The Supreme Court held that the housing benefit under-occupation rules unlawfully discriminated against Mrs Carmichael, who could not share a bedroom with her husband because of disability, and against the Rutherford family, whose disabled grandson needed an overnight carer. Those cases were not reasonably distinguishable from situations the regulations already exempted. The rules did not unlawfully discriminate against the other disabled claimants or against A, who lived in sanctuary-scheme accommodation.
The appeals concerned Regulation B13 of the Housing Benefit Regulations 2006, introduced from 1 April 2013. It reduced housing benefit for working-age social-sector tenants treated as under-occupying their homes: by 14 per cent for one excess bedroom and 25 per cent for two or more. Bedroom entitlement depended principally on the number, ages and sexes of the occupants. Limited disability-related provision was later added, including an extra bedroom for a relevant adult requiring overnight care and for a child who could not share a bedroom. A child requiring overnight care was not within the overnight-care definition. Discretionary housing payments could be made by local authorities from a centrally funded, cash-limited scheme. The court was not concerned with the political merits of the policy or its general legality, only with its effect on these claimants.
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The claims and the test
The claimants were social tenants receiving housing benefit. They contended that the regulation violated article 14 of the European Convention on Human Rights, taken with article 8 and/or article 1 of the First Protocol. A also alleged a breach of the public sector equality duty in section 149 of the Equality Act 2010. Disability and sex were accepted as relevant statuses or protected characteristics, and housing benefit fell within the scope of the property right.
Lord Toulson, with whom Lord Neuberger, Lord Mance, Lord Sumption and Lord Hughes agreed, held that the courts below had applied the correct test: whether the difference in treatment was manifestly without reasonable foundation. Following Stec v United Kingdom and Humphreys v Revenue and Customs Commissioners, choices about welfare systems attract a wide margin because they concern economic and social policy. The claimants could not avoid that test by attacking the regulation’s detailed implementation rather than the policy itself. The Secretary of State’s reasons still required careful scrutiny.
Where the disability distinction failed
In Burnip v Birmingham City Council, the Court of Appeal had found unjustified discrimination where an adult needed an overnight carer and where children could not share a bedroom because of severe disability. Amendments afterwards covered those situations, but not the corresponding situations here.
Mrs Carmichael could not share a bedroom with her husband because of disability. The Rutherfords needed a bedroom for carers who stayed overnight to look after a disabled child. The rules already recognised comparable needs for children unable to share and for adults needing overnight care.
Lord Toulson found no sensible justification for either distinction. The best interests of children might explain some differences in bedroom sharing, but not why disabled adult partners should be treated less favourably than disabled children who cannot share, or why carers of disabled children should be treated less favourably than carers of disabled adults. He adopted the Court of Appeal’s description of an ironic and inexplicable inconsistency in the Secretary of State’s approach. Discretionary payments, even if intended to provide the same money, did not justify different treatment of the same essential need within the same regulation. Article 1 of the First Protocol added nothing in Mrs Carmichael’s case.
Where individual assessment was justified
The other disability claims did not involve that transparent medical need for another bedroom. Mr Daly’s severely disabled son stayed with him regularly, but for less than half the time; his exclusion from the bedroom calculation had nothing to do with disability. Mr Drage occupied a three-bedroom flat filled with accumulated papers connected with his obsessive compulsive disorder, but that did not establish a need for three bedrooms. JD and AD, JD’s severely disabled adult daughter, lived in specially adapted three-bedroom accommodation, but had no objective need for that number of bedrooms. Mr Rourke and his stepdaughter used one bedroom to store equipment. Each might have a strong case for discretionary help, particularly where accommodation had been adapted, but it was reasonable to assess that case individually. The Secretary of State also had a reasonable foundation for refusing a blanket exemption for every person meeting the broad Equality Act definition of disability: the impact varied with the disability and with personal and housing circumstances.
Sanctuary accommodation and the equality duty
A lived in accommodation adapted under a sanctuary scheme to protect her and her child from violence. The majority held that her need to remain safe in that home could be addressed through discretionary housing payments.
The majority also held that the public sector equality duty had been met. The evidence showed focused consideration of disability. An equality impact assessment had addressed gender distribution, and failing to isolate the very small sanctuary-scheme group was not a breach, especially because membership of such a scheme did not automatically mean that an extra bedroom was needed.
Lady Hale, with whom Lord Carnwath agreed, dissented only in A’s case. She considered A’s need to be a need to remain in her adapted safe haven, not a need for more space. Denying the benefit required to stay there treated her like any other single parent despite the state’s positive obligation to protect victims of gender-based violence. The discretionary scheme’s cash limit, uncertainty, stricter means test and more burdensome challenge did not justify that discrimination, and the impact assessment’s failure to consider victims of gender-based violence breached the equality duty. She agreed with the majority on the disability claims.
Verdict: The disability rulings were unanimous. Mrs Carmichael won her discrimination appeal, the other MA claimants lost theirs, and the Secretary of State lost the Rutherford appeal. The MA claimants’ Equality Act appeals were dismissed. In A’s case the Secretary of State won and A’s equality-duty cross-appeal was dismissed, both by five votes to two. Lady Hale and Lord Carnwath dissented on A’s case.
Source: R (Carmichael, Daly, A and Rutherford) v Secretary of State for Work and Pensions [2016] UKSC 58
