Sizing up equality

Ken Slade and Morris Hill examine the impact on the disabled of the Court of Appeal's decision in the Burnip housing benefit case.

Article 14 of the European Convention on Human Rights guarantees that “The enjoyment of the rights and freedoms set forth in this 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” and it is common ground that ‘other status’ includes freedom from discrimination based on disability.

The Housing Benefit (Amendment) Regulations 2010/2835, specifically Regulation 2(6)(b), have been in force since 1 April 2011, which deals with the issue of an additional bedroom required for claimants requiring overnight care. This was the crux of the appeal in the first two cases heard in Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629, those of Mr Burnip and Ms Trengrove.

However, no such legislative provision has been made to address the scenario that was exemplified by the Gorry family’s situation – a family with three children, two of whom were disabled but who would, under the current Regulations, be expected to share a bedroom as a ‘single occupier’ for Housing Benefit purposes (under the Housing Benefit Regulations 2006, Regulation 13 D3.

Maurice Kay LJ noted that, in the Gorry case: “Two of the children are girls who, at the material time, were aged ten and eight. Both were 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…” so the Gorry case must, in view of the judgment in Burnip, be considered separately from the first two appeals for this reason if no other.

Henderson J noted that in the case of Mr Burnip, who required an overnight carer, “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.” He went on to observe that the fact that Parliament had legislated to deal with cases of those requiring accommodation for overnight carers suggested that there had been a recognition and acceptance of this as an entirely valid basis for this claim.

He also stated though that such cases, including those based on the Gorry scenario, would be applicable “…for only a very limited category of claimants…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.” If the appellants’ landlords had been their respective local authorities, their accommodation would have been given to them on the basis of their assessed housing needs, which would have included those needs which arose as a result of their or the family members’ disabilities.

The ramifications for the Government’s proposals to prevent under-occupation in the social housing sector, which are based on those for the private rented sector are clear. Currently, Housing Benefit in the social rented sector is not subject to the size criteria restrictions of the private rented sector, from which all three cases in the Burnip decision emanated and which has now been held to be unlawfully discriminatory. Following the Court of Appeal’s decision, a spokesperson for the Department of Work and Pensions simply said that the Government would carefully consider its response to the judgment, but, as it stands, the position for families with more than one disabled child remains uncertain. In spite of Henderson J’s comments about the size of this potential constituency, the nature and range of disabilities which might give rise to a requirement for separate bedrooms was not considered.

Even beyond the Gorry scenario, however, there are further ramifications arising from the court’s decision. Whilst these cases only arose because all three claimants were housed in the private rented sector, the judgment still marked a significant step forwards. This was only the third case in which it has been held that a welfare benefit rule breached Article 14 of the ECHR and it was the first domestic case in which an Article 14 claim had succeeded under the principle in Thlimmenos v Greece ((2001) 31 EHRR). In Thlimmenos, it was held that, in certain circumstances, the State may be required to treat people more favourably than others in order to take account of differences in their circumstances (i.e. a disability). Here, the Court of Appeal rejected the narrow approach to Thlimmenos discrimination for which the Government had argued.

This leads on to the final interesting and also potentially significant part of the judgment of Maurice Kay LJ, about the effect of the United Nations Convention of the Rights of Persons with Disabilities (CRPD). He reached his conclusions on discrimination without needing to make any reference to CRPD, so the remarks that he made are entirely obiter, but he noted that the European Court of Human Rights had “…shown an increased willingness to deploy other international instruments as aids to the construction of the European Convention of Human Rights”. This was in contrast to the comments made by Sales J in the High Court decision of NM v Islington ((2012 EWHC 414) earlier this year. He went on to sum up the correct use of the CRPD in this way: “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 CRPD 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.”

These comments, albeit obiter, might be seen to be a veiled warning. Notwithstanding the Government’s immediate problem of the likely illegality of its proposals to extend the existing size criteria from the private rented sector to the social housing sector in an attempt to tackle issues of under-occupancy, as well as the moves forward for which the judgment has been responsible in terms of the relationship between welfare benefits and Article 14, the future for a potentially significant variety of disability discrimination claims might look very different if the CRPD is used.

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