R MA & Others v The Secretary of State for Work and Pensions Equality and Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Ryder,Master of the Rolls |
| Judgment Date | 21 February 2014 |
| Neutral Citation | [2014] EWCA Civ 13 |
| Docket Number | Case No: C1/2013/2452 & C1/2013/2453 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 2014 |
[2014] EWCA Civ 13
MASTER OF THE ROLLS
Lord Justice Longmore
and
Lord Justice Ryder
Case No: C1/2013/2452 & C1/2013/2453
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION, DIVISIONAL COURT
LORD JUSTICE LAWS AND MR JUSTICE CRANSTON
CO24832013&CO2488201 & CO248224832488248624
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Westgate QC and Kate Markus (instructed by Leigh Day Solicitors and Public Law Solicitors) Richard DrabbleQC (instructed by Leigh Day) for the Appellants
Tim Eicke QC and Edward Brown (instructed by Treasury Solicitors) for the Respondent
Helen Mountfield QC (instructed by Equality and Human Rights Commission) for the Intervener
Master of the Rolls
Housing benefit ("HB") is a means-tested benefit available to assist tenants to pay their rent. The claimants in these proceedings complain about the basis on which HB is calculated in relation to rents in the public sector. The measures of which complaint is made are contained in the Housing Benefit (Amendment) Regulations 2012 ("the 2012 Regulations") as further amended by the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013 ("the 2013 Regulations") which amended the Housing Benefit Regulations 2006 ("the 2006 Regulations"). The 2012 Regulations reduced the eligible rent for the purpose of calculating HB where the number of bedrooms in a property let exceeds the number to which a claimant is entitled by reference to the standard criteria set out in Regulation B13 ("the bedroom criteria"). The reduction in eligible rent is 14% where there is one excess bedroom and 25% where there are two or more.
The 2012 Regulations were intended to address the problem that some tenants of social housing were occupying more space than they needed, by limiting the HB entitlement of those "under-occupying" accommodation to an "appropriate maximum housing benefit". "Under-occupation" is defined by reference to the bedroom criteria. The adoption of these criteria to determine the appropriate maximum housing benefit has been a matter of great public controversy.
Under the existing regime (which will change when Universal Credit is introduced), eligibility for HB is assessed by reference to broad criteria for the assessment of deemed need at the local level by local authority decision-makers. Regulation B13 applies the bedroom criteria to public sector tenants so as to determine the number of bedrooms the claimant's household is deemed to need for the purpose of determining the appropriate maximum HB. Having applied the bedroom criteria, the decision-maker then applies specific additional criteria to certain categories of persons ("the additional categories"). Once an applicant's deemed need has been assessed, the overall scheme then provides for an inquiry into any further case-specific actual need, which is carried out by the local authority decision-maker on receipt of an application for additional assistance. This is done by a consideration of individual circumstances in order to determine whether to make additional contributions by way of Discretionary Housing Payments ("DHPs"). This is the scheme provided for by the Discretionary Financial Assistance Regulations 2001 ("the DFA Regulations").
The challenge is now based on two grounds. First, it is said that the reduction in eligible rent discriminated against disabled persons such as the claimants without justification and therefore violates their rights under article 14 of the European Convention on Human Rights ("the Convention") when read in conjunction with article 1 of the First Protocol of the Convention ("A1P1"). Secondly, it is said that the Secretary of State introduced the new measures in breach of his public sector equality duty ("PSED") under section 149 of the Equality Act 2010 (" EA") to have "due regard" to the need to eliminate discrimination and advance equality of opportunity between persons who are disabled and those who are not. It is common ground that HB falls within the ambit of A1P1 as a "possession" and disability falls within the concluding words of article 14 as "other status".
Both challenges were rejected by the Divisional Court (Laws LJ and Cranston J) in judgments handed down on 30 July 2013.
The Legislation
Article 14
Article 14 provides:
"The enjoyment of the rights and freedoms set forth in this 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."
The Social Security Statutes
The material amendments of the 2006 Regulations effected by the 2012 Regulations and the 2013 Regulations were made under powers conferred by the Social Security Contributions and Benefits Act 1992 as amended by section 69 of the Welfare Reform Act 2012. Section 130(1) of the 1992 Act entitles a person to HB if certain conditions are fulfilled, including
"(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home;
(b) there is an appropriate maximum housing benefit in his case."
Section 130A provides for the determination of the appropriate maximum HB. So far as material, it states:
"(2) Regulations may prescribe the manner in which the appropriate maximum housing benefit is to be determined.
……………
(5) The regulations may, for the purpose of determining the appropriate maximum housing benefit, provide for the amount of the liability mentioned in section 130(1)(a) above to be taken to be an amount other than the actual amount of that liability…
(6) The regulations may, for that purpose, make provision for determining the amount of liability under section 130(1)(a) above which a person is treated as having by virtue of regulations under section 137(2)(j) below…"
Section 69(1) of the Child Support, Pensions and Social Security Act 2000 provides:
"The Secretary of State may by regulations make provision conferring a power on relevant authorities to make payments by way of financial assistance ("discretionary housing payments") to persons who—
(a) are entitled to housing benefit or council tax benefit, or to both; and
(b) appear to such an authority to require some further financial assistance (in addition to the benefit or benefits to which they are entitled) in order to meet housing costs."
The Regulations
The relevant provisions of the 2006 Regulations as amended by the 2012 Regulations and further amended by the 2013 Regulations are as follows:
"11(1) Subject to the following provisions of this regulation, housing benefit shall be payable in respect of the payments specified in regulation 12(1) (rent) and a claimant's maximum housing benefit shall be calculated under Part 8 (amount of benefit) by reference to the amount of his eligible rent determined in accordance with —
(a) regulation 12B (eligible rent)…"
The eligible rent is the rent due subject to certain adjustments (see in particular Regulation 12B(2)). Regulation A13(1) requires the relevant authority (subject to exceptions with which we are not concerned) to "determine a maximum rent (social sector) in accordance with regulation B13." Regulation B13 provides so far as material:
"(1) The maximum rent (social sector) is determined in accordance with paragraphs (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 paragraph (5), reducing that amount by the appropriate percentage set out in paragraph (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 it 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 10 years old;
(e) a child…"
The Regulations also provide for one additional bedroom in any case where the claimant or the claimant's partner is an adult who requires overnight care (B13(6)(a)); is a qualifying parent or carer (being a foster parent or carer) (B13(6)(b)); or is a member of the armed forces away on operations (B13(8)).
As I have indicated, section 149 of the EA introduced the PSED, on which the second ground of challenge is based. So far as material, it provides:
"(1) A public authority...
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