R (MA and Others) v Secretary of State for Work and Pensions

JurisdictionEngland & Wales
JudgeLord Toulson,Lord Neuberger,Lord Mance,Lord Sumption,Lord Hughes,Lady Hale,Lord Carnwath
Judgment Date09 November 2016
Neutral Citation[2016] UKSC 58
Date09 November 2016
CourtSupreme Court
R (on the application of Carmichael and Rourke) (formerly known as MA and others)
(Appellants)
and
Secretary of State for Work and Pensions
(Respondent)
R (on the application of Daly and others) (formerly known as MA and others)
(Appellants)
and
Secretary of State for Work and Pensions
(Respondent)
R (on the application of A)
(Respondent/Cross-Appellant)
and
Secretary of State for Work and Pensions
(Appellant/Cross-Respondent)
R (on the application of Rutherford and another)
(Respondents)
and
Secretary of State for Work and Pensions
(Appellant)

[2016] UKSC 58

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Mance

Lord Sumption

Lord Carnwath

Lord Hughes

Lord Toulson

THE SUPREME COURT

Michaelmas Term

On appeal from: [2014] EWCA Civ 13 and [2016] EWCA Civ 29

Appellant (Carmichael)

Richard Drabble QC (Instructed by Leigh Day) UKSC 2014/0125

Respondents (Carmichael, Daly, Drage, JD and Rourke)

James Eadie QC Tim Eicke QC Gemma White QC Edward BrownSimon Pritchard (Instructed by The Government Legal Department)

Appellants (Daly, Drage, and JD)

Martin Westgate QC Aileen McColgan (Instructed by Central England Law Centre) UKSC 2014/0129

Appellant (Rourke)

Martin Westgate QC Aileen McColgan (Instructed by Leigh Day)

Appellant and Cross-Respondent (A)

James Eadie QC Tim Eicke QC Gemma White QC Edward BrownSimon Pritchard (Instructed by The Government Legal Department)

Respondent and Cross-Appellant (A)

Karon Monaghan QC Caoilfhionn GallagherKatie O'Byrne (Instructed by Hopkin Murray Beskine Solicitors) UKSC 2016/0025

Appellant (Rutherford)

James Eadie QC Tim Eicke QC Gemma White QC Edward BrownSimon Pritchard (Instructed by The Government Legal Department)

Respondent (Rutherford)

Richard Drabble QC Tom Royston (Instructed by Child Poverty Action Group) UKSC 2016/0029

Intervener (Equality & Human Rights Commission)

Helen Mountfield QC Raj Desai (Instructed by Equality & Human Rights Commission)

Lord Toulson

(with whom Lord Neuberger, Lord Mance, Lord SumptionandLord Hughesagree)

1

These appeals concern the impact of a cap on housing benefit ("HB"), in cases of deemed under-occupation of social sector housing, on those with disabilities and on women living in "sanctuary scheme" accommodation.

2

The cap was imposed by Regulation B13 of the Housing Benefit Regulations 2006 (SI 2006/213) ("Reg B13"). Reg B13 was introduced with effect from 1 April 2013, by way of amendment of the 2006 Regulations by the Housing Benefit (Amendment) Regulations 2012 (SI 2012/3040), as further amended by the Housing Benefit (Amendment) Regulations 2013 (SI 2013/665). It was a politically controversial matter, described as either a "bedroom tax" or "removal of the spare room subsidy" according to political viewpoint. Its merits are not a matter for the court, nor is there any challenge to the legality of the cap as it applies in general. The issues before the court are narrower.

3

The appeals are from two judgments of the Court of Appeal, differently constituted, in judicial review proceedings. The claimants either have disabilities, or live with dependent family members who have disabilities, or live in what are known as "sanctuary scheme" homes (accommodation specially adapted to provide protection for women at severe risk of domestic violence). They are all tenants of registered social landlords and they all receive or received HB. They challenge the validity of Reg B13, as it applies to them, on equality grounds. More specifically, they contend that there has been a violation of their rights under article 14 of the European Convention on Human Rights ("ECHR"), taken with article 8 and/or article 1 of the First Protocol ("A1P1") and in A's case that there has been a breach by the Secretary of State of the Public Sector Equality Duty ("PSED") under the Equality Act 2010. They are supported in their challenges by the Equality and Human Rights Commission ("EHRC"), which was given permission to intervene.

4

In the first set of proceedings, issued by MA and others, some of the claims (including MA's claim) were resolved. When the case reached the Court of Appeal the claims remaining in issue were those of Jacqueline Carmichael, Richard Rourke, Mervyn Drage, JD and James Daly. Their claims were rejected by the Divisional Court (Laws LJ and Cranston J) [2013] EWHC 2213 (QB), and the Court of Appeal (Lord Dyson MR, Longmore and Ryder LJJ) [2014] EWCA Civ 13. The other appeal arises from proceedings brought separately by A and the Rutherford family. Their claims were dismissed at first instance by different judges, but their appeals were heard together, and both succeeded in the Court of Appeal (Lord Thomas CJ and Tomlinson and Vos LJJ) [2016] EWCA Civ 29. A, who is in a sanctuary scheme, succeeded under article 14 on the ground of sex discrimination, but failed in her claim under the Equality Act. The Rutherfords succeeded under article 14 on the ground of disability discrimination. The Secretary of State is the respondent in the MA case and is the appellant in relation to A and the Rutherfords. (In the case of A, there is a cross appeal against the rejection of her Equality Act claim.) The key facts relating to the individual claimants are summarised in appendix 1 to this judgment.

Housing benefit and Regulation B13
5

HB is a means tested benefit provided under section 130 of the Social Security Contributions and Benefits Act 1992 and subordinate regulations. (It is due to be replaced eventually by Universal Credit, which is in the process of being rolled out across parts of the United Kingdom.) Its purpose is to help claimants with their rental costs. There is a prescribed mechanism for determining in each case the appropriate maximum housing benefit ("AMHB"). Section 130A of the 1992 Act, as amended, allows regulations to provide for the amount of the claimant's rental liability to be taken into account in calculating the AMHB to be less than the actual liability.

6

The AMHB is calculated by reference to the "eligible rent". Reg B13 provides for adjustment of the eligible rent and AMHB in the area of social sector housing. The relevant parts are as follows:

"(1) The maximum rent (social sector) is determined in accordance with paras (2) to (4).

(2) The relevant authority must determine a limited rent by —

(a) determining the amount that the claimant's eligible rent would be in accordance with regulation 12B(2) …

(b) where the number of bedrooms in the dwelling exceeds the number of bedrooms to which the claimant is entitled in accordance with paras (5) to (7), reducing that amount by the appropriate percentage set out in para (3); …

(3) The appropriate percentage is —

(a) 14% where the number of bedrooms in the dwelling exceeds by one the number of bedrooms to which the claimant is entitled; and

(b) 25% where the number of bedrooms in the dwelling exceeds by two or more the number of bedrooms to which the claimant is entitled.

(4) Where it appears to the relevant authority that in the particular circumstances of any case the limited rent is greater than is reasonable to meet by way of housing benefit, the maximum rent (social sector) shall be such lesser sum as appears to that authority to be an appropriate rent in that particular case.

(5) The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant's dwelling as their home (and each person shall come within the first category only which is applicable) —

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

(b) a person who is not a child;

(ba) a child who cannot share a bedroom;

(c) two children of the same sex;

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

(e) a child…

(6) The claimant is entitled to one additional bedroom in any case where —

(a) a relevant person is a person who requires overnight care; or

(b) a relevant person is a qualifying parent or carer.

(9) In this regulation 'relevant person' means —

(a) the claimant;

(b) the claimant's partner;

(c) a person ("P") other than the claimant or the claimant's partner who is jointly liable with the claimant or the claimant's partner (or both) to make payments in respect of the dwelling occupied as the claimant's home;

(d) P's partner."

7

A person who requires overnight care is defined in Reg 2(1) in terms which have the effect of not including any child.

8

HB is payable at a reduced rate to claimants with an income above the "applicable amount": Social Security Contributions and Benefits Act 1992, section 130(1). Regulations determine the applicable amount and what income is to be taken into account. The applicable amount is set at a level which is intended to cover a claimant's basic living needs other than rent.

Discretionary Housing Payments
9

There is also a statutory scheme for enabling Discretionary Housing Payments ("DHPs") to be made to persons who are entitled to HB and/or council tax benefit: Child Support, Pensions and Social Security Act 2000, section 69. As the title indicates, such payments are discretionary. The scheme is funded by central government and administered by local authorities. By the terms of the Discretionary Financial Assistance Regulations ( SI 2001/1167), made under section 69 of the 2000 Act, an award 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. There 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.

Equality rights
10

Two sets of equality rights are in issue: a) under article 14 of the ECHR, taken...

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