FIRST SECTION
\nCASE OF J.D. AND A v. THE UNITED KINGDOM
\n(Applications nos. 32949\/17 and 34614\/17)<\/p>\n
JUDGMENT
\nArts 14 and 1 P 1 \u2022 Discrimination \u2022 Possessions \u2022 Reduction of benefit in order to incentivise social housing tenants to move into smaller accommodation \u2022 No distinction made in favour of certain categories of vulnerable tenants \u2022 Disability \u2022 Gender \u2022 Margin of appreciation \u2022 Proportionality \u2022 Test to be applied as regards the justification for a measure of social and economic policy
\nSTRASBOURG
\n24 October 2019<\/p>\n
This judgment will become final in the circumstances set out in Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of J.D. and A v. the United Kingdom,<\/p>\n
The European Court of Human Rights (First Section), sitting as a Chamber composed of:<\/p>\n
Ksenija Turkovi\u0107, President,
\nKrzysztof Wojtyczek,
\nAle\u0161 Pejchal,
\nPauliine Koskelo,
\nJovan Ilievski,
\nRaffaele Sabato, judges,
\nLeeona June Dorrian,ad hoc judge,
\nand Abel Campos, Section Registrar,<\/p>\n
Having deliberated in private on 17\u00a0September 2019,<\/p>\n
Delivers the following judgment, which was adopted on that date:<\/p>\n
PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in two applications (nos.\u00a032949\/17 and 34614\/17 against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by two British nationals, J.D. and A (\u201cthe applicants\u201d), on 27 April 2017 and 5\u00a0May 2017 respectively. The President of the Section acceded to the applicants\u2019 request not to have their names disclosed (Rule\u00a047 \u00a7 4 of the Rules of Court).<\/p>\n 2.\u00a0\u00a0The first applicant, who had been granted legal aid, was represented by Ms K. Ashton, a lawyer practising at Coventry Law Centre. The second applicant was represented by Ms Rebekah Carrier of Hopkin Murray Beskine Solicitors in London. The United Kingdom Government (\u201cthe Government\u201d) were represented by their Agent, Mr James Gaughan of the Foreign and Commonwealth Office.<\/p>\n 3.\u00a0\u00a0The applicants complained that a reduction in their benefit payments discriminated against them on the basis of their disability and gender.<\/p>\n 4.\u00a0\u00a0On 12 January 2018 notice of the applications were given to the Government.<\/p>\n 5.\u00a0\u00a0In addition, third-party submissions were received from Ms\u00a0Rosemary Lloyd on behalf of the Equality and Human Rights Commission and Ms\u00a0SaadiaChaudary on behalf of the AIRE Centre, who had been granted leave by the President to intervene in the written procedure (Article 36 \u00a7\u00a02 of the Convention and Rule 44 \u00a7 2).<\/p>\n 6.\u00a0\u00a0Mr Tim Eicke, the judge elected in respect of the United Kingdom, was unable to sit (Rule 28). Accordingly, the President decided to appoint Lady\u00a0LeeonaDorrian to sitas judge ad hoc (Rule 29 \u00a7 1 (a)).<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 7.\u00a0\u00a0The facts of the case, as submitted by the applicants, may be summarised as follows.<\/p>\n A.\u00a0\u00a0The background facts<\/strong><\/p>\n 1.\u00a0\u00a0The first applicant, J.D.<\/em><\/p>\n 8.\u00a0\u00a0The applicant J.D. has lived with her adult, disabled daughter in a 3\u00a0bedroom 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.<\/p>\n 9.\u00a0\u00a0In 2012 the Government introduced the Housing Benefit (Amendment) Regulations 2012 (see Relevant domestic law, below). As a result the applicant\u2019s Housing Benefit was reduced by 14%, because sheis 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\u2019s Housing Benefit no longer meets the cost of her rent.<\/p>\n 10.\u00a0\u00a0The applicant applied for Discretionary Housing Payments (\u201cDHP\u201d) to meet the difference, which were awarded on a temporary basis. Her last award expired on 31 March 2017 and at the time of making her application she was awaiting a response to her most recent claim and had not been offered smaller accommodation which would meet her daughter\u2019s needs.<\/p>\n 2.\u00a0\u00a0The second applicant, A<\/em><\/p>\n 11.\u00a0\u00a0The 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\u00a0bedroom houses.<\/p>\n 12.\u00a0\u00a0In 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\u2019s 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 \u201cSanctuary Scheme\u201d. 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\u2019s home was adapted to include the modification of the attic to render it a \u201cpanic room\u201d where A and her son can retreat in the event of an attempted attack by X.<\/p>\n 13.\u00a0\u00a0The applicant receives Housing Benefit to rent her home. Following the change in legislation in 2012, the applicant\u2019s 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\u00a0people). Because of the reduction, the applicant\u2019s Housing Benefit no longer meets the cost of her rent. The applicant has applied for DHPs to meet the difference, which have been awarded on a temporary basis.<\/p>\n 14.\u00a0\u00a0In early 2015, her application for DHP was refused by the local authority and she received a letter threatening her with eviction. The situation was brought to the attention of the Secretary of State who intervened on A\u2019s behalf with the local authority, which reversed its decision to refuse her application for DHP. The Secretary of State informed the applicant that the refusal was the result of an \u2018error in processing\u2019 by the local authority where the fact that the applicant\u2019s home had been specially adapted was not taken into account when the decision to refuse DHP was made.<\/p>\n B.\u00a0\u00a0The Domestic proceedings<\/strong><\/p>\n 1.\u00a0\u00a0The first applicant<\/em><\/p>\n 15.\u00a0\u00a0On 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 \u201cprecise class of persons\u201d who could be identified as affected by the measure, by reason of their disability. Moreover, such discrimination would only breach Article\u00a014 taken together with Article 8 and\/or Article1 of Protocol No. 1 of the Convention, if it were \u201cmanifestly without reasonable foundation\u201d, and that test was not satisfied in the case.<\/p>\n 16.\u00a0\u00a0The applicant together with four other claimants, appealed to the Court of Appeal, which gave its judgment on 21 February 2014. The Court of Appeal held that the Regulations discriminated against disabled people who had a need for additional accommodation as compared with comparable non-disabled people who do not have such a need. The Court of Appeal considered whether it should be classified as direct or indirect discrimination although in its view the type of discrimination was not material in light of the Strasbourg case-law. The Master of the Rolls (Lord\u00a0Neuberger) giving the lead opinion concluded on this point:<\/p>\n \u201c47.\u00a0\u00a0In case the classification question is material, I shall content myself with saying that … the discrimination in this case is one of indirect or Thlimennos discrimination. It is not necessary to distinguish between these two. As a matter of substance, Regulation B13 discriminates against disabled persons on the ground of disability …\u201d<\/p>\n 17.\u00a0\u00a0However, applying the test of \u201cmanifestly without reasonable foundation\u201d the Court of Appeal found that the 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.<\/p>\n 18.\u00a0\u00a0The applicant appealed to the Supreme Court. The proceedings were joined with that of the second applicant and a number of other claimants (see paragraphs 22-30 below).<\/p>\n 2.\u00a0\u00a0The second applicant<\/em><\/p>\n 19.\u00a0\u00a0The 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\u00a0January 2015. It concluded that the Regulations were prima facie discriminatory on grounds of gender but that the discrimination was justified. In its judgment, the High Court examined the system of Sanctuary Schemes, summarised as follows:<\/p>\n \u201c9.\u00a0\u00a0Sanctuary Schemes<\/p>\n A Sanctuary Scheme provides for the adaption of a property to make it secure. In particular there may be a secured room or space. The safe room provides a place to which the person can retreat if violence occurs or they are in fear of attack whilst they call the police and wait for assistance. The address is \u2018tagged\u2019 on police computer systems to ensure a quick response to a 999 call or the activation of a panic button. Specialist, tailored support is also provided, and A has (what is termed) a “complex package of multi-agency support”.<\/p>\n 10.\u00a0\u00a0These Schemes have been successfully established across the country since 2006. Even a brief explanation of their aims and scope are sufficient to demonstrate what a good idea they are. One of the obvious benefits is that victims of domestic violence and the like can remain in their own homes (if they want to) rather than being forced out by the fear of violence. Leaving their home as a result of domestic violence can have serious consequences for the stability of their lives. Government statutory homelessness statistics show that domestic violence is consistently reported as the main reason for the loss of a last settled home for 12-13% of homelessness acceptances in England; see the witness statement of [ P.N.] of Women\u2019s Aid at [C4]. [the applicant\u2019s representative] submitted that Sanctuary Schemes are a means of homelessness prevention. Whilst the work costs money, it avoids the expense and upheaval of re-housing and (as A\u2019s case well illustrates) of losing the support network of friends and neighbours that takes years to build up and which is so important for the continued safety and general wellbeing of people in A\u2019s position. It is these people who help provide her with the day to day friendship and sense of community that she needs.<\/p>\n …<\/p>\n 16.\u00a0\u00a0None of that is particularly controversial. However, there is one further piece of evidence provided by the replies to these requests which was the subject of some argument. Local authorities were asked for the number of households in Sanctuary Schemes affected by the under-occupancy provisions. The answer was 120. The average gap in funding was \u00a316.70 per week (above the average figure). Of that group of 120, the number receiving DHPs was 24 (or 20%). The Claimant relies upon that statistic to show that DHPs are not being provided to 80% of households in Sanctuary Schemes which are affected by these regulations and who should be receiving DHPs. The Defendant says that it proves nothing of the sort. […] I observed during the course of argument that I would need to know more about the 80% before I could draw any conclusions from these figures. That remains my view. The statistic shows that DHPs are being paid to people in Sanctuary Schemes. Indeed that is A\u2019s experience. What we do not know is why they are not being paid. It may be that it is because applications are being refused. Or it may be because claimants are bridging the gap in other ways.\u201d<\/p>\n 20.\u00a0\u00a0The applicant appealed to the Court of Appeal who concluded on 27\u00a0January 2016 that the discrimination against the second applicant was not justified, and was unlawful. The case proceeded on the basis that Regulation B13 constituted \u201cprima facie discrimination on grounds of sex and disability\u201d (see \u00a7 5). The primary question before the court was therefore whether that discrimination had been justified. The court set out the situation of the second applicant:<\/p>\n \u201c10.\u00a0\u00a0A has lived in a three bedroom house rented from the local council since 1989. In 1993-4 she had a brief, casual relationship with a man, X, who was subsequently convicted of attempted murder; he has been exceptionally violent to her. Whilst in prison he started to harass her and in 2002 he sought her out. A child was conceived as a result of his rape of her and was born in 2003. The child lives with her. The courts have refused contact between the son and X.<\/p>\n 11.\u00a0\u00a0In 2012, X contacted A again and made threats of violence to her. The police and other agencies took the threats seriously and under one of the schemes which are known as the “Sanctuary Schemes” her property was adapted. She is protected under that scheme with the support of the police. In consequence of the violence of X and the continued threats from him, she suffers from PTSD and has suicidal ideation.<\/p>\n 12.\u00a0\u00a0Sanctuary Schemes, which have been operating since 2006, provide for the adaptation of a house or flat to make it secure and for on-going security monitoring to enable people who have been subjected to violence, including what is often referred to a “domestic violence”, to remain in their own home. There was powerful evidence before the judge from [P.N.], the Chief Executive of Women\u2019s Aid, about the benefits and importance of Sanctuary Schemes.\u201d<\/p>\n In its conclusions under Article 14, the Court of Appeal commented:<\/p>\n \u201c47.\u00a0\u00a0A 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.<\/p>\n …<\/p>\n 54.\u00a0\u00a0In these circumstances, whilst we saw great force in the Secretary of State\u2019s arguments, which we subjected to serious scrutiny, we feel constrained not to accept them. We acknowledge in particular that DHPs are discretionary, but that that discretion has to be exercised lawfully and in accordance with the guidance issued by the Secretary of State. If they were to be withheld inappropriately, the decision would be subject to review. We acknowledge that the evidence shows that the DHPs would cover the full deficit in Housing Benefit. We acknowledge that, even though the fund for DHPs is capped and may in theory be insufficient, there is no clear evidence that it will be; on the contrary, so far it has been sufficient. Thus, the evidence is that A has received what she would have received had those in her position been brought within a defined class in Regulation B13; she has not been disadvantaged. But that was the position in Burnip, and the same justification was not accepted.<\/p>\n 55.\u00a0\u00a0Burnip obliges us also to decide 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 DHPs, even though that would be a more flexible approach.<\/p>\n 56.\u00a0\u00a0In these circumstances, we have concluded that the appeal in A must be allowed on the ground that the Secretary of State has failed to show that his reasons amount to an objective and reasonable justification for the admitted discrimination in Regulation\u00a0B13.\u201d<\/p>\n 21.\u00a0\u00a0The Government appealed that decision and the second applicant\u2019s case was joined with that of the first applicant and a number of others to be heard together, before the Supreme Court.<\/p>\n 3.\u00a0\u00a0The proceedings before the Supreme Court<\/em><\/p>\n 22.\u00a0\u00a0The Supreme Court gave its judgment on 9 November 2016. Both the applicants\u2019 claims were dismissed. Lord Toulson gave the lead judgment, Lady Hale and Lord Carnwath dissented in the case concerning the second applicant.<\/p>\n 23.\u00a0\u00a0Lord Toulson first addressed the question whether the lower courts had applied the right test in asking whether the discriminatory treatment complained of was \u201cmanifestly without reasonable foundation\u201d. 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 \u201cmanifestly without reasonable foundation\u201d. Lord Toulson clarified that:<\/p>\n \u201c32.\u00a0\u00a0The 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.\u201d<\/p>\n 24.\u00a0\u00a0He then went on to consider whether the domestic courts had misapplied that test. He found that they had not. He said:<\/p>\n \u201c41.\u00a0\u00a0…There was certainly a reasonable foundation for the Secretary of State\u2019s 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.<\/p>\n 42.\u00a0\u00a0However, 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…\u201d<\/p>\n 25.\u00a0\u00a0He 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:<\/p>\n \u201c53.\u00a0\u00a0JD 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.\u201d<\/p>\n 26.\u00a0\u00a0In 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\u2011bedroom property:<\/p>\n \u201c59.\u00a0\u00a0Notwithstanding my considerable sympathy for A and other women in her predicament, I would allow the Secretary of State\u2019s appeal in A\u2019s 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.\u201d<\/p>\n 27.\u00a0\u00a0He commented:<\/p>\n \u201c62… 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.<\/p>\n …<\/p>\n 64.\u00a0\u00a0So while I agree that there would have been no insuperable practical difficulty in drafting an exemption from the size criteria for victims of gender violence who are in a sanctuary scheme and who need for that reason to stay where they are, deciding whether they really needed to stay in that particular property would at least in some cases require some form of evaluation. I leave aside the question debated in the evidence about whether some people in a sanctuary scheme might safely be able to make use of a spare room by taking in someone else such as a family member. Likewise I do not suppose that there would be insuperable practical difficulties in drafting exemptions to meet other categories of people who may justifiably claim to have a need to remain where they are for reasons unconnected with the size of the accommodation, but this would again require an evaluative process.\u201d<\/p>\n 28.\u00a0\u00a0He 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.<\/p>\n 29.\u00a0\u00a0Lady Hale, dissenting in respect of the second applicant\u2019s 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:<\/p>\n \u201c72… A\u2019s 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.<\/p>\n …<\/p>\n 76.\u00a0\u00a0The state has provided Ms A with such a safe haven. It allocated her a three\u2011bedroom 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\u2019s 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 Greece31 EHRR 15: treating her like any other single parent with one child when in fact she ought to be treated differently.<\/p>\n 77.\u00a0\u00a0Indeed, 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 [other] households, it is not good enough to justify the discrimination against Ms\u00a0A\u2019s household either. Its deficiencies were acknowledged in the Court of Appeal\u2019s decision in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR\u00a0117, para 46. They are well-summed up by MrDrabble QC […]: 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.\u201d<\/p>\n 30.\u00a0\u00a0In relation to the first applicant\u2019s case she commented:<\/p>\n \u201c78….In the second example, the disability is indeed a status for article 14 purposes, and I have found the case of JD and [her daughter] 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.\u201d<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n A.\u00a0\u00a0The Social Security Contributions and Benefits Act 1992<\/strong><\/p>\n 31.\u00a0\u00a0Housing Benefit is a means tested benefit provided under section\u00a0130 of the Social Security Contributions and Benefits Act 1992 and subordinate regulations. It is a financial payment available to claimants on low incomes who meet certain eligibility criteria. Its purpose is to help claimants with their rental costs whether they rent private or social housing. There is a prescribed mechanism for determining in each case the appropriate maximum Housing Benefit.<\/p>\n 32.\u00a0\u00a0Regulation B13 was introduced into the Housing Benefit Regulations 2006 (SI 2006\/213) in 2012. The Regulation provides for adjustment of the eligible rent and \u201cAppropriate maximum Housing Benefit\u201d 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\u2019s entitlement to benefits. The deduction is:<\/p>\n 14\u00a0% where the number of bedrooms in the dwelling exceeds by one the number of bedrooms to which the claimant is entitled; and<\/p>\n 25\u00a0% where the number of bedrooms in the dwelling exceeds by two or more the number of bedrooms to which the claimant is entitled.<\/p>\n 33.\u00a0\u00a0The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant\u2019s dwelling as their home:<\/p>\n \u201c(a)\u00a0\u00a0a couple (within the meaning of Part 7 of the Act);<\/p>\n (b)\u00a0\u00a0a person who is not a child;<\/p>\n (ba)\u00a0\u00a0a child who cannot share a bedroom;<\/p>\n (c)\u00a0\u00a0two children of the same sex;<\/p>\n (d)\u00a0\u00a0two children who are less than ten years old;<\/p>\n (e)\u00a0\u00a0a child…<\/p>\n The claimant is entitled to one additional bedroom in any case where –<\/p>\n (a)\u00a0\u00a0a relevant person is a person who requires overnight care; or<\/p>\n (b)\u00a0\u00a0a relevant person is a qualifying parent or carer.<\/p>\n …<\/p>\n (9)\u00a0\u00a0In this regulation \u2018relevant person\u2019 means –<\/p>\n (a)\u00a0\u00a0the claimant;<\/p>\n (b)\u00a0\u00a0the claimant\u2019s partner;<\/p>\n (c)\u00a0\u00a0a person (\u201cP\u201d) other than the claimant or the claimant\u2019s partner who is jointly liable with the claimant or the claimant\u2019s partner (or both) to make payments in respect of the dwelling occupied as the claimant\u2019s home;<\/p>\n (d)\u00a0\u00a0P\u2019s partner.\u201d<\/p>\n B.\u00a0\u00a0Discretionary Housing Payments<\/strong><\/p>\n 34.\u00a0\u00a0There 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), a 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.<\/p>\n 35.\u00a0\u00a0There 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.<\/p>\n 36.\u00a0\u00a0In 2013 the Government issued a DHP guidance manual and good practice guide to local authorities. It was summarised in an Appendix to the Supreme Court judgment in the present cases (see paragraph 22 above) as follows:<\/p>\n \u201c29.\u00a0\u00a0This document of April 2013 (the Discretionary Housing Payments Guidance Manual) (\u201cthe DHP Guidance Manual\u201d) contains very full guidance as to the use of DHPs. It reminds authorities, at para 1.10, that their DHP funds are cash limited. It reviews the whole scheme. It canvasses the possibility of allowing applications in advance from persons affected by the [Housing Benefit], at paras 4.5-6, and making an award not limited in time to a disabled claimant likewise affected, at para\u00a05.3. A \u201cGood Practice Guide\u201d is included in the DHP Guidance Manual. It contains a substantial discussion of the [Housing Benefit]. It states:<\/p>\n \u201c1.10\u00a0\u00a0The 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.\u201d<\/p>\n Specific types of case are then enumerated, at para 1.11, and carefully discussed, and worked examples are given. I should note these passages:<\/p>\n \u201c2.5\u00a0\u00a0For 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.<\/p>\n 2.7\u00a0\u00a0The 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, [Local Authority]\u2019s 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.\u201d<\/p>\n Other types of case discussed include adopters (paras 2.9-11) and foster carers, in particular (para 2.13) carers for two or more unrelated foster children.<\/p>\n 30.\u00a0\u00a0At paras 5.4-5.5 the Good Practice Guide poses a series of practical questions under two heads, \u201cThe household\u2019s medical circumstances, health or support needs\u201d and \u201cOther circumstances\u201d. The bullet points under the latter head (13 in number) demonstrate a series of different cases, none of them necessarily involving disability, in which the claimant may encounter particular difficulty or hardship in seeking alternative accommodation in response to the reduction in his\/her [Housing Benefit] which the local authority may think it right to consider in deciding whether to make an award of DHP. I will just set out the first two instances:<\/p>\n \u201cIs the claimant fleeing domestic violence? This may mean they need safe accommodation on an emergency basis so the concept of having time to shop around for a reasonably priced property is not appropriate.<\/p>\n Does the household have to live in a particular area because the community gives them support or helps them contribute to the district?\u201d<\/p>\n C.\u00a0\u00a0The Human Rights Act 1998 (\u201cHRA\u201d)<\/strong><\/p>\n 37.\u00a0\u00a0Pursuant to section 6 of the HRA, it is unlawful for a public authority to act in a way which is incompatible with a Convention right.<\/p>\n D.\u00a0\u00a0The Equality Act 2010<\/strong><\/p>\n 38.\u00a0\u00a0Section 149 of the Equality Act introduced the Public Sector Equality Duty. It provides that:<\/p>\n \u201c(1)\u00a0\u00a0A public authority must, in the exercise of its functions, have due regard to the need to\u2014<\/p>\n (a)\u00a0\u00a0eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;<\/p>\n (b)\u00a0\u00a0advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;<\/p>\n (c)\u00a0\u00a0foster good relations between persons who share a relevant protected characteristic and persons who do not share it.<\/p>\n …<\/p>\n (3)\u00a0\u00a0Having 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\u00a0–<\/p>\n (a)\u00a0\u00a0remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;<\/p>\n (b)\u00a0\u00a0take 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;<\/p>\n (c)\u00a0\u00a0encourage 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.\u201d<\/p>\n 39.\u00a0\u00a0Disability and sex are among the protected characteristics set out in Section 149 (7) of the Act.<\/p>\n E.\u00a0\u00a0Relevant case-law<\/strong><\/p>\n 40.\u00a0\u00a0In Burnip v. Birmingham City Council and others ([2012] EWCA Civ 629) the Court of Appeal on 15 May 2012 first examined the issue of discrimination in the context of the \u2018bedroom tax\u2019. The court\u2019s conclusions were later summarised as follows by the Court of Appeal in the second applicant\u2019s case:<\/p>\n \u201c32.\u00a0\u00a0Burnip concerned two cases of single severely disabled persons occupying two bedroom flats, and one family with three children including two severely disabled daughters occupying a four bedroom flat. In the third case (Gorry), it was inappropriate for the two disabled daughters aged 8 and 10 to share a bedroom because of their disabilities. In each case, their Housing Benefit had been reduced by the effect of […] Regulation B13. The Court of Appeal (Maurice Kay and Hooper\u00a0LJJ and Henderson J) held that the claimants had established a prima facie case of discrimination under Article 14 of the ECHR, and that the Secretary of State had failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria (paragraph 24 of Maurice Kay LJ\u2019s judgment). Henderson\u00a0J (with whom the other members of the court agreed) held that DHPs could not be regarded as a complete or satisfactory answer to the problem (paragraphs 46 and 64). He also held in paragraph 64 that there was no question of a general exception from the normal bedroom test for disabled people of all kinds. The exception was sought for only a very limited category of claimants, namely those with a disability so severe that an extra bedroom is needed for a carer to sleep in, or in Gorry\u2019s case where separate bedrooms were needed for children whose disabilities were so severe they could not be reasonably expected to share a single room. He made clear that such cases were by their very nature likely to be relatively few in number, easy to recognise, not open to abuse, and unlikely to undergo change or need regular monitoring.\u201d<\/p>\n 41.\u00a0\u00a0In the judgment of Burnipitself, the Court of Appeal commented in more detail on why it could not regard DHP\u2019s as a \u201ccomplete or satisfactory answer to the problem\u201d:<\/p>\n \u201c46.\u00a0\u00a0…This follows from the cumulative effect of a number of separate factors. The payments were purely discretionary in nature; their duration was unpredictable; they were payable from a capped fund; and their amount if they were paid at all, could not be relied upon [to replace] the full amount of the shortfall. To recognise these shortcomings is not in any way to belittle the valuable assistance that [DHPs] are able to provide, but is merely to make the point that, taken by themselves, they cannot come anywhere near providing an adequate justification for the discrimination in cases of the present type.<\/p>\n 47.\u00a0\u00a0A further aspect of the problem is that housing, by its very nature, is likely to be a long term commitment. This is particularly so in the case of a severely disabled person, because of the difficulty in finding suitable accommodation and the probable need for substantial physical alternations to be made to the property in order to adapt it to the person\u2019s needs. Before undertaking such a commitment, therefore, a disabled person needs to have a reasonable degree of assurance that he will be able to pay the rent for the foreseeable future, and that he will not be left at the mercy of short term fluctuations in the amount of his housing-related benefits. For the reasons which I have given, [DHP\u2019s] cannot in practice provide a disabled person with that kind of reassurance.\u201d<\/p>\n 42.\u00a0\u00a0In R (Hurley and others) v. Secretary of State for Work and Pensions [2015] EWHC 3382 (Admin), the High Court considered a part of the Housing Benefit Regulations 2006 which introduced a limit (a \u2018cap\u2019) on the total amount of benefits an individual could receive. The claimants provided unpaid care to severely disabled persons for at least 35 hours per week, for which they received a \u201cCarer\u2019s Allowance\u201d. That allowance was considered a benefit and so \u2018capped\u2019 as a result of the Regulations, resulting in a reduction in the amount that the claimants received.<\/p>\n 43.\u00a0\u00a0One of the claimants cared for her disabled grandmother in London but as a result of the reduction in her benefits fell into debt with her rent payments and was evicted with her four children from her local authority flat. She was offered homeless accommodation in Birmingham, but refused this as she could not have cared for her Grandmother if she moved to that city with her family. She moved with her children to live in one bedroom in her Grandmother\u2019s house in London in \u201cintolerable\u201d conditions (see \u00a7 30). She applied to two local, London boroughs for DHP who refused her request on the basis that they had run out of DHP funds (see \u00a7 30).<\/p>\n 44.\u00a0\u00a0In its judgment of 15 May 2019 in R (on the application of DA and others) (Appellants) v. Secretary of State for Work and Pensions (Respondent), and R (on the application of DS and others (Appellants) v.\u00a0Secretary of State for Work and Pensions (Respondent) [2019] UKSC\u00a021 the Supreme Court examined appeals brought by various lone parent mothers and their young children to challenge legislative provisions known as the \u2018benefit cap\u2019, which capped specified welfare benefits at a certain amount per household.<\/p>\n 45.\u00a0\u00a0The Supreme Court considered the appropriate test by which to assess the justification under Article 14 for \u201can economic measure introduced by the democratically empowered arms of the state…\u201d (see\u00a7\u00a055). Lord Wilson giving the lead judgment stated:<\/p>\n \u201c65. … there was – and there still remains – clear authority both in the Humphreys case and in the bedroom tax case for the proposition that […] in relation to the government\u2019s need to justify what would otherwise be a discriminatory effect of a rule governing entitlement to welfare benefits, the sole question is whether it is manifestly without reasonable foundation. Let there be no future doubt about it.\u201d<\/p>\n 46.\u00a0\u00a0Lady Hale and Lord Kerr dissented. Lady Hale opined:<\/p>\n \u201c147.\u00a0\u00a0Lord Kerr is surely right to question whether the test which the Strasbourg court will apply in matters of socio-economic policy should also be applied by a domestic court. The Strasbourg court applies that test, not because it is necessarily the proper test of proportionality in this area, but because it will accord a \u201cwide margin of appreciation\u201d to the \u201cnational authorities\u201d in deciding what is in the public interest on social or economic grounds. The national authorities are better able to judge this because of their \u201cdirect knowledge of their society and its needs\u201d (see Stec, para 52). It does not follow that national courts should accord a similarly wide discretion to national governments (or even Parliaments). The margin of appreciation is a concept applied by the Strasbourg court as part of the doctrine of subsidiarity. The standard by which national courts should judge the measures taken by national governments is a matter for their own constitutional arrangements.<\/p>\n 148.\u00a0\u00a0Not only that, it has been noted that, in Stec, the Grand Chamber cited James v\u00a0United Kingdom (1986) 8 EHRR 123 as authority for its \u201cmanifestly without reasonable foundation\u201d standard. But in James, it is fairly clear that the Strasbourg court drew a distinction between two questions: first, was the measure \u201cin the public interest\u201d for the purpose of A1P1 (or, in article 8 terms, does it pursue a legitimate aim); and second, was there a reasonable relationship of proportionality between the means employed and the aim sought to be realised. This latter requirement had been expressed in Sporrong and L\u00f6nnroth v Sweden 5 EHRR 35, at para 69, as \u201cwhether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual\u2019s fundamental rights\u201d (see James, para 50). The \u201cmanifestly without reasonable foundation\u201d standard was applied to the first but not the second question.\u201d<\/p>\n III.\u00a0\u00a0RELEVANT INTERNATIONAL AND EUROPEAN MATERIAL<\/p>\n