This article is an update on ‘Disability and discrimination: a case for special treatment' in Bulletin 226. That article discussed the arguments put forward in the case of Burnip v Secretary of State for Work and Pensions. In this article we consider the Court of Appeal’s decision in Burnip and the joined cases of Trengove and Gorry.
Richard Gorry has two disabled daughters, aged 10 and 8 at the material time, who have disabilities the nature of which means they cannot share a bedroom. The size criteria for the local housing allowance are set out in regulation 13D(3) Housing Benefit Regulations 2006. The regulations only allow for one bedroom to be shared between the two girls. There is no discretion in the regulations to allow for additional rooms in exceptional circumstances. Mr Gorry was awarded housing benefit (HB) for a three bedroom property, when his family, which also included an older son, needed a four bedroom property. That left a shortfall of £73.84 a week. He received discretionary housing payments which did not make up the full amount of the shortfall, and were awarded for a period considerably shorter than his tenancy. In their search for accommodation they could afford, the Gorry family moved house 13 times in 10 years.
In IB v Birmingham City Council (HB)  UKUT 23 (AAC), Judge Howell dismissed the appeal of Ian Burnip, a severely disabled student who needed 24-hour care from a team of ‘rolling’ carers, against the decision to award him HB for a one bedroom flat, when he needed a flat with two bedrooms so he could accommodate his carers. The judge considered the principle in Thlimmenos v Greece (2001) 31 EHRR 15, a case in which the ECtHR held that there could be discrimination ‘when States without an objective and reasonable justification fail to treat differently person whose situations are significantly different.’
The judge held that there was no adverse differential treatment, because in the context of a social security scheme, which, as he saw it, discriminated in favour of people with disabilities; as a student he was able to receive HB because he was disabled. The claimant was not treated worse than someone who was not disabled. The Thlimmenos principle did not apply where, as he put it, the claimant was asking for additional benefits, and not challenging an exclusionary rule. As a result, no discrimination arose. He applied the principles in AM (Somalia) v Entry Clearance Officer  EWCA Civ 634 to hold that any discrimination would have been justified in any event. AM (Somalia) was a case about whether the immigration rules requiring a sponsor who was incapable of work to maintain her/his spouse for her/him to get entry clearance to the UK, discriminated on grounds of disability, and it listed a number of factors to consider on justification in cases of indirect discrimination.
The decision in IB’s case was followed in Lucy Trengove’s case. Lucy was also severely disabled and needed a team of carers to care for her 24 hours a day, but she was not a student. The decision in Burnip was also followed by Judge Turnbull in the Gorry case. All three decisions were appealed to the Court of Appeal.1The Equalities and Human Rights Commission intervened.
The situation of claimants such as Ian Burnip and Lucy Trengove was addressed by the amendments made to the HB regulations with effect from April 2011, which allowed for an extra room for a carer for claimants with the higher rate of the care component of disability living allowance, or equivalent needs. The government has confirmed that this will be carried over into universal credit when it comes in. However, the situation of claimants such as Richard Gorry, who have disabled children unable to share a bedroom has not been addressed.
In its judgment on 15 May, the Court of Appeal upheld the appeals of Ian Burnip, Lucy Trengove and Richard Gorry against the decisions of the Upper Tribunal in their respective cases.2The arguments put forward in the cases were discussed in Bulletin 226.
The Court of Appeal took a radically different approach to that taken by the Upper Tribunal judges. It accepted this was a case of indirect discrimination falling within Article 14: ‘Where, as in the present case, a group recognised as being in need of protection against discrimination – the severely disabled – is sig-nificantly disadvantaged by the application of ostensibly neutral criteria, discrimination is established, subject to justification.’ In such a case, the court held, there is no need for statistical evidence.3
The Court rejected a submission that, on the basis of Lewisham BC v Malcolm  1AC 1399, the appropriate comparator was an able bodied person in an otherwise identical position, and held that case was confined to the construction of s24 Disability Discrimination Act which was not in play in this case, and had subsequently been amended: ‘It would be quite wrong to resort to Malcolm so as to produce a restrictive approach to Article 14.’
The Court went on to consider the principle in Thlimmenos, which the claimants argued was engaged by the state’s failure to make provision in the benefit system to recognise the greater level of need of a disabled person to enable her/him to live in a dignified manner in the community. The Court held that there was no prior limitation on this principle in cases where the state is required to ‘take pos-itive steps to allocate a greater share of public resources to a particular person or group’. It accepted that the Court should consider justification offered by the state with care in these cases, but held that there was discrimination for the purposes of Article 14.
The Court also considered whether re-liance could be placed on the UN Convention on the Rights of Persons with Disabilities to interpret the legislation. There was mixed caselaw on this. The Court considered that if the law had been unclear, the claimants could have relied on the Convention to resolve that uncertainty in their favour, but in this case there was no uncertainty.
The Court accepted that direct discrimination on grounds of ‘an innate and largely im-mutable characteristic, closely connected with an individual’s personality and life chances’, such as congenital disability, ‘may in principle fall within the category of grounds for discrimination which can be justified only be very weighty reasons’. However, as this was a case of indirect discrimination, the level of justification required was the ‘usual standard, not an enhanced one’. This is objective and reason-able justification as set out in Stec, and it is not met where the difference in treatment ‘does not pursue a legitimate aim, or if there is not a rea-sonable relationship of proportionality between the means employed and the aim sought to be realised’.4Where matters of ‘economic or social strategy’ are concerned the state has a ‘wide margin’ of appreciation, the Court will be reluctant to intervene unless a policy is ‘manifestly without reasonable foundation’.5
The Court went on to apply the test in Stec to the facts of this case. It undertook a detailed analysis of the benefits received by Ian Burnip, based on the one conducted by Judge Howell,6 and concluded that the benefits he received apart from HB were all intended to meet subsis-tence needs and it would be ‘wrong in principle’ to regard subsistence benefits as notionally available to meet the shortfall in his housing costs. It also considered the discretionary housing payments received by the claimants; the DWP guidance for when these should be paid covered circumstances where the claimant requires an extra room because of a health problem. It concluded that because these were discretionary, unpredictable, paid out of a capped fund, and did not cover the full amount of the shortfall, or the full period of the tenancy, they also did not provide justification for the discrimination suffered by the claimants.
The court considered the reliance that had been placed by Judge Howell on the justification in AM (Somalia). It held that case was distinguishable on four grounds. Firstly it was a case about immigration control, ‘where ... the courts are particularly reluctant to interfere in matters of policy. On the contrary we are here concerned with a benefit (HB) the purpose of which is to help people to meet their basis human need for accommodation of an acceptable standard.’ Secondly, the ‘exception is sought for only a very limited category of claimants’; claimants with disabilities suffi-ciently severe to need 24-hour care or children with disabilities the nature of which means they cannot share a room. Thirdly, these cases are few, ‘easy to recognise, not open to abuse, and unlikely to undergo change or need regular monitoring.’ So the cost and administration involved should be ‘modest’, particularly when weighed against the additional cost to the public purse if the disabled person had to go into residential care. In the Gorry case, the children might have had to go into care. Finally, the fact that parliament has legislated for cases like those of Ian Burnip and Lucy Trengove, in a time of austerity, also recognises the justice of the claims and proportionate nature of the cost.
The Court’s comments here are very helpful. They recognise the essential role of HB in providing accommodation for people. They also suggest that the courts may be more willing to intervene in social security cases than in immigration cases. They also are very welcome in that they recognise that the costs of not making the changes the claimants seek, in this instance residential care for the claimants (or in the Gorry case, accommodating the chiidren in care), need to be considered in weighing up the cost of the changes the government is being asked to make.
The Court rejected Judge Howell’s approach, pointing out: ‘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.’
The Court of Appeal’s judgment represents a rare, important, and very welcome victory for a discrimination argument in a social security context. The full impact of the judgment has yet to be worked out, but it will mean that where HB claimants, or members of the household of a HB claimant, cannot share a bedroom because of disability, the size criteria will have to be disapplied. When the government extends the size criteria to the social rented sector as part of its welfare reform agenda, allowance will need to be made for claimants in the situation of the claimants in this case. The principles in this case should extend to cases where couples are unable to share a bedroom because of disability.
As Lord Justice Maurice Kay observes at the beginning of his judgment; ‘Disability can be expensive.’ The decision is very valuable in that is recognises that provision of benefits for disabled people does not amount to discrimination in their favour, but that instead disabled people are entitled to benefits by right to help put them in the same position as people who do not have disabilities.
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- 1. Ian Burnip was represented by Irwin Mitchell Solicitors. Lucy Trengove very sadly died before the hearing took place, but her appeal was continued by her mother as her personal representative. She was represented by Birmingham Law Centre. Richard Drabble QC was leading counsel in all three cases, Tim Buley was junior counsel in Burnip and Gorry, and Desmond Rutledge was junior counsel in Trengove. The EHRC was represented by Helen Mountfield QC.
- 2. IB v Birmingham CC (HB)  UKUT 23 (AAC), LT v Walsall MBT 2011UKUT (AAC), RG v SSWP and North Wiltshire DC (HB)  UKUT 198 (AAC). There was also a similar decision in KM v South Somerset DC (HB)  UKUT 148 (AAC), but the facts in that case were different, in that the claimant was a member of a couple, who needed an extra bedroom to store equipment related to her disability. That decision was not appealed further.
- 3. There is extensive caselaw to this effect, the court cited Hoogendijk v Netherlands (2005) 40 EHRR SE22 as an example
- 4. Stec
- 5. Stec
- 6. The court rejected Judge Howell’s contention that Mr Burnip would have lost the severe disability premium on the basis he would have had a non-dependent living with him – ‘rolling’ carers would not count as non-dependents because, having accommodation elsewhere, they would not be counted as ‘normally living with’ the claimant.