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Bedroom tax case: don’t forget the ECHR

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Not enough has been said about the human rights legal dimension to the successful bedroom tax cases in the Supreme Court. It is important for two reasons:

  1. The cases succeeded thanks to Britain’s adherence to the European Convention on Human Rights where homegrown “British” law was unable to help (apart from the Human Rights Act, giving access to ECHR remedies). Neither English Common Law nor British parliamentary anti-discrimination legislation could assist either the Rutherfords or Jacqueline Carmichael gain exemption from having housing benefit docked  for their “extra” bedrooms.
  2. An earlier judgment of one of the cases, when it came before Lord Justice Laws, was intended to place a clear marker down discouraging such  cases based on ECHR rights on the grounds that “the courts are not the proper arbiters of public controversy”. The Supreme Court has therefore repudiated Laws’ attack on ECHR remedies.

The legal cases
The cases challenged the bedroom tax regulation on the grounds that it failed to give entitlement to an extra bedroom (without having housing benefit reduced) in cases where the bedrooms were needed for disabled people. The regulation restricts exemptions to “a relevant person … who requires overnight care; or a relevant person [who] is a qualifying parent or carer” (Regulation B13 (6). The relevant person (in paragraph 9) is the housing benefit claimant, his/her partner or another person liable to pay rent and his/her partner (see regulations below in full). But, as Lord Toulson noted in the latest case: “A person who requires overnight care is defined in Reg 2(1) in terms which have the effect of not including any child”.

Paul and Susan Rutherford care for a grandson in a specially adapted three-bedroom house and require an overnight carer for the child, a situation not catered for in the regulations. Mrs Carmichael is disabled herself but doesn’t require “overnight care”; she simply cannot share a bedroom with her husband, Jayson. Both families therefore fell outside the regulations and had to rely on Discretionary Housing Payments (DHP) administered by the relevant local authority.

The claimants argued that the rules discriminated between categories of disabled people, so those not needing overnight carers were penalised for nevertheless needing an additional bedroom. The Government argued that the DHP regime was sufficient to comply with the law against discrimination.

Setting aside the human rights issues, the claimants (who included five others whose claims failed) sought to engage the Equality Act 2010 under which (in section 149) the “Public Sector Equality Duty” (PSED) requires a public authority (including the government in issuing regulations) to “have due regard to the need to eliminate discrimination” and “advance equality of opportunity between persons who share a relevant protected characteristic [here disability] and those who do not share it”. 

In the lower courts Mrs Carmichael’s case had failed. In R (MA) v Secretary of State at the Court of Appeal (actually the Carmichael case) the Government successfully argued its regulations could not reasonably cover an “imprecise class of persons to whom the bedroom criteria would not apply because they needed extra bedroom space by reason of disability”. DHP was sufficient to cover such cases.

Furthermore the Government did not fall foul of the PSED, according to Court of Appeal judges, because “due regard” to the relevant considerations had been taken when making the decision. Toulson, in the Supreme Court, agreed with this position, saying:  

“Lord Dyson MR, [at para 91 of his court of appeal judgment in MA], accepted that it was not sufficient for a decision-maker to have a vague awareness of his legal duties. Rather, he must have a focused awareness of the duties under section 149 of the Equality Act and, in a disability case, their potential impact on people with disabilities. On the history of events and the evidence … the courts were well entitled to reach the conclusion that they did.”

So what of the successful ECHR-based case?

ECHR principles in play
Discrimination may be justified under European Human Rights law if there is good reason for it but

“A difference of treatment is … 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 Stec principle from Stec v United Kingdom 43 EHRR 47).

Economic reasons (such as government deficit reduction) or fair distribution of property or some important social strategy might be accepted as justification. A national Government might be given a “margin of appreciation” to set such policies on the basis that “national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds”.

The legal test used is whether the state’s action is “manifestly without reasonable foundation”, a test established in James v United Kingdom (1986) 8 EHRR 123. (In that case the policy objectives of leasehold enfranchisement were held to outweigh the rights of freeholders under Article 1 Protocol 1 of the European Convention regarding protection of property rights). 

So, the ECHR approach should not be seen as an easy ride for claimants. Governments will be given a good deal of deference on matters of high policy and a tough test will be applied before the presumption in their favour is overturned. The claimants argued the “manifestly without reasonable foundation” test was too tough under the circumstances since: “Their complaint is simply that the manner of implementation of the policy discriminates against a vulnerable group, and that it is right to require weighty reasons to justify the discrimination rather than the broader policy itself.”

The UK courts in the past had spotted gaps in provision “for there are some people who suffer from disabilities such that they have a transparent medical need for an additional bedroom”, Toulson noted – see R (Burnip) v Birmingham City Council and Gorry (same case).

As a result of Gorry, the rule that children of the same sex could sleep in the same room (so an additional room would attract the “bedroom tax” penalty even if a child was sleeping in each) was relaxed when one was disabled and needed a room of their own. But the rule change did not extend to adults so Mrs Carmichael was not covered. In the Rutherfords’ case, a rule change due to Burnip covered adults needing overnight care but not children.

Toulson declared: “There is no reasonable justification for these differences.” As a result: “I would therefore dismiss the Secretary of State’s appeal in the Rutherford case, [and] I would allow Mrs Carmichael’s appeal and would hold that in her case there has been a violation of article 14, taken with [private and family rights under] article 8.” In other words she could expect family rights protected under Art 8 and this ECHR right should be accorded her without discrimination, as per Article 14.

• One of the cases before the Supreme Court that failed was that of “A” a female victim of domestic violence living in accommodation adapted with a sanctuary room. The court rejected the view of the Court of Appeal that the reasoning in R (Burnip) v Birmingham City Council applied: there was discrimination “because Reg B13 had a disparate adverse impact on persons with disabilities”, that the discrimination could not be legally justified, and that such cases “were by their nature likely to be relatively few in number, easy to recognise, not open to abuse and unlikely to undergo change or need regular monitoring”. Toulson said however:

“The reason that A has three bedrooms is not that she needs three bedrooms, but that no two bedroom properties were available when she first moved there. As I have said her reasons for wanting to stay where she is are strong but unrelated to the size of the property. The fact that people may have strong personal or social reasons for wanting to stay in their property for reasons unrelated to the number of bedrooms (of which A is one example in her particular circumstances) was recognised and was planned to be taken account of through DHPs.”

Twitter: alrich0660

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 in the Supreme Court here.

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 

See also:
Human Rights Act: are these cases trivial?     

Burnip v Birmingham City Council Court of Appeal [2012] EWCA Civ 629,
R (MA & Others) in the
High Court: [2013] EWHC 2213 (Admin)
R (MA & Others) 
in the Court of Appeal: [2014] EWCA Civ 13   
in the
High Court 2014 EWHC 1631
Rutherford and Others v Secretary of State 
Court of Appeal [2016] EWCA Civ 29
R (MA/Carmichael and others), R (Rutherford and others) v Secretary of State 
(Supreme Court) [2016] UKSC 58

The Housing Benefit (Amendment) Regulations 2012 re B13:

Regulation B13(5) 
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.

Article 8 
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.



About alrich

Journalist and blogger on legal and financial/economics issues

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