Ian Burnip and Others v Birmingham City Council and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Maurice Kay,Lord Justice Hooper,Mr Justice Henderson
Judgment Date15 May 2012
Neutral Citation[2012] EWCA Civ 629
Docket NumberCase No: C3/2011/1580; C3/2011/1724; C3/2011/2572
Date15 May 2012

[2012] EWCA Civ 629

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER) Judge Howell QC [2011] UKUT 23 (AAC), Judge Jacobs [2011] UKUT 172 (AAC) and Judge Turnbull [2011] UKUT 198 (AAC)

CH/2823/2009

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay,

Vice President of the Court of Appeal, Civil Division

Lord Justice Hooper

and

Mr Justice Henderson

Case No: C3/2011/1580; C3/2011/1724; C3/2011/2572

Between:
Ian Burnip
1 st Appellant
and
(1) Birmingham City Council
Respondent
(2) Secretary of State for Work and Pensions
Rebecca Trengove (as Personal Representative of the Estate of Lucy Trengove
2 nd Appellant
and
(1) Walsall Metropolitan Council
Respondent
(2) Secretary of State for Work and Pensions
Richard Gorry
3rd Appellant
and
(1) Wiltshire Council
Respondent
(2) Secretary of State for Work and Pensions
Equality and Human Rights Commission
Intervener

Mr Richard Drabble QC and Mr Tim Buley and (instructed by Irwin Mitchell Solicitors) for the First Appellant

Mr Richard Drabble QC and Mr Desmond Rutledge (instructed by Birmingham Law Centre) for the Second Appellant

Mr Richard Drabble QC and Mr Tim Buley (instructed by the Child Poverty Action Group)) for the Third Appellant

Mr Tim Eicke QC and Mr Edward Brown (instructed by Department of Work and Pensions) for the Respondent

Ms Helen Mountfield QC for the Intervener

Hearing dates : 21, 22 March 2012

Approved Judgment

Lord Justice Maurice Kay
1

Disability can be expensive. It can give rise to needs which do not attach to the able-bodied. Ian Burnip and the late Lucy Trengove provide stark examples. Because of their severe disabilities they were assessed as needing the presence of carers throughout the night in rented flats in which they lived. For this reason they needed two-bedroom flats. In each case they were entitled to and received housing benefit (HB) but Birmingham City Council (in Mr Burnip's case) and Walsall Metropolitan Borough Council (in Ms Trengove's case) quantified it by reference to the one-bedroom rate which would apply to able-bodied tenants. The issue in their cases is whether this amounted to unlawful discrimination pursuant to Article 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Richard Gorry's case is somewhat different. He, his wife and their three children live in a four-bedroom rented house. Two of the children are girls who, at the material time, were aged 10 and 8. Both are disabled – one by Down's Syndrome, the other by Spina Bifida. For this reason it is inappropriate for them to share a bedroom in the way in which able-bodied sisters of those ages would be expected to do. The house is a four-bedroomed house but HB is provided by Wiltshire County Council by reference to the three-bedroomed rate which would apply to the family if the girls were not disabled. The same issue arises under Article 14. In all three cases, the properties in question are in the private rented sector. Different criteria would have applied in the social rented sector.

2

The three cases came to this Court by way of appeals from the Upper Tribunal. Sadly, Lucy Trengove died on 28 December 2011 but her case is being pursued by her estate in relation to the quantification of HB for the period prior to her death. The three cases were heard separately in the Upper Tribunal by different judges. The Burnip case was heard by Judge Howell QC who held that there was no contravention of Article 14: [2011] UKUT 23 (AAC). His decision was followed by Judge Jacobs in the Trengove case and by Judge Turnbull in the Gorry case.

The basic statutory provisions

3

Where a claimant has a local authority landlord, HB is paid by way of a rent rebate pursuant to section 134(1A) of the Social Security Administration Act 1992. In the private sector, however, HB is paid by way of a rent allowance. Section 134(1B) provides:

"In any other case [ie in private rented accommodation] housing benefit shall take the form of a rent allowance funded and administered by the local authority for the area in which the dwelling is situated …"

This form of HB is calculated by reference to the number of bedrooms which the claimant and his or her family are deemed to need. The Housing Benefit Regulations 2006 are concerned with the number of "occupiers", who are defined by regulation 13 D(12) as:

"the persons whom the relevant authority is satisfied occupy as their home the dwelling to which the claim or award relates except for any joint tenant who is not a member of the claimant's household."

4

The crucial provision is regulation 13 D(3):

"The claimant shall be entitled to one bedroom for each of the following categories of occupier ( and each occupier shall come within the first category only which applies to him) –

(a) a couple (within the meaning of Part 7 of the Act);

(b) a person who is not a child;

(c) two children of the same sex;

(d) two children who are less than 10 years old;

(e) a child."

It follows from these provisions that the overnight carers in the Burnip and Trengove cases did not qualify as "occupiers". The accommodation was not their "home" within the meaning of regulation 13 D(12) because they lived elsewhere and only stayed overnight when working on rota. The Gorry sisters fell within regulation 13 D (3)(c) as "two children of the same sex", for whom one bedroom was the prescribed provision.

5

Although it came too late to affect this case, the circumstances in the Burnip and Trengove cases (but not the Gorry case) are now governed by an amendment which, from 1 April 2011, provides for "one additional bedroom in any case where the claimant or the claimant's partner is a person who requires overnight care (or in any case where both of them are)."

6

As I have said, regulation 13 D does not apply where a local authority is the landlord. In such a case, persons are allocated property in the public sector on the basis of their assessed housing needs, including needs resulting from disability.

Article 14

7

Domestic disability discrimination legislation – in particular the Disability Discrimination Act 1995 – does not feature in this case. The appellants rely entirely on Article 14 of the ECHR which provides:

"The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

8

There are two important matters of common ground. First, disability is within the concluding words "or other status": see AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634. Secondly, HB falls within the ambit of Article 1 of the First Protocol as a "possession": Reg (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311. Accordingly, entitlement is covered by the opening words of Article 14: "The enjoyment of the rights … set forth in the Convention …". In these circumstances, it is not necessary to consider the appellants' alternative submission that they are covered by Article 14 when read with Article 8 which is concerned with the right to respect for a person's "private and family life, his home and his correspondence". We received no oral submissions on this alternative basis in view of the common ground about Article 1 of the First Protocol.

9

In view of the common ground, one can therefore proceed to the real issues which concern (1) whether there was discrimination on the ground of disability; and, if so, (2) whether any such discrimination (or difference in treatment) was justified. As the Grand Chamber stated in Stec v United Kingdom (2006) 43 EHRR 47 (at paragraph 51):

"A difference in treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment."

Discrimination

10

The case for the appellants is not that the statutory criteria amount to indirect discrimination against the disabled. It is that, in one way or another, they have a disparate adverse impact on the disabled or fail to take account of the differences between the disabled and the able-bodied. In their skeleton argument and oral submissions, counsel for the appellants describe these ways of putting their case as "complementary and overlapping" rather than mutually exclusive.

11

That Article 14 embraces a form of discrimination akin to indirect discrimination in domestic law is well-known. Thus, in DH v Czech Republic (2008) 47 EHRR 3, the Strasbourg Court stated (at paragraph 175):

"… a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group."

The submission here is that, whilst the statutory criteria provided for an able-bodied person to be given HB which would be an adequate contribution towards his accommodation needs, they failed to make equivalent provision in relation to the severely disabled, whose needs are more costly. Although neither group was provided with a benefit which would amount to a complete subsidy, the shortfall in relation to those such as the appellants was significantly greater because their HB was geared to one room fewer than their objective needs.

12

The answer of the Secretary of State to this analysis is that it is flawed because it does not identify correct comparators. Drawing on the domestic case of Lewisham Borough...

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