Regina (MA and others) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening)
 UKSC 58;  WLR (D) 582
2016 Feb 29; March 1, 2; Nov 9
Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmon DPSC, Lord Mance , Lord Sumption , Lord Carnwath , Lord Hughes , Lord Toulson JJSC
Social security — Housing benefit — Assessment — Secretary of State introducing changes to calculation of appropriate maximum housing benefit for public sector tenants — Effect of changes to reduce benefit payable in cases of deemed under-occupancy — Regulation precluding any provision for additional bedroom above number deemed necessary by application of standard size criteria — Additional criteria in regulation allowing for additional bedroom in respect of specified classes of person — Claimants being persons outside additional criteria either needing additional bedroom for disability-related reason or having additional bedroom for inconsequential reason but needing to remain in property as providing specially-converted secure “sanctuary scheme” accommodation — Whether changes having disproportionate adverse impact on disabled persons and/or female victims of domestic violence — Whether unlawful discrimination in enjoyment of Convention right — Whether breach of public sector equality duty — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 14, Pt II, art 1 — Equality Act 2010 (c 15), s 149 — Housing Benefit Regulations 2006 (SI 2006/213), reg B13 (as inserted by Housing Benefit (Amendment) Regulations 2012 (SI 2012/3040), reg 5(7) and amended by Housing Benefit (Amendment) Regulations 2013 (SI 2013/665), reg 2(3) and Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013 (SI 2013/2828), reg 2(3))
In 2012 regulation B13 was inserted into the Housing Benefit Regulations 2006, applying “standard size criteria” to the household of a housing benefit claimant of working age who was a social sector tenant, so as to determine how many bedrooms the claimant’s household was deemed to need for the purpose of determining the appropriate maximum housing benefit. The criteria required couples, or children under 10 of either gender or under 16 of the same gender, to share a bedroom and did not allow for a “spare room” but the regulation employed specific additional criteria in respect of certain categories of persons so as to increase the number of bedrooms deemed to be needed in their cases, including children whom the standard size criteria would expect to share a bedroom but who could not do so because of disability, and adults who required a spare room to allow a carer to stay overnight. Provision was made allowing for discretionary payments to be made out of a central government block grant, administered by local authorities, to persons whose personal circumstances were such that they would be adversely affected by an application of regulation B13. The claimants in the first case were recipients of housing benefit in respect of social sector homes who fell outside the additional criteria categories but who claimed that they nevertheless had an accommodation need which was greater, by reason of their (or a family member’s) disabilities, than those who were unaffected by such disabilities, including a need for a room to keep disability aids, a need for a person who did not have primary care of his disabled child to have a room for when he stayed with him, needs by reason of a blindness-related psychological dependence, and of psychiatric illness, to avoid moving to unfamiliar surroundings, and, in the case of one claimant, C, the need for an additional bedroom because her disability was such that it was necessary for her partner to sleep in another room. The claimant family in the second case needed an additional bedroom to accommodate overnight carers for their severely disabled grandson, who as a child was outside the additional criteria applicable to adults needing overnight carers. The claimant in the third case did not suffer from a disability but was a woman at risk of serious violence from a former partner and whose social sector three-bedroom flat, which had initially been alllocated to her and her son because of a shortage of two-bedroom accommodation in her area, had been specially adapted to include secure “sanctuary scheme” accommodation.
The claimants all claimed judicial review on the grounds that the new measures unlawfully discriminated against them in violation of their rights under article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms read with article 8, or with article 1 of the First Protocol thereto (housing benefit being a possession for that purpose), and, in the first and third cases, that it also involved a breach by the Secretary of State of the public sector equality duty in section 149 of the Equality Act 2010. In the first two cases the Divisional Court of the Queen’s Bench Division, and in the third case the judge, dismissed the claim. On appeal by the claimants in the first case, the Court of Appeal held that although regulation B13 had a discriminatory effect on some people with disabilities, the test as to whether it could be justified for the purposes of article 14 was whether the measure was manifestly without reasonable foundation and that, since the Secretary of State had been entitled to take the view that it was not practicable to exempt an imprecise class of persons to whom the bedroom criteria would not apply because they needed extra bedroom space by reason of disability and that, instead provision should be made for such persons by means of discretionary payments, the insertion of regulation B13 had not been without reasonable foundation and did not infringe article 14. In C’s case the Court of Appeal distinguished her need to sleep in a separate room from that of children who were unable to sleep in the same room as each other and who fell within the additional criteria allowed by regulation B13, on account of the Secretary of State being entitled to provide greater protection for a child than an adult because of the best interests of a child being a primary consideration. On a joined appeal by the claimants in the second and third cases, a differently constituted Court of Appeal, applying the manifestly without reasonable foundation test, held, in the second case, that the lack of any provision allowing for a room for an overnight carer for a child could not be justified when the need for a room for such carer in the case of an adult fell within the additional criteria allowed by regulation B13, and, in the third case, that the Secretary of State had failed to justify his not making provision for persons in sanctuary scheme accommodation. In the first and third cases the Court of Appeal additionally held that there had been no breach of the public sector equality duty.
On appeal by the claimants in the first case and by the Secretary of State in the second and third cases, and on cross-appeal by the claimant in the third case on the section 149 point—
Held, (1) The approach to justification in cases involving discrimination in state benefits on the ground of sex, whereby in general measures of economic or social strategy the court would generally respect the legislature’s policy choice unless it were manifestly without reasonable foundation, applied equally to cases involving discrimination in state benefits on the ground of disability, since choices about welfare systems involved policy decisions on economic and social matters which were pre-eminently matters for national authorities. However, the application of that test did not lessen the need for careful scrutiny of the reasons advanced by the Secretary of State in justification of the impugned measure (paras 29–32, 38, 81).
Dicta of Baroness Hale of Richmond JSC in Humphreys v Revenue and Customs Comrs  1 WLR 1545, paras 15-19, 22, SC(E) applied.
(2) C’s appeal allowed; appeals of the other claimants in the first case dismissed; and appeal of the Secretary of State in the second case dismissed. The Secretary of State’s decision to structure the housing benefit cap scheme without creating a blanket exception for anyone suffering from a disability within the meaning of the Equality Act 2010 but instead to regard a discretionary housing payment scheme as more appropriate than an exhaustive set of bright line rules to cover every contingency, was reasonable. However it was unreasonable to fail to make provision for persons with a disability who had a transparent medical need for an additional bedroom. Regulation B13 already made provision in respect of children whom the standard size criteria would expect to share a bedroom but who could not do so because of disability, and in respect of adults who required a spare room to allow a carer to stay overnight. There was no reasonable justification why cases of similar medical reasons preventing an adult from sharing a bedroom, or requiring a child to have an overnight carer, should be subjected to differential treatment. But where the claimed need for an additional bedroom was not the result of an objective need, it was reasonable for such need to be considered on an individual basis under the discretionary housing payment scheme. The claims of C and of the claimant family in the second case under article 14 taken with article 8 of the Convention, being based on a transparent nedical need, had therefore been made out, but the claims of the other claimants in the first case, albeit based on powerful individual reasons, had not demonstrated an objective need for the additional bedroom and so failed (paras 40–41, 42–49, 50–55, 81).
Burnip v Birmingham City Council  PTSR 117, CA considered.
(3) Secretary of State’s appeal in the third case allowed (Baroness Hale of Richmond DPSC and Lord Carnwath JSC dissenting). Notwithstanding the powerful reasons which a woman at risk of serious violence might have for remaining in an existing under-occupied property adapted for her protection, such reasons did not amount to a transparent medical need. Although it would have been possible for the Secretary of State to have created a suitable exception from the size criteria for victims of gender violence who were in a sanctuary scheme and who needed to stay in their existing accommodation for that reason, his decision not to do so but to rely on a proper application of the discretionary housing payment scheme was not manifestly without foundation. The claimant in the third case had not established that the adoption of regulation B13 had breached her rights under article 14 taken with article 8 of the Convention (paras 56, 58–62, 66).
(4) Cross-appeal by the claimant in the third case dismissed (Baroness Hale of Richmond DPSC and Lord Carnwath JSC dissenting). It was a requirement for a public authority decision-maker actively to consider the duty under section 149 of the 2010 Act, namely to have due regard to the need to eliminate discrimination, and to advance equality of opportunity, between those with and without a relevant protected characteristic. In relation to those with disabilities, the Secretary of State had fulfilled that duty. Although the Secretary of State, in addressing the question of gender-based discrimination when introducing regulation B13, had not specifically identified victims of gender violence in sanctuary schemes, that failure, by reason of the small number of such persons and given that there was no automatic correlation between being in a sanctuary scheme and having a need for an extra bedroom, did not impugn the otherwise proper application of the section 149 duty. None of the Equality Act claims had been made out (paras 67–70).
Per Baroness Hale of Richmond DPSC and Lord Carnwath JSC. People in sanctuary schemes may be small in number but victims of gender-based violence are many. Public authorities should take their needs into account when developing their policies: they are likely to make better decisions as a result and they will be able to explain them better (para 80).
Decision of the Court of Appeal in R (MA) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening)  EWCA Civ 13;  PTSR 584, CA reversed in part.
Decision of the Court of Appeal in R (Rutherford) v Secretary of State for Work and Pensions  EWCA Civ 29;  WLR (D) 36 reversed in part.
Martin Westgate QC and Aileen McColgan (instructed by Central England Law Centre, Birmingham) for the claimants Daly, Drage and JD and (instructed by Leigh Day) for the claimant Rourke iin the first case.
Richard Drabble QC (instructed by Leigh Day) for the claimant Carmichael in the first case.
Richard Drabble QC and Tom Royston (instructed by Solicitor, Child Poverty Action Group) for the claimants in the second case.
Karon Monaghan QC, Caoilfhionn Gallagher and Katie O’Byrne (instructed by Hopkin Murray Beskine) for the claimant in the third case.
James Eadie QC, Tim Eicke QC, Gemma White QC, Edward Brown and Simon Pritchard (instructed by Treasury Solicitor) for the Secretary of State.
Helen Mountfield QC and Raj Desai (instructed by Solicitor, Equality and Human Rights Commission, Manchester) for the Equality and Human Rights Commission, intervening.
Reported by: Colin Beresford, Barrister.
© 2016. The Incorporated Council of Law Reporting for England and Wales.