A, R (on the application of) v The Secretary of State for Work and Pensions (Rev 1)

The applications before us concern further claims to challenge the lawfulness of what is commonly, if inaccurately, called the Bedroom Tax, which was introduced by the Housing Benefit (Amendment) Regulations 2012 (“the Regulations”). In both cases, the Claimants seek permission to appeal against the judgments below. In A, the Claimant applies to lift the stay on her claim imposed by Elias LJ, pending the judgment of the Supreme Court in MA, to which I refer below.

As is well known, the object of the Regulations is to reduce the amount of housing benefit paid to tenants if their rented accommodation is larger than their needs. The result, for most tenants in that situation, is that their housing benefit does not fully cover their rent. As a result, they must either move to smaller accommodation or provide the balance themselves.

The Regulations include provisions that exclude the reduction in certain defined cases in which the Government acknowledge that the needs of the tenant are greater than for other families of that size. However, the Government considered that there would be persons outside those excluded cases for whom the level of housing benefit should not be reduced. Instead of seeking to define comprehensively the cases in which full benefit would continue to be paid the Government provided for a discretionary benefit, called Discretionary Housing Payment “DHP”, the payment of which is under the control of local authorities.

The Claimants in the present applications are recipients of DHP. They claim that the Regulations unlawfully discriminate against them, because instead of a legal and enforceable entitlement to full housing benefit they need DHP, to which they have no enforceable claim (other than by way of judicial review of their local authority), and which their local authority could decide to cease to pay.

In A, the Claimant has been the subject of serious violence on the part of a man with whom she had a brief relationship. The threat to her was sufficient for her to be made the subject of a Sanctuary Scheme, described in paragraphs 9 and following of the judgment of His Honour Judge Worster in her case. He rejected her claim. His careful judgment is at [2015] EWHC 159 (Admin).

In SR, the First and Second Claimants are the maternal grandparents of the Third Claimant, who lives with them and who suffers from Potoki-Shaffer Syndrome. He was aged 14 when Stuart-Smith J heard and rejected their claim in May 2004. It is because of his needs that they require accommodation greater than would be required if he were well. They contend that the Regulations unlawfully discriminate against them and others in a similar situation, thereby infringing their rights under Article 14.

In A, the Claimant alleges that the Regulations discriminate against her and others who are the subject of Sanctuary Schemes (because receipt of DHP is discretionary rather than mandatory); that that discrimination infringes her rights under Article 14 of the European Convention on Human Rights; that before making the Regulations the Secretary of State failed to comply with the Public Sector Equality Duty; and that her Article 8 right to respect for her home is unjustifiably at risk. In relation to the PSED, she says that the Secretary of State failed to consider, or failed adequately to consider, that since most single parents, who as such cannot work and need housing benefit, are women, reductions in housing benefit affect women more than men; that in particular the Secretary of State failed to consider the situation of the victims of women who, as a result of domestic violence, are in a Sanctuary Scheme and for that reason require to remain in their existing accommodation, despite it being larger than their needs. Her Article 8 rights are engaged because, if payment of DHP ceases, she will be unable to pay her rent and will on that account be liable to be evicted.

The Secretary of State accepts that the Regulations are discriminatory. The Secretary of State contends that the discrimination is justified by reason of the availability of DHP.

Similar claims of discrimination were considered by this Court in Burnip and others v Birmingham City Council and others [2012] EWCA Civ 629 and in MA [2014] EWCA Civ 13. In Burnip, the claim of infringement of Article 14 succeeded; in MA it failed. In both cases, the test applied to the question whether the justification advanced by the Secretary of State is “manifestly without reasonable justification”. As formulated, it is a high hurdle for the claimants to surmount. Ms Monaghan QC stated that there is “friction” between these decisions of the Court of Appeal. It might even be said that it is difficult to reconcile the two decisions.

The Supreme Court has given permission to appeal in MA, and it is due to be heard in 2016.

The object of the present applications is to secure the hearing of their cases in the Supreme Court, together with MA. They accept that we cannot assure them that if the Court of Appeal dismissed their appeals the Court of Appeal or the Supreme Court will grant permission to appeal, but that is a chance they are willing to (indeed have to) accept.

The Claimants accept, I think, that if the approach of the Court of Appeal in MA is followed in their appeals, their prospects of success are not enormous. However, they say that there are elements in their cases that differ from MA, and which should be before the Supreme Court when it determines the lawfulness of the Regulations. In A, there is the element of gender discrimination, and of a class (women in Sanctuary Schemes) which could have been easily defined in the Regulations as excluded from the general rule. In SR, there is the situation of a disabled child. The curious situation of a disabled child was summarised by Stuart-Smith J at paragraph 19 of his judgment:

The changes [to the Regulations] made in December 2013 do not affect the issues arising in the present case. Both before and after December 2013 the effect of the Regulation may be summarised as being that the presence of an adult who requires overnight care may entitle the HB claimant to an additional bedroom but the presence of a child who requires overnight care does not.

In my judgment, it would be sensible and helpful for these cases to be before the Supreme Court and heard with MA. For this purpose I would grant permission to appeal in SR. In A, I would grant permission to appeal on the Article 14 claim, and the PSED claim. I would do so not on the basis that I consider that these claims have a real prospect of success in the Court of Appeal, but because for the reason I have mentioned there is within the meaning of CPR 52.3 another compelling reason for permission to appeal to be granted. I would accordingly lift the stay in A. I would refuse permission to appeal on the Article 8 claim, which in my judgment is hopeless. A’s Article 8 rights in relation to her home have not been infringed, and there is no evidence of an unacceptable risk of her eviction which might infringe her Article 8 rights.

I agree with Sir Stanley Burnton that permission should be granted in both appeals, save as regards the claim in A under article 8, which I regard as hopeless for the reasons he gives.  For myself, I would be inclined to hold that even if MA was rightly decided there is an arguable issue on the article 14 claim in both appeals because of the fine distinctions which are necessary to reconcile that decision with Burnip; but it is unnecessary to express a concluded view about that, or about the arguability of the challenge based on the PSED, because I agree with Sir Stanley that permission should in any event be granted under the second limb of rule 52.3 (6). 

The appeals will be listed in the Michaelmas term so as to give the opportunity for any further appeal to be heard with MA in the Supreme Court in March 2016 if permission is granted: whether permission should be granted is not a matter for us, but I agree with Sir Stanley that the Supreme Court is indeed likely to be assisted by having the circumstances of these cases before it.