DWP wins permission to take landmark housing benefit case to Supreme Court

The Supreme Court has granted the Department for Work & Pensions permission to appeal a landmark ruling that housing benefit rules were discriminatory.

A three-judge panel comprising Lord Walker, Lord Kerr and Lord Reed granted permission on 30 October in the case of Secretary of State for Work and Pensions (Appellant) v. Burnip and others (Respondents) UKSC 2012/0166.

The Court of Appeal case centred on two scenarios where the housing benefit claimant needed an additional room for:

• a non-resident overnight carer. (Housing benefit regulations had already been amended to allow an additional room in such cases from April 2011. However, the appellant continued the claim in relation to periods before that date);
• children with serious disabilities where it is claimed that it is inappropriate for them to share a bedroom.

The claimants were all housed in the private rented sector.

On 15 May this year the Court of Appeal overruled earlier decisions of the Upper Tribunal and unanimously held that the size criteria in the Local Housing Allowance (LHA) discriminated unlawfully against the three appellants, on grounds of disability, by not including provision to meet their need for an additional room.

The court also ruled that this was in breach of Article 14 of the European Convention on Human Rights (non-discrimination), and that the DWP had failed to establish an objective and reasonable justification for this.

It is understood that the DWP will argue before the Supreme Court that the use of the size criteria in the Local Housing Allowance (LHA) is not discriminatory or in any case can be justified.

In a circular issued in August, the Department said: “While there has been no change to the housing benefit legislation, the Court of Appeal judgment is relevant case law and as such local authorities are legally bound to apply the judgment when determining applications for housing benefit under the LHA size criteria:

• those who need an extra room for a non-resident carer are already able to get HB for that due to amendments made in April 2011. The judgment does not change that;
• those whose children are said to be unable to share a bedroom because of severe disabilities will be able to claim housing benefit for an extra room from the date of the judgment.”

See also: 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.