identify whether a particular case falls within or outwith the exception – a particular difficulty given that the concept of disability itself is imprecise – and such cases would have to be periodically reviewed. Indeed, administrative burdens will almost inevitably be created once one departs from a bright line rule because of the need to draw the distinctions which a more nuanced rule will create.

70.

Sixth, as I have said, this is not a case of direct or planned discrimination …

71.

Finally, a factor lending some additional support to this conclusion is the fact that the Secretary of State is empowered in particularly compassionate cases to exercise a discretion in favour of entry …

72.

For these reasons, therefore, I am satisfied that the failure to adopt a special rule for those whose spouse in this country cannot work by reason of disability is fully justified. The rule is lawful notwithstanding its discriminatory impact.”

Mummery LJ agreed with both judgments, without adding anything.

In the Burnip case, Judge Howell quoted at length from Elias LJ’s judgment in AM (Somalia), and held that the same or corresponding considerations would apply equally to the present case, especially as

“… what is sought is not simply the disapplication of a negative exclusionary rule, but the award of an additional cash benefit outside the rules altogether for which there is in fact no valid “system of reference”.”

Judge Howell then continued:

“48.

In such a context, and against the background of what the benefits system already does provide for disabled people in this claimant’s situation, the argument that an additional cash allowance has to be created by judicial intervention under Article 14 must in my view be approached with extreme caution; even more caution, if anything, than that displayed by the Court of Appeal in AM (Somalia). The self-evident (and in my judgment self-evidently legitimate) aim of the rule being challenged is to control the cost of housing benefit and ensure that this form of social assistance is paid out only for its purpose of helping providing people with a home, not for accommodation to be used for other purposes. It applies the objective and in my judgment entirely rational criterion that the accommodation allowances therefore depend on the number of occupiers, as defined, that is residents living in the property as their home; not people temporarily there for other purposes however necessary or commendable.

49.

The claimant’s argument really comes down in my view to saying that because of his special needs as a disabled person he requires a more expensive home for himself, and should be entitled to extra housing benefit to reflect this. He has (or those acting on his behalf have) chosen to pin the claim on the extra room rate for another full-time resident but once one departs from the rules the reality, it seems to me, is that it is the same argument in principle whether quantified in that way or as extra cash towards the increased cost of renting a ground-floor flat with level access, wider doors and other features or adaptations to make it a more suitable home for him.

50.

The benefits system is intricate and complicated, and as has been seen contains many detailed provisions that interact and interconnect with one another. Of course in such a massive and complex system there will be apparent anomalies and cases where deserving people, as I am sure this claimant is, will find themselves on the wrong side of some detailed distinction or with amounts they consider unfairly fail to reflect their special needs so that more should as a matter of social justice be done for them. But the evaluation, and if necessary correction, of such matters as the provision of the extra resources for the purposes are questions for the legislature and the executive …

51.

The factors of the practical need for a single clearly-defined rule, the existence of the supplementary system of discretionary housing payments to alleviate hard cases (which even if less than perfect did in fact do exactly that for this claimant for the relevant year), and the unknown quantity of other groups who might with equal justice emerge to claim special treatment and extra cash, all support that conclusion in this case at least as much as in AM (Somalia). [Counsel for Mr Burnip] naturally pointed to the introduction of the special extra room allowance for the severely disabled from April 2011 as a de facto acknowledgment that the previous rule was unjustified, but in my judgment that does not at all follow as a matter of law under Article 14. The extra allowance to alleviate the position of comparatively few claimants is of course being introduced at the same time as much more general cuts across the board in which a lot of others will suffer. In my view the effect is merely to underline the point that the making of such changes, the amounts involved and their timing, are matters for legislation, not judicial tinkering with just one setting in one individual piece of the overall machinery.”

I acknowledge that there is force in some of the points made by Judge Howell, but I respectfully think that in paragraphs 48 and 49 he concentrated too much on the justification for the general bedroom rule (which is not in dispute) and too little on the object of Mr Burnip’s claim, which is not to give him some form of preferential treatment, but merely to ensure that HB can fulfil its intended function for those who are so severely disabled that they need 24 hour care. The simple point is that, without the benefit of the extra room rate, Mr Burnip would be left in a worse position than an able bodied person living alone: it is only to correct such disparity of treatment that the claim is brought.

Furthermore, there are in my judgment important differences between the circumstances of the present appeals and the position in AM (Somalia). First, these are not cases of immigration control, where as Elias LJ noted the courts are particularly reluctant to interfere in matters of policy. On the contrary, 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. Secondly, there is no question of a general exception from the normal bedroom test for disabled people of all kinds. The exception is sought for only a very limited category of claimants, namely those whose disability is so severe that an extra bedroom is needed for a carer to sleep in (or, in cases like that of Mr Gorry, where separate bedrooms are needed for children who, in the absence of disability, could reasonably be expected to share a single room). Thirdly, such cases are by their very nature likely to be relatively few in number, easy to recognise, not open to abuse, and unlikely to undergo change or need regular monitoring. The cost and human resource implications of accommodating them should therefore be modest, quite apart from the point that in some cases the effect of refusing the claim could well be to force the claimant into full-time residential care at much greater expense to the public purse. Fourth, for the reasons which I have already given, the extra assistance which can be provided by discretionary housing payments, valuable though it can be, falls far short of being an adequate solution to the problem. Finally, the fact that Parliament has now seen fit to legislate for cases like those of Mr Burnip and Ms Trengove, and to do so at a time of general economic hardship, may in my view reasonably be taken as recognising both the justice of such claims and the proportionate cost and nature of the remedy.

For all these reasons, I am satisfied that maintenance of the single bedroom rule is not a fair or proportionate response to the discrimination which has been established in cases of the present type, and that the defence of justification therefore fails. As to the relief which it would be appropriate to grant, I am in full agreement with the views expressed by Maurice Kay LJ.