J.D. and A v. the United Kingdom (European Court of Human Rights)

Information Note on the Court’s case-law 233
October 2019

J.D. and A v. the United Kingdom32949/17 and 34614/17

Judgment 24.10.2019 [Section I]

Article 14
Discrimination

No distinction made in favour of certain categories of vulnerable social housing tenants in the application of amended housing benefit scheme: no violation ; violation

Facts – The two applicants were tenants of social housing. Following a change to a statutory scheme, payments of housing benefit – to which the two applicants had previously been entitled in order to subsidise their rental costs – were reduced, as the amended scheme categorised them both as having an extra bedroom. Most of the shortfall between their rent and the reduced rate of housing benefit was replaced by payments under a discretionary housing benefit scheme, for which they had to apply.

They argued that these changes put them in a more precarious position than others affected by the reduction because of their personal circumstances – the first applicant cared for her disabled child full time and the second had been included in a “sanctuary scheme” designed to protect those who had experienced and remained at risk of serious domestic violence.

Law – Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1

(a)  General principles – In the context of Article 1 of Protocol No. 1 alone, in matters concerning general measures of economic or social strategy, States usually enjoyed a wide margin of appreciation under the Convention and the Court would generally respect the legislature’s policy choice unless it had been “manifestly without reasonable foundation”.

In the context of Article 14 in conjunction with Article 1 of Protocol No. 1, however, although the margin of appreciation in the context of general measures of economic or social policy was, in principle, wide, such measures had nevertheless to be implemented in a manner that did not violate the prohibition of discrimination as set out in the Convention and that complied with the requirement of proportionality. Thus, even a wide margin in the sphere of economic or social policy did not justify the adoption of laws or practices that would violate the prohibition of discrimination. Hence, in that context the Court had limited its acceptance to respect the legislature’s policy choice as not “manifestly without reasonable foundation” to circumstances where an alleged difference in treatment had resulted from a transitional measure forming part of a scheme carried out in order to correct a historic inequality. Outside of that context, given the need, for example, to prevent discrimination against people with disabilities or to advance gender equality, “very weighty reasons” would have to be put forward before such a difference in treatment could be regarded as compatible with the Convention.

(b)  Application – The changes made had applied to all beneficiaries under the scheme without any distinction by reference to their characteristics such as disability or gender. The applicants had been treated in the same way as other recipients of housing benefit in that their entitlements had been reduced on the same grounds and according to the same criteria as those of other recipients. Thus, the issue arising was one of alleged indirect discrimination. The question to be examined was whether there had been a discriminatory failure by the authorities to make a distinction in the applicants’ favour on the basis that their relevant circumstances were significantly different from those of other recipients of housing benefit who had been adversely affected by the contested policy.

It had been an anticipated consequence of the reduction of housing benefit that all benefit recipients who had experienced such a reduction could be at risk of losing their homes. Indeed, the Government had argued that that precarity had been the intention of the scheme: to incentivise families to move. The applicants were in a significantly different situation and had been particularly prejudiced by the policy because they had a particular need to be able to remain in their specifically adapted homes for reasons directly related to their status.

Having established that the applicants – who had been treated in the same way as other recipients of the housing benefit even though their circumstances were significantly different – were particularly prejudiced by the impugned measure, the Court had to ask whether the failure to take account of that difference was discriminatory. In the circumstances of the applicants’ cases – where the alleged discrimination was on the basis of disability and gender, and had not resulted from a transitional measure carried out in good faith in order to correct an inequality – very weighty reasons would be required to justify the impugned measure in respect of the applicants.

(i)  The first applicant – Whilst it had been acknowledged that any move would be extremely disruptive and highly undesirable for the first applicant, it would not be in fundamental opposition to the recognised needs of disabled persons in specially adapted accommodation, but without a medical need for an “extra” bedroom, to move into smaller, appropriately adapted accommodation.

The discretionary housing payments scheme had a number of significant disadvantages including, inter alia, that the awards of those payments were purely discretionary in nature and their duration uncertain. The first applicant had in fact been awarded the payment for several years following the changes to the housing benefit legislation. Whilst the discretionary housing payments scheme could not be characterised as ensuring the same level of certainty and stability as the previous, unreduced housing benefit, its provision with attendant safeguards had amounted to a sufficiently weighty reason to satisfy the Court that the means employed to implement the measure had a reasonable relationship of proportionality to its legitimate aim. Accordingly, the difference in treatment identified in the case of the first applicant had been justified.

Conclusion: no violation in respect of the first applicant (unanimously).

(ii)  The second applicant – In the case of the second applicant, the legitimate aim of the scheme – to incentivise those with “extra” bedrooms to leave their homes for smaller ones – was in conflict with the aim of sanctuary schemes, which was to enable those at serious risk of domestic violence to remain in their own homes safely, should they wish to do so.

Given those two legitimate but conflicting aims, the Court considered that the impact of treating the second applicant – or others housed in sanctuary schemes – in the same way as any other housing benefit recipient affected by the impugned measure was disproportionate in the sense of not corresponding to the legitimate aim of the measure. The Government had not provided any weighty reasons to justify the prioritisation of the aim of the scheme over that of enabling victims of domestic violence who had benefited from protection in sanctuary schemes to remain in their own homes safely. In that context, the provision of discretionary housing payments could not render proportionate the relationship between the means employed and the aim sought to be realised where it formed part of the scheme aimed at incentivising residents to leave their homes, as demonstrated by its identified disadvantages.

Accordingly, the imposition of the statutory change on that small and easily identifiable group had not been justified and was discriminatory.

Conclusion: violation in respect of the second applicant (five votes to two).

Article 41: EUR 10,000 to the second applicant in respect of non-pecuniary damage.

(See also Thlimmenos v. Greece [GC], 34369/97, 6 April 2000, Information Note 17; D.H. and Others v. the Czech Republic [GC], 57325/00, 13 November 2007, Information Note 102; British Gurkha Welfare Society and Others v. the United Kingdom, 44818/11, 15 September 2016, Information Note 199; Konstantin Markin v. Russia [GC], 30078/06, 22 March 2012, Information Note 150; and Guberina v. Croatia, 23682/13, 22 March 2016, Information Note 194)

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