“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.”
“The Secretary of State may by regulations make provision conferring a power on relevant authorities to make payments by way of financial assistance (“discretionary housing payments”) to persons who— (a) are entitled to housing benefit or council tax benefit, or to both; and (b) appear to such an authority to require some further financial assistance (in addition to the benefit or benefits to which they are entitled) in order to meet housing costs.” (a) are entitled to housing benefit or council tax benefit, or to both; and (b) appear to such an authority to require some further financial assistance (in addition to the benefit or benefits to which they are entitled) in order to meet housing costs.”
“(1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. ... (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.”
“11(1) Subject to the following provisions of this regulation, housing benefit shall be payable in respect of the payments specified in regulation 12(1) (rent) and a claimant’s maximum housing benefit shall be calculated under Part 8 (amount of benefit) by reference to the amount of his eligible rent determined in accordance with – (a) regulation 12B (eligible rent)... Regulation 12B makes provision for the determination of eligible rent, but does not itself contain the disputed criteria. In summary the eligible rent is the rent due subject to certain adjustments (see in particular Regulation 12B(2)). Regulation A13(1) requires the relevant authority (subject to exceptions with which we are not concerned) to “determine a maximum rent (social sector) [that is, for accommodation in the public rented sector] in accordance with regulation B13”
“(1) ... [A] relevant authority may make payments by way of financial assistance (“discretionary housing payments”) to persons who – (a) are entitled to housing benefit; and (b) appear to such an authority to require some further financial assistance (in addition to the benefit to which they are entitled) in order to meet housing costs.”
“While I would accept that congenital disabilities of the kind suffered by Mr Burnip, Ms Trengove and Mr Gorry’s daughters may in principle fall within the category of grounds for discrimination which can be justified only by very weighty reasons, I would nevertheless reject this submission for the same reasons that a similar submission was rejected by this Court in AM (Somalia): see paragraphs 15 to 16 of the judgment of Maurice Kay LJ, and paragraphs 61 to 62 of the judgment of Elias LJ. Weighty reasons may well be needed in a case of positive discrimination, but there is no good reason to impose a similarly high standard in cases of indirect discrimination, or cases where the discrimination lies in the failure to make an exception from a policy or criterion of general application, especially where questions of social policy are in issue. As in AM (Somalia), therefore, the proportionality review applicable in the present case must be made by reference to the usual standard, not an enhanced one.”
“[T]rying to define ‘significantly adapted accommodation’ for exemption purposes would not be workable. Such an exemption would be difficult and expensive to deliver effectively, especially within Universal Credit. It would either be too broad brush or leave out many other, equally deserving cases. We therefore recommend in our submission of 12 August increasing the DHP pot by£20m in 2013/14 and 2014/15. This approach would enable local authorities to make decisions at a local level about which cases should be prioritised for financial help to meet any shortfall caused by this measure.”
“- For those providers questioned there appears to be a shortage of both 1 bed homes and much larger 4+ homes. - The majority of providers allocate homes to underoccupying households to a certain extent. It is more common in smaller 2 bed homes than bigger homes. - Most authorities allocate to underoccupiers most commonly for disabled needs and due to lack of suitable stock.”
“DHPs provide a targeted means of mitigating the impact of this measure from a limited funding pot. It is also in line with a localised approach which will allow local authorities to take into account the circumstances of individual households.”
“18. Although the discretionary nature of DHPs can run the risk of uncertainty for individuals, it does have a number of advantages: • It would enable LAs to provide additional help to claimants based upon a local-level decision about need. • It would deliver mitigation in a targeted way that ensures limited funds are not wasted on cases where the shortfall can be met by the individual... • We will also allocate this money to local authorities in a way that broadly reflects need in relation to the impact of this measure.”
“9. Due [sic] to [the decision in Burnip/Gorry] those whose children are said to be unable to share a bedroom because of severe disabilities will be able to claim [HB] for an extra room from the date of the judgment,15 May 2012 . However it will remain for local authorities to assess the individual circumstances of the claimant and their family and decide whether their disabilities are genuinely such that it is inappropriate for the children to be expected to share a room. This will involve considering not only the nature and severity of the disability but also the nature and frequency of care required during the night, and the extent and regularity of the disturbance to the sleep of the child who would normally be required to share the bedroom. This will come down to a matter of judgment on the facts.”
“54. There are many reasons, as well as those mentioned in paragraph 52, why it may not be appropriate for someone with a disability to either move house or make up any shortfall in rent themselves. A good example of this may be an individual or family who rely heavily on a local support network. In circumstances such as these it may be appropriate to use the DHP fund to make up the shortfall in their rent.”
“67. For those claimants who cannot cover a reduction in [HB] from their own resources and who have a compelling case for remaining in their current accommodation, there is the DHP fund...”
“1.10 The Government has provided additional funding towards DHPs following the introduction of the benefit cap. This additional funding is intended to support those claimants affected by the benefit cap who, as a result of a number of complex challenges, cannot immediately move into work or more affordable accommodation.”
“2.5 For claimants living in specially adapted accommodation, it will sometimes be more cost-effective for them to remain in their current accommodation rather than moving them into accommodation which needs to be adapted. We therefore recommend that local authorities identify people who fall into this group and invite a claim for DHPs. 2.7 The allocation of the additional funding for disabled people broadly reflects the impact of this measure and the additional funding needed to support this group. However, due to the discretionary nature of the scheme, LAs should not specifically exclude any group affected by the removal of the spare room subsidy or any other welfare reform. It is important that LAs are flexible in their decision making.”
“As noble Lords will remember, the£30 million is divided so that£25 million is to cover people with significant adaptations. We estimate that there are around 35,000 claimants, particularly wheelchair users, who have accommodation adapted to their needs... The core question, raised by [Lord McKenzie and Lady Hollis] was whether there is suitable accommodation. I know it is a concern. Clearly, it varies across the country. This is not about making people move into it. Many will prefer to stay. What will happen in practice is that there will be a very varied effect on individuals. One can tier up the problems and end up with someone in a very difficult position. We had some examples today. This is exactly where we would expect the DHP to come into effect. A lot of people will decide that they will have enough money or that they will be able to take in a lodger or take extra work. Those are the kind of decisions that we expect to happen in the marketplace. There will, of course, be a residue of bigger problems.”
“We looked at whether we could simply exclude any house that had had any adaptation done to it. It quickly became apparent that there is a spectrum of adaptations... Trying to define in legislation that this or that type of adaptation was or was not exempt was very complex. Rather than have a blanket exemption for a ramp or a stair rail, we have allocated money to local authorities [sc. the£30m DHP], which broadly matches what we think would be the cost of protecting people in the circumstances that the hon. Gentleman had described...”
“[O]ne of the attractions of Article 14 is that its relatively non-technical drafting avoids some of the legalism that has affected domestic discrimination law. This was recognised by Baroness Hale in AL (Serbia) v Secretary of State for the Home Department[2008] 1 WLR 1434 , at paragraphs 20-25, where she particularly identified the less complicated approach to comparators in Convention law.”
“A difference of treatment is, however, 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 Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.”
“23. This instantly makes the article 14 right different from our domestic anti-discrimination laws. These focus on less favourable treatment rather than a difference in treatment. They also draw a distinction between direct and indirect discrimination. Direct discrimination, for example treating a woman less favourably than a man, or a black person less favourably than a white, cannot be justified. This means that a great deal of attention has to be paid to whether or not the woman and the man, real or hypothetical, with whom she wishes to compare herself are in truly comparable situations. The law requires that their circumstances be the same or not materially different from one another. 24. It will be noted, however, that the classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator. They ask whether ‘differences in otherwise similar situations justify a different treatment’. Lord Nicholls put it this way in R (Carson) v Secretary of State for Work and Pensions[2006] 1 AC 173 , at para 3: ‘... the essential, question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to that question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.’” ‘... the essential, question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to that question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.’”
“I can see no warrant for imposing a prior limitation on the Thlimmenos principle. To do so would be to depart from the emphasis in Article 14 cases which, as Baroness Hale demonstrated in AL (Serbia) (at paragraph 25), is ‘to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification’. I would apply the same approach to a Thlimmenos failure to treat differently persons whose situations are significantly different.”
“44. This traditional concept of indirect discrimination is not the same concept as treating different cases differently. In the latter, the core of the applicant’s complaint is not that a rule is imposing a barrier and cannot be justified; rather, the complaint is that even accepting that the rule can be justified in its application to others, it ought not to be applied to the applicant because his or her situation is materially different, and that difference ought to be recognised by the adoption of a different rule, which may take the form of an exemption from the general rule. The complaint is not that the single rule adopted is inappropriate because discriminatory and unjustified; it is that the circumstances require that there should be more than one rule. 45. However, as with the concept of treating like cases alike, the concept of treating different cases differently may also be the subject of a form of indirect discrimination claim. It may be argued that a rule applied equally in fact fails to have regard to a characteristic related to status, and that persons with that particular characteristic should be subject to a special rule to counter the disadvantage which that characteristic creates. The test for determining whether the applicant is adversely affected by the rule because of some such characteristic is the same as in traditional indirect discrimination claims. Thlimmenos itself is such a case... 46. The traditional concept of indirect discrimination is related to the concept that different cases should be treated differently to this extent: in both the applicant is saying that he or she is adversely affected by a rule which is framed to apply equally but which in fact fails to have regard to a material feature of his or her situation. In the case of traditional indirect discrimination, however, the complaint is that the alleged discriminator could be expected to adopt a different rule which does not have that effect and that it is unreasonable for him not to do so. By contrast, in the case where it is alleged that different cases should be treated differently, it is accepted that the rule itself may serve a legitimate function and be capable of justification in most circumstances but it is contended that a different rule should be adopted for the claimant and those in a similar situation, specifically ameliorating the effect resulting from their special features or characteristics.”
“Options for broader exemptions for disabled people [sc. than might be made for those in receipt of disability living allowance] were considered but rejected as unacceptable. Providing a blanket exception to disabled people using a broad definition would have been too expensive and would not have targeted help at those who need it most. It would also potentially mean that disabled people with no specific needs received a greater contribution for no reason. Applying a tighter definition would have resulted in an administratively intensive and costly process involving outside agencies as well as local authority staff. This is because of the difficulties in identifying the minority of HB claimants who are unable to share a bedroom due to the nature and extent of their disabilities. The costs of this approach were considered to be disproportionate as we think it unlikely that the vast majority of disabled people do not require a spare bedroom.”
“the difficulties in identifying the minority of HB claimants who are unable to share a bedroom due to the nature and extent of their disabilities”
“[T]rying to define ‘significantly adapted accommodation’ for exemption purposes would not be workable... It would either be too broad brush or leave out many other, equally deserving cases...”
“[T]he classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator. They ask whether ‘differences in otherwise similar situations justify a different treatment’.”
“There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.”
“It is, of course, now well settled that the best guide as to whether the courts should deal with the issue is whether it lies within the field of social or economic policy on the one hand or of the constitutional responsibility which resides especially with them on the other: see, for example, R (Pro Life Alliance) v British Broadcasting Corporation[2003] UKHL 23 ;[2004] 1 AC 185 , para 136, per Lord Walker of Gestingthorpe. The fact that the issue is a political issue too adds weight to the argument that, because it lies in the area of social policy, it is best left to the judgment of the legislature. But the reason why I differ from the Court of Appeal’s approach is that it lies in the latter area as well. Cases about discrimination in an area of social policy, which is what this case is, will always be appropriate for judicial scrutiny. The constitutional responsibility in this area of our law resides with the courts. The more contentious the issue is, the greater the risk is that some people will be discriminated against in ways that engage their Convention rights. It is for the courts to see that this does not happen. It is with them that the ultimate safeguard against discrimination rests.”
“The£3.77m provided by the Government is not adequate to meet the shortfall caused by the social sector size criteria, a total of£11.5m .”
“Whilst the increase in DHP funding will be helpful in managing the impact of the social sector size criteria, the funding will not compensate for the total loss of housing benefit income to claimants in Birmingham.”
“The allocation of the additional funding for disabled people broadly reflects the impact of this measure and the additional funding needed to support this group. However, due to the discretionary nature of the scheme, LAs should not specifically exclude any group affected by the removal of the spare room subsidy or any other welfare reform. It is important that LAs are flexible in their decision making.”
“In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.”
“89. It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Employment v Tameside Metropolitan Borough Council[1977] AC 1044 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para 85): ‘... the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons’ disabilities in the context of the particular function under consideration.’ 90. I respectfully agree. But none of this is necessary if the public body properly considers that it can exercise its duty with the material it has.”
“it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.”
“118. The government considered this category of disabled people carefully prior to making the Regulations. Subsequent discussions between government officials and MENCAP have highlighted that some claimants with mental health issues who are under-occupying their home may find it difficult to consider moving from a property that they have occupied for some time because of the support group that has been formed around them. In addition this group are less likely to be able to find work, increase hours of work or take in a lodger.”
“119. It is important not to view HB in respect of this category in a vacuum. People who have mental health needs, including those with complex learning disabilities, will receive a multi-disciplinary assessment of their health and social care needs. This will usually involve the input of one or more health professionals and a social worker, depending on the needs of the individual and their family carers. 120. [Local authorities] have additional responsibilities for people with mental health issues...”
“If the correct legal analysis of the meaning of Article 14 discrimination in the circumstances of these appeals had been elusive or uncertain (and I have held that it is not), I would have resorted to the CRPD and it would have resolved the uncertainty in favour of the appellants.”
“(a) the difficulties facing disabled people in living independently, receiving the support and care that they require, and maintaining family life; (b) recognising that the impact on disabled people for these purposes was not limited to those with physical disabilities but also included those with mental health issues or learning disabilities; (c) the importance of the needs of disabled people for particular accommodation including with rooms which are not permitted by the regulation, and the disadvantages experienced by them if they are in accommodation which is too small or unsuitable; (d) the circumstances in which children or their families might need rooms not permitted by the regulation, the needs of the children arising from those circumstances, and the disadvantages experienced by them if they are in accommodation which is too small or unsuitable; (e) the ability of disabled people, and of children and their families, to cope with the effects of the regulation, including difficulties they may face in taking compensatory steps (e.g. working, taking in a lodger, moving, requesting DHPs); mitigation of any disadvantages identified; (f) whether and to what extent the above are outweighed by the objectives of the Defendant in making the regulation.”