Burnip v Birmingham City Council [2012] EWCA Civ 629 CH 2823 2009
| Jurisdiction | UK Non-devolved |
| Judge | Judge P. L. Howell Q.C. |
| Judgment Date | 13 January 2011 |
| Neutral Citation | 2011 UKUT 23 AAC |
| Subject Matter | Human rights law |
| Respondent | Birmingham City Council |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CH 2823 2009 |
| Appellant | Burnip v Birmingham City Council [2012] EWCA Civ 629 |
DECISION OF THE UPPER TRIBUNAL
The claimant’s appeal is dismissed and the first-tier tribunal’s decision of 17 March 2009 on the amount of housing benefit to which he was entitled from 9 June 2008 confirmed.
REASONS
Mr P L Howell QC
Introduction
1. This appeal by the claimant must be dismissed, as in my judgment there was no error of law in the decision of the Birmingham tribunal of 17 March 2009 (Mr R J S Hawes, First-tier Judge, sitting alone) that he was entitled to housing benefit from 9 June 2008 for his privately rented flat with the eligible rent calculated at the local housing allowance rate for single bedroom self-contained accommodation under regulations 13D(2) and (3) of the Housing Benefit Regulations 2006 S.I. No. 213 and Schedule 3B to the Rent Officers (Housing Benefit Functions) Order 1997 S.I. No 1984 as in force at the relevant time, and not at the higher rate for two bedrooms.
2. Leave to bring this appeal was granted by another judge of the first-tier tribunal. The sole issue raised in it, not raised or mentioned at all in the proceedings below, is whether the calculation of the claimant’s eligible rent under the Housing Benefit Regulations amounts to unlawful discrimination against him contrary to section 6 of the Human Rights Act 1998 and Article 14 of the Convention on Fundamental Rights and Freedoms, he being a person severely disabled with spinal and muscular dystrophy. It is not disputed that the first-tier decision, and the housing benefit authority awards it confirmed, gave him his prescribed entitlement to housing benefit under section 130 of the Social Security Contributions and Benefits Act 1992 and the relevant regulations. In this appeal he now contends that the failure of the domestic legislation to give him a greater amount is unlawful discrimination and that this can and must be remedied under the Human Rights Act by increasing his award, from the category (b) rate for single-bedroom self-contained accommodation for one occupier (the one prescribed for his circumstances) to the category (c) two-bedroom rate (the next one up, prescribed for accommodation for two resident adult occupiers not living as a couple), a weekly increase for him of some £23.
3. As the first-tier judge observed when granting permission to appeal this frontal challenge to the prescribed limits under the housing benefit legislation raised a point of general importance. Direct regulation of rents having now largely been abandoned, the local housing allowance system (which limits the rent eligible for benefit to locally prescribed median rates for the various categories of accommodation) now represents the central government’s main way of trying to contain the ballooning cost of housing benefit payments to the private rented sector. A challenge to its validity could have wide implications and potentially affect many other people and groups, not just the disabled, who may also feel their special needs are not catered for adequately in the rates prescribed: concerns that are likely to increase as the effects of the present government’s further attempts to cut benefit costs begin to be felt. The Secretary of State was therefore joined as a second respondent to the appeal, the first being the Birmingham City Council whose decision as the housing benefit authority the tribunal had confirmed. Ssubsequently the Equality and Human Rights Commission, which had become aware of the proceedings and wished to make submissions on the points of principle involved, was also joined at its own request and on my direction as intervener.
4. I held an oral hearing of the appeal. Tim Buley, instructed by Irwin Mitchell, appeared for the claimant. Tim Eicke, instructed by the solicitor to the Department for Work and Pensions, appeared for the Secretary of State. Ben McCormack appeared for the Commission, instructed by Rhodri McDonald, its solicitor. Quite understandably in view of the role by then taken on by the Secretary of State, the Council did not appear at the hearing, though it had made a helpful written submission by its solicitor, Mr R Keane, expressing broad sympathy for the claimant’s position while being unable to concede the appeal. I found all of the arguments, both written and oral, well constructed and illuminating, and all the points made and material put before me have been taken into account in the conclusions I have reached, even though I have not found it necessary to prolong this judgment by referring to them all expressly.
The facts
5. The claimant is a young man now aged 24 who at the time of his housing benefit claim on 6 June 2008 was a full-time student, just coming up to the end of the third year of his four-year degree course for a BSc in politics and international relations at Aston University. As I have already said, he has spinal and muscular dystrophy and has at all times been a severely disabled person. It needs to be said at the outset that with his level of disability, the barriers he has had to overcome in reaching this level of achievement, the courage on his part involved in doing so and the support he will have had from his parents and others in helping him along the way, must all have been quite formidable.
6. An assessment by the Warwickshire County Council Social Services Department of his day to day needs was in evidence before the first-tier tribunal and accepted in its findings: pages 23, 102. This showed that he required 24-hour care and support, assessed as best provided by employing a team to maintain live-in care. It is not in dispute, and the tribunal so found, that at all material times the claimant was being provided with care on this basis in his own self-contained flat, with the team taking it in turns (or doing tours of duty a week or so at a time) to stay there overnight so as to be on hand to assist with any personal care tasks needed in the night such as repositioning the claimant on the bed. However he did not require anyone to be constantly awake and watching over him, so the carer on duty could sleep for most of the time in a separate bedroom.
7. For this level of assessed care needs, the claimant therefore required to be in accommodation that included an extra bedroom in the same flat which the carer could use. Nor of course was every two-bedroom flat suitable for a person with his needs. As he explained in a letter of 22 June 2008 applying to the council for a discretionary housing payment to meet the full cost of his rent (page 15), the flat he had then rented and on which he claimed housing benefit was the only one out of 11 his parents viewed on his behalf that had level access and suitably sized rooms to store and cope with all the disability equipment he needs to have, such as a powered wheelchair, manual wheelchair for emergency use, hoists, bathroom chairs, etc. Even after they found the flat and he began renting it at the end of May 2008 there were some things that needed altering because of his disability and he was not able to move in until 16 June 2008: page 48.
8. The rent he actually had to pay for this flat was £155.77 per week. Perhaps unsurprisingly, that figure was well above the prescribed median level for the area, even where two bedrooms were allowable. It compared with: (a) £66 a week, the “single room shared accommodation” rate which was all that would have been allowable for a non-disabled single person of his age at the relevant time; (b) £103.85 per week, the “single bedroom self-contained accommodation” rate that actually applied to him under the regulations as a severely disabled person in sole occupation; and (c) £126.92 per week, the rate the claimant has throughout contended should apply to him, which was the “two-bedroom rate” prescribed for self-contained accommodation occupied by two adult residents not living together as a couple.
The domestic law and the first-tier decision
9. As I have already said it is not now disputed, and in my view is plainly indisputable, that the first-tier judge was right for the reasons he gave in holding the prescribed “eligible rent” under regulations 11, 12D and 13D of the Housing Benefit Regulations for calculating the claimant’s housing benefit on his claim of 6 June 2008 was (b), and not (c) or for that matter (a). The reason for this is that, while the claimant as a severely disabled person in receipt of the highest rates of both components of disability living allowance (which he was, and is) was not restricted to the single room shared accommodation rate (as a non-disabled single person of his own age would be: regulation 13D(2)(a)), nor was he excluded from housing benefit altogether (as a non-disabled single person of his own age would be while...
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