Anti-bedroom tax campaigners are very pleased about the Court of Appeal case that has found unlawful discrimination in an element of the Government’s policy to punish “under-occupiers” of social housing. Sadly their joy may be premature. The Court of Appeal’s ruling in Rutherford and Others v Secretary of State  EWCA Civ 29 was very much a holding judgment. When the case is reviewed in the UK Supreme Court (Note: the Rutherfords have now won their case in the Supreme Court: see note at end) the issues of right and wrong about how we treat disabled people or rape victims will be largely overlooked. Instead issues of legal proceduralism, high policy (plus low politics) and constitutional wrangling are likely to hold sway.
The essence of the case for the Rutherfords, who care for a disabled grandson, and for “A”, a rape victim (who has a son by her rapist) and has a panic room in her house, is that their situations should have been covered by exceptions to the Bedroom Tax provisions (ie the cut in Housing Benefit when a family has “extra” rooms).
If the benefit claimant is disabled or has a disabled partner an exemption might apply (if overnitght care is required). But not if a benefit claimant is caring for a disabled child. And there is no mention of rape victims in fear of further attack. There is, though, a system of Discretionary Housing Payments (DHP) for those who might have needs “which could be met by DHP”. They are administered by the relevant local authority.
The claimants’ case is that their exclusion in the legislation (Regulation B13, set out here) from the categories whose position “has to be taken into account” (in the clumsy phraseology of the regulation) is unlawful discrimination under Article 14 of the European Convention on Human Rights (ECHR) (and under public sector equality duty under s.149 of the Equality Act 2010) – on grounds of sex for A and disability for the Rutherfords and their grandson.
The Secretary of State, Iain Duncan Smith, acknowledges the prima facie discrimination. The issue therefore became: is there an “objective and reasonable justification for that discrimination which was not manifestly without reasonable foundation”. Broadly the defence is that the DHP is there to cover categories of people who don’t have to be taken into account under Regulation B13 but may have good cases for an exemption. Although their housing benefit would be reduced, DHP might (if the local authority agrees) fill the gap.
The Department for Work and Pensions’ case was rejected and Regulation B13 ruled unlawful to the extent it didn’t cover A and the Rutherfords’ situation. But the Court of Appeal judges had not considered, and indeed refused to consider, the crucial arguments. The reason for this was that they would be considered instead, in relation to another but similar case R (MA) v DWP (taking into account Burnip v Birmingham City Council  EWCA Civ 629) by the UK Supreme Court in March. So, as Lord Thomas, Lord Chief Justice, put it:
“No useful purpose would have been achieved by our hearing argument on whether the principles set out in MA were correctly decided or whether its analysis of Burnip was correct. That applies also to arguments in relation to the use of further international instruments beyond those referred to in MA, the general approach to discrimination, and the appropriate standard of review for justification …”
So the two new cases have been pushed through the court system with the Court of Appeal being a funnel to get them to the Supreme Court – possibly on the same day as MA if that suits their lordships. “We are content to leave all more fundamental arguments to be debated in the forthcoming Supreme Court hearing,” Thomas CJ said.
So what are the chances of success for the anti-bedroom tax fight when the matter does come to court again? Well Burnip (a set of several cases) was a win and in Mr Burnip’s case there has even been an amendment to legislation. But MA went the Secretary of State’s way. There was prima facie discrimination (as accepted by the DWP) but there was an objective justification. Regulation of property for the general good is an exception to Article 14 (and the declared purpose of the bedroom tax) and the DHP was deemed a reasonable response to deal with hard cases that fell outside B13. (It’s a bit more complicated. Those interested may wish to read this analysis of the original High Court case of MA).
Lord Dyson in the Court of Appeal in MA had said: “The court must be satisfied that there is a serious flaw in the scheme which produces an unreasonable discriminatory effect.” This was not found in MA. Dyson declared that the Secretary of State must have a “focused awareness of each of the duties” under the public sector equality duty – and apparently Duncan Smith had just such a focused awareness, so everything was fine.
Now, in the case of A, the Court of Appeal did not find a public sector equality duties breach but A succeeded on Article 14. In the Rutherford case it was found that the Secretary of State breached a duty regarding the best interests of children in formulating the B13 regulation and discrimination against children in relation to adults (who are covered by the “exemption” implied by B13.
But much depends on the coming review of MA in the Supreme Court. All this means is that the Court of Appeal judgment in Rutherford produced something of a nominal finding in favour of the applicants and against the DWP – but, significantly, with no redress other than a declaration of an Article 14 breach. Thomas said simply:
“We think it appropriate to cut through the detailed arguments that were addressed to us on the question of remedy. In both cases, we think that we should declare simply that ‘the Appellants have suffered discrimination contrary to Article 14 of the ECHR on the basis set out in the judgment of the court’.”
There was some discussion about the use of DHPs, the fact they were discretionary and therefore discriminatory in a case such as A’s. Her position came within Burnip (ie was a winner) and so Thomas said: “Burnip obliges us also to decide that the Secretary of State was not entitled to decide that the better way of providing for A and those in a similar position was by way of DHPs, even though that would be a more flexible approach.” People like A need certainty, not a “flexibility” that benefits only the Local Authority.
It’s a victory of sorts, but not exactly a ringing endorsement of the anti-bedroom tax case. On the Rutherfords’ case Thomas says:
“We accept that DHPs were intended to provide the same sum of money, but we are not persuaded that this justifies the different treatment of children and adults in respect of the same essential need within the same Regulation, as neither the Regulation nor the policy behind the Regulations addressed the best interests of the child as a primary consideration.”
It is a good point, not least because the “Secretary of State cannot in the case of the need for accommodation for the carers of disabled children demonstrate that DHPs will always be available”. But it is a holding position and it will be for the Supreme Court to do the heavy lifting on these cases – and the campaigners to press hard the moral justice of their position on Duncan Smith whatever the technical legal outcome.
Note: The Supreme Court has now issued a judgment (9 November 2016) in favour of the Rutherfords and another claimant, Jacqueline Carmichael, on Bailii. org here: R (MA & Others/O’Rourke) v Secretary of State for Work and Pensions but rejected the cases of other claimants.
The case is examined by Nearly Legal here: With and without foundation.
As mentioned above, the Lord Justice Laws judgment in R (MA) is examined on Thinking Legally: Laws’ law of non-intervention
Housing blog Nearly Legal looks at Rutherford in the Court of Appeal here and considers that the Court of Appeal judgment will give the secretary of State considerable difficulty in the Supreme Court: “there are suggestions in this judgment [Rutherford] that a broad brush approach to justification by waving at the DHP scheme may not be enough. And now, the Secretary of State must also argue, in effect, that Burnip was wrong, and that even discrimination against narrow, easily recognisable classes should be justified by DHPs.”
Other bedroom tax posts
Zahawi’s false assurance is here
Duncan Smith needs a new benefits thinking cap is here
What Raquel Rolnik really said on the bedroom tax is here
Duncan Smith’s vindictive ploy is here
Burnip v Birmingham City Council Court of Appeal  EWCA Civ 629,
R (MA & Others) in the High Court:  EWHC 2213 (Admin)
Rutherford in the High Court 2014 EWHC 1631
Rutherford and Others v Secretary of State Court of Appeal  EWCA Civ 29
R (MA/Carmichael and others), R (Rutherford and others) v Secretary of State (Supreme Court)  UKSC 58
The Housing Benefit (Amendment) Regulations 2012 re B13
Lord Neuberger, President of the UK Supreme Court, said this in R (RJM) v Secretary of State for Work and Pensions  AC 311
“The fact that there are grounds for criticising or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable.”
The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant’s dwelling as their home (and each person shall come within the first category only which is applicable)—
(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,
and 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 each of them is).”
The claimant is entitled to one additional bedroom in any case where –
(a) a relevant person is a person who requires overnight care; or
(b) a relevant person is a qualifying parent or carer
In this regulation ‘relevant person’ means –
(a) the claimant;
(b) the claimant’s partner;
(c) a person (“P”) other than the claimant or the claimant’s partner who is jointly liable with the claimant or the claimant’s partner (or both) to make payments in respect of the dwelling occupied as the claimant’s home;
(d) P’s partner.”
Article 14 ECHR
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.