Communicated on 12 January 2018
FIRST SECTION
Applications nos. 32949/17 and 34614/17
J.D. against the United Kingdom
and A. against the United Kingdom
lodged on 27 April 2017 and 5 May 2017 respectively
STATEMENT OF FACTS
The applicant in the first case, J.D., is a British national, who was born in 1963 and lives in Birmingham. She is represented before the Court by Ms K. Ashton, a lawyer practising in Coventry.
The applicant in the second case, A., is a British national. She is represented before the Court by Ms R. Carrier of Hopkin Murray Beskine, a law firm based in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The background facts
(a.) The First applicant, J.D.
The applicant J.D. has lived with her adult, disabled daughter in a 3 bedroom property in the social rented sector since 1993. Her daughter has a type of brain damage associated with oxygen deprivation, severe physical and learning disabilities, is a permanent wheelchair user and is registered blind. J.D. cares for her daughter full time and their house was specifically designed to accommodate their needs including wide doors, an internal lift, a gradual slope at the front and rear to allow wheelchair access, ceiling hoists in the bathroom and bedroom, an accessible bathroom and a changing bed.
In 2012 the Government introduced the Housing Benefit (Amendment) Regulations 2012 (see Relevant domestic law, below). As a result the applicant’s housing benefit was reduced by 14%, because the applicant is considered to have one more bedroom than that to which she is entitled (as the house has 3 bedrooms for 2 people). Because of the reduction, the applicant’s housing benefit no longer meets the cost of her rent.
The applicant has applied for Discretionary Housing Payments to meet the difference, which have been awarded on a temporary basis.
(b.) The Second applicant, A.
The applicant A. lives in a 3 bedroom house in the social rented sector with her son. She has lived there for more than 25 years. It appears that she was allocated a 3 bedroom house because of the shortage of 2 bedroom houses.
In the past the applicant had a brief relationship with a man known as X who is considered extremely dangerous and has previously served a lengthy prison sentence for attempted murder. After his release from prison in 2002 X came to A.’s home and violently attacked and raped her. Her son was conceived as a result of the rape. In 2012 X contacted A. again and she was referred by the police to the “Sanctuary Scheme”. The scheme aims to protect those at risk from the most severe forms of domestic violence. As provided by the rules of her placement in the scheme, the applicant’s home was adapted to include the modification of the attic to render it a “panic room” where A. and her son can retreat in the event of an attempted attack by X.
The applicant receives housing benefit to rent the home. Following the change in legislation in 2012, the applicant’s housing benefit was reduced by 14%, because the applicant is considered to have one more bedroom than that to which she is entitled (as the house has 3 bedrooms for 2 people). Because of the reduction, the applicant’s housing benefit no longer meets the cost of her rent. The applicant has applied for Discretionary Housing Payments to meet the difference, which have been awarded on a temporary basis.
2. The Domestic proceedings
(a.) The First applicant
On 1 March 2013 the First applicant brought proceedings for judicial review. The Divisional Court gave its judgment on 30 July 2013. It considered that the relevant Regulations did discriminate against those who had a need to occupy accommodation with a greater number of bedrooms than they were entitled to because of their own disability or that of a family or household member. However, they considered that there was no “precise class of persons” who could be identified as affected by the measure, by reason of their disability. Moreover, such discrimination would only breach Article 14 taken together with Article 8 and/or Article 1 of Protocol No. 1 of the Convention, if it were “manifestly without reasonable foundation”, and that test was not satisfied in the case.
The applicant appealed to the Court of Appeal, which gave its judgment on 21 February 2014. The Court of Appeal held that the Regulations did discriminate against disabled people who had a need for additional accommodation as compared with comparable non-disabled people who do not have such a need. However, that discrimination was justified for three reasons. First, because the applicant did not form a very limited class, and to include an imprecise class to whom the Regulations would not apply would introduce more complexity into the assessment and be administratively intensive and costly. Second, discretionary payments were suitable to deal with disability-related needs as they can be imposed for shorter periods and demanded more rigorous financial discipline from local authorities. Third, the Secretary of State was entitled to take the view that there were certain groups of persons whose needs for assistance with payment of their rent are better dealt with by discretionary payments rather than housing benefits.
The applicant appealed to the Supreme Court. The proceedings were joined with that of the Second applicant and a number of other claimants (see below).
(b.) The Second applicant
The Second applicant brought a claim for judicial review on the basis of gender discrimination on 24 May 2014; the High Court gave judgment on 29 January 2015. It concluded that the Regulations were prima facie discriminatory on grounds of gender but that the discrimination was justified.
The applicant appealed to the Court of Appeal who concluded on 27 January 2016 that the discrimination against the Second applicant was not justified, and was unlawful. The Court of Appeal commented:
“A. and those in a similar position to A., who have suffered from serious violence, require the kind of protection offered by the Sanctuary Schemes in order to mitigate the serious effects of such violence and the continued threats of such violence. It cannot seriously be disputed that A. and those in a similar position, who are within the Sanctuary Schemes and in need of an adapted "safe" room, are few in number and capable of easy recognition. There would be little prospect of abuse by including them within the defined categories in Regulation B13 and little need for monitoring. Moreover, with careful drafting, Regulation B13 could be amended to identify them as a discernible and certain class.”
It then went on to compare the case of A. to previously decided domestic cases, asking whether the admitted discrimination against A. was “manifestly without reasonable foundation”. Considering itself bound to do so by domestic case law, it concluded 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 Discretionary Housing Payments, even though that would have been a more flexible approach. That was because domestic case law had found that where the admitted discrimination affected an imprecise class of disabled persons (who might have a wide variety of needs unrelated to additional bedrooms) it was not practicable to specify that class of persons as an exception under the Regulation. However, A. was a member of a precise class of persons. Therefore, the discrimination could not be justified.
The Government appealed that decision and the Second applicant’s case was joined with that of the First applicant and a number of others to be heard together, before the Supreme Court.
(c.) The proceedings before the Supreme Court
The Supreme Court gave its judgment on 9 November 2016. Both the applicants’ claims were dismissed. Lord Toulson gave the lead judgment, Lady Hale and Lord Carnwath dissented in the case concerning the Second Applicant.
Lord Toulson first addressed the question of whether the lower courts had applied the right test in asking whether the discriminatory treatment complained of was “manifestly without reasonable foundation”. Where the applicants had argued that in cases such as theirs involving disability or gender discrimination, weighty reasons for justification were required. He confirmed that the lower courts were correct to apply the test of “manifestly without reasonable foundation”. He clarified that:
“32. The fundamental reason for applying the manifestly without reasonable foundation test in cases about inequality in welfare systems was given by the Grand Chamber [of the European Court of Human Rights] in Stec (para 52.). Choices about welfare systems involve policy decisions on economic and social matters which are pre-eminently matters for national authorities.”
He then went on to consider whether the domestic courts had misapplied that test. He found that they had not. He said:
“41. ...There was certainly a reasonable foundation for the Secretary of State’s decision not to create a blanket exception for anyone suffering from a disability within the meaning of the Equality Act (which covers anyone who has a physical or mental impairment that has a more than minimal long term effect on the ability to do normal daily activities) and to regard a DHP scheme as more appropriate than an exhaustive set of bright line rules to cover every contingency.
42. However, that is not the end of the matter, for there are some people who suffer from disabilities such that they have a transparent medical need for an additional bedroom...”
He then went on to examine the situation of other claimants in the proceedings in light of the distinction he had identified. In examining the case of the First Applicant, he concluded:
“53. JD lives with [her] adult daughter, AD, who is severely disabled, in a specially constructed three-bedroom property. They have no objective need for that number of bedrooms. Because the property has been specially designed to meet [ADs] complex needs, there may be strong reasons for JD to receive state benefits to cover the full rent, but again it is not unreasonable for that to be considered under the DHP scheme.”
In respect of the Second Applicant, he considered that whilst A. had a strong case for staying where she needed to be, she had no need for a three‑bedroom property:
“59. Notwithstanding my considerable sympathy for A and other women in her predicament, I would allow the Secretary of State’s appeal in A’s case. I add that for as long as A. and others in a similar situation are in need of the protection of sanctuary scheme housing, they must of course receive it; but that does not require the court to hold that A has a valid claim against the Secretary of State for unlawful sex discrimination.”
He commented:
“... It was recognised from the time that [the Regulation (Reg B13)] was mooted that there will be some people who have a very powerful case for remaining where they are, on grounds of need unrelated to the size of the property. For reasons explained in the evidence (to which I have referred in para 40), it was decided not to try to deal with cases of personal need unrelated to the size of the property by general exemptions for particular categories but to take account of them through DHPs.”
He considered whether the state has a positive duty to provide effective protection to victims of gender-based violence but decided not to examine the question of whether there was a duty, because this would not mandate the means by which such protection is provided.
Lady Hale, dissenting in respect of the Second Applicant’s case considered unfortunate that the cases had been joined underlining that the cases where it is clear that people need an extra room because of their disability, and the case of A. are different:
“72. ...A’s need is not for space but to stay where she is. The effect of the regulation is to deny her the benefit she needs in order to stay in the accommodation she needs. In my view this is unjustified discrimination against her on grounds of her sex. But the reasons are quite different from the reasons in the disability cases.
...
76. The state has provided Ms A with such a safe haven. It allocated her a three‑bedroom house when she did not need one. That was not her choice. It later fortified that house and put in place a detailed plan to keep her and her son safe. Reducing her housing benefit by reference to the number of bedrooms puts at risk her ability to stay there. Because of its special character, it will be difficult if not impossible for her to move elsewhere and that would certainly put the State to yet further expense. Given these very special circumstances, I am tempted to regard this as an interference with her and her son’s right to respect for their home. But in any event, denying her the benefit she needs in order to be able to stay there is discrimination in the sense described in Thlimmenos v Greece 31 EHRR 15: treating her like any other single parent with one child when in fact she ought to be treated differently.
77. Indeed, the appellant does not seriously dispute that Ms A needs to stay where she is. The Secretary of State accepts that she needs to stay in a sanctuary scheme and probably in this very house. The justification suggested for the interference, or the discrimination, is the availability of discretionary housing payments to make up the shortfall in her rent. But if the discretionary housing payment scheme is not good enough to justify the discrimination against the Rutherford and Carmichael households, it is not good enough to justify the discrimination against Ms A’s household either. Its deficiencies were acknowledged in the Court of Appeal’s decision in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 117, para 46. They are well-summed up by Mr Drabble QC on behalf of the Rutherford and Carmichael families: it is discretionary, cash-limited and produces less certainty; it has a stricter means test; it offers different and less attractive routes of judicial challenge; it can be onerous to make applications; and it encourages short term, temporary and conditional awards. For a woman in a sanctuary scheme to have to endure all those difficulties and uncertainties on top of the constant fear and anxiety in which she lives cannot be justified. This is not a question of the allocation of scarce public resources: it is rightly acknowledged that public resources will have to meet this need one way or another.”
In relation to the First Applicant’s case she commented:
“78. ...In the second example, the disability is indeed a status for article 14 purposes, and I have found the case of JD and AD an extremely difficult one and have been tempted to dissent in their case too. But the distinction between them and the victims of the sex discrimination entailed in gender-based violence, is that the state has a positive obligation to provide effective protection against gender-based violence and for this small group of victims this is the only way to make that protection effective.”
B. Relevant domestic law and practice
1. The Social Security Contributions and Benefits Act 1992
Housing Benefit is a means tested benefit provided under section 130 of the Social Security Contributions and Benefits Act 1992 and subordinate regulations. Its purpose is to help claimants with their rental costs. There is a prescribed mechanism for determining in each case the appropriate maximum housing benefit (“AMHB”).
Regulation B13 was introduced into the Housing Benefit Regulations 2006 (SI 2006/213) in 2012. The Regulation provides for adjustment of the eligible rent and AMHB in the area of social sector housing. Where the number of bedrooms in a dwelling exceeds that to which a claimant is entitled under the relevant provisions, a deduction is calculated in the claimant’s entitlement to benefits. The deduction is:
14% where the number of bedrooms in the dwelling exceeds by one the number of bedrooms to which the claimant is entitled; and
25% where the number of bedrooms in the dwelling exceeds by two or more the number of bedrooms to which the claimant is entitled.
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:
“(a) a couple (within the meaning of Part 7 of the Act);
(b) a person who is not a child;
(ba) a child who cannot share a bedroom;
(c) two children of the same sex;
(d) two children who are less than ten years old;
(e) a child...
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.
...
(9) 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.”
2. Discretionary Housing Payments
There is also a statutory scheme for enabling Discretionary Housing Payments (“DHPs”) to be made to persons who are entitled to housing benefit and/or some other benefits. According to the Discretionary Financial Assistance Regulations (set out in Statutory Instrument 2001/1167), an payment may be made for such period as the authority considers appropriate in the particular circumstances of the case, and the authority is required to give reasons for its decision.
There is no statutory right of appeal, but such decisions are in principle subject to judicial review. The practice is for the Department of Work and Pensions to make an annual DHP grant to local authorities in respect of their anticipated expenditure.
C. Relevant international law and practice
1. The United Nations Convention on Rights of Persons with Disabilities
The United Kingdom signed the United Nations Convention on the Rights of Persons with Disabilities on 30 March 2007 and ratified it on 8 June 2009. The purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Article 28 of the Convention states:
“1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.”
In its concluding observations on the initial report of the United Kingdom under the Convention of 3 October 2017 (CPRD/C/GBR/CO/1), the Committee on the Rights of Persons with Disabilities raised concerns under Article 28 of the Convention about the impact of austerity measures and anti-poverty initiatives introduced following the financial crisis in 2008/9 which “resulted in severe economic constraints among person with disabilities and their families”.
2. The Council of Europe Convention on preventing and combating violence against women and domestic violence (the “Istanbul Convention”)
The United Kingdom signed the Istanbul Convention on 8 June 2012. It has not ratified the Convention, nor brought it into force. The Convention aims to protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence. It also aims to contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women.
Article 18 of Chapter IV “Protection and support”, states that:
“2. Parties shall take the necessary legislative or other measures, in accordance with internal law, to ensure that there are appropriate mechanisms to provide for effective co-operation between all relevant state agencies, including the judiciary, public prosecutors, law enforcement agencies, local and regional authorities as well as non‑governmental organisations and other relevant organisations and entities, in protecting and supporting victims and witnesses of all forms of violence covered by the scope of this Convention, including by referring to general and specialist support services ....
3. Parties shall ensure that measures taken pursuant to this chapter shall:
– be based on a gendered understanding of violence against women and domestic violence and shall focus on the human rights and safety of the victim;
– be based on an integrated approach which takes into account the relationship between victims, perpetrators, children and their wider social environment;
– aim at avoiding secondary victimisation;
– aim at the empowerment and economic independence of women victims of violence ...”
COMPLAINTS
The applicants complain under Articles 8, 14 and Article 1 of Protocol No. 1 of the Convention that the scheme introduced in 2012 in Regulation B13 to the Housing Benefit Regulations interferes with their right to respect for private and family life and to the peaceful enjoyment of their possessions in a discriminatory manner, without justification. That is because for the First applicant, the scheme treats her less favourably than others entitled to similar benefits, who receive those benefits based on their objective accommodation needs. The Second applicant argues that the scheme is discriminatory on grounds of gender due to its impact upon victims of domestic violence, who are overwhelmingly women.
QUESTIONS TO THE PARTIES
1. Have the applicants suffered discrimination in the enjoyment of their Convention rights, contrary to Article 14 of the Convention read in conjunction with Articles 8 and Article 1 of Protocol No. 1 of the Convention?
If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?
2. Do the applicants belong to a particularly vulnerable group in society, whose members have suffered considerable discrimination in the past? If so, what were the “very weighty reasons” for the difference in treatment (see, mutatis mutandis, Horváth and Kiss v. Hungary, no. 11146/11, § 128, 29 January 2013)?
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