R (on the application of MA and Others) v The Secretary of State for Work and Pensions Birmingham City Council (Interested Party) The Equality and Human Rights Commission Shelter and Another (Interveners)

JurisdictionEngland & Wales
JudgeLord Justice Laws,Mr Justice Cranston
Judgment Date30 July 2013
Neutral Citation[2013] EWHC 2213 (QB)
Docket NumberCase Nos: CO/2502, 2483, 2488, 2494, 2486, 2492, 2491, 2503, 2507, 2482/2013
CourtQueen's Bench Division
Date30 July 2013
Between:
R (on the application of MA & Ors)
Claimants
and
The Secretary of State for Work and Pensions
Defendant

and

Birmingham City Council
Interested Party

and

(1) The Equality and Human Rights Commission Shelter
(2) Shelter
Interveners

[2013] EWHC 2213 (QB)

Before:

Lord Justice Laws

Mr Justice Cranston

Case Nos: CO/2502, 2483, 2488, 2494, 2486, 2492, 2491, 2503, 2507, 2482/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Martin Westgate QC, Ms Kate Markus, Ms Caoilfhionn Gallagher and Mr Ben Chataway (instructed by Hopkin Murray Beskine, Public Law Solicitors and Leigh Day and Co.) for the Claimants

Mr Tim Eicke QC and Mr Edward Brown (instructed by The Treasury Solictor) for the Defendant

Mr Jonathan Manning (instructed by the Director of Legal and Democratic Services, Birmingham City Council) for the Interested Party and (instructed by Freshfields Bruckhaus Deringer LLP) for the 2nd Intervener

Ms Helen Mountfield QC (instructed by the Equality and Human Rights Commission) for the 1 st Intervener

Hearing dates: 15–17 May 2013

Lord Justice Laws

INTRODUCTION

1

This is a judicial review challenge, with permission granted by Mitting J on 26 March 2013, directed to changes introduced into the Housing Benefit Regulations 2006 (the 2006 Regulations) by the Housing Benefit (Amendment) Regulations 2012 (the 2012 Regulations). There are ten claimants, all of whom are in receipt of Housing Benefit (HB). Mitting J directed that the cases be set down for hearing by a Divisional Court. He also granted permission to the Equality and Human Rights Commission (EHRC) to intervene by way of oral submissions, and to Shelter Children's Legal Services by way of written submissions. The Birmingham City Council, which is the Housing Benefit Authority in the case of the claimant JD, has appeared as Interested Party.

2

As is well known HB is a means-tested benefit whose purpose is to assist with the cost of renting accommodation. The measures of which complaint is made alter the basis on which maximum HB is calculated in relation to rents in the public sector. They apply to existing as well as new tenancies. They reduce the eligible rent for the purpose of the calculation in cases where the number of bedrooms in the property let exceeds the number permitted by reference to criteria set out in Regulation B13, introduced into the 2006 Regulations by Regulation 5(7) of the 2012 Regulations. The reduction in eligible rent is 14% where there is one excess bedroom and 25% where there are two or more. The Secretary of State estimates that something like £500m will be saved from the HB bill annually. The 2012 Regulations were laid before Parliament on 28 June 2012, made on 3 December 2012, and came into force on 1 April 2013. The affirmative resolution procedure applied. I will set out or describe the relevant legislation below.

3

The challenge is mounted on three grounds. (1) The new measures "are unlawfully discriminatory because they fail to provide for the needs of people in [the position of the claimants]". The claimants are said to "represent a range of individuals who are typical of those who are adversely affected by these changes for reasons relating to disability in a way that violates their Article 14 rights…" (claimants' skeleton, paragraph 2). The reference is to Article 14 of the European Convention on Human Rights (ECHR). (2) The new measures constitute or involve a violation by the Secretary of State of the Public Sector Equality Duty (PSED), imposed by s.149 of the Equality Act 2010. (3) The Secretary of State has unlawfully deployed guidance, in the shape of Circular HB/CTB U2/2013, to prescribe the means of calculating the appropriate maximum HB for certain classes of case. That can only be done by secondary legislation; and in any event the guidance cannot cure the discriminatory effects of the Regulations.

THE LEGISLATION

ARTICLE 14

4

As I shall show the primary ground of judicial review rests on Article 14 of ECHR. I need not set out the material terms of the Human Rights Act 1998, which gives effect in domestic law to the rights guaranteed by the ECHR. 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."

5

Two points on Article 14 are common ground (as they were in Burnip [2012] EWCA Civ 629, [2013] PTSR 11, which I must discuss below). First, disability is within the concluding words of Article 14, "other status": see AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634, [2009] UKHRR 1073, to which I must also return. Secondly, HB falls within the ambit of Article 1 of the First Protocol to the ECHR as a "possession": R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311. I need not set out Article 1. The case turns on the application of Article 14.

THE SOCIAL SECURITY STATUTES

6

The material amendments of the 2006 Regulations effected by the 2012 Regulations were made under powers conferred by the Social Security Contributions and Benefits Act 1992 as amended by s.69 of the Welfare Reform Act 2012. S.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".

S.130A provides for the determination of appropriate maximum housing benefit (AMHB). S.130A(2), (5) and (6) are (in part) in these terms:

"(2) Regulations may prescribe the manner in which the AMHB is to be determined.

(5) The regulations may, for the purpose of determining the AMHB, 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…"

(S.137(2)(j) allows regulations to make provision "for treating any person who is not liable to make payments in respect of a dwelling as if he were so liable".)

7

I should also cite the Child Support, Pensions and Social Security Act 2000. This is the source of the power to allow local authorities to make "discretionary housing payments" (DHPs) which, as I shall show, have an important role in the history which has led to this challenge. S.69(1) 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 EQUALITY ACT 2010

8

As I have indicated s.149 of the Equality Act 2010 introduces the PSED, on which the second ground of challenge is based. The section is cross-headed "Public Sector Equality Duty". It provides in part:

"(1) A public authority must, in the exercise of its functions, have due regard to the need to—

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low."

S.149(7) shows that disability is one of the protected characteristics.

THE REGULATIONS

9

The relevant provisions of the 2006 Regulations as amended by the 2012 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)…

Regulation 12B makes provision for the determination of eligible rent, but does not itself contain the disputed criteria. In summary 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) [that is, for accommodation in the public rented sector] in accordance with regulation B13". Regulation B13 provides in part:

"(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...

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