R Susan Rutherford, Paul Rutherford and Warren Todd (A Child, by his Litigation Friend Susan Rutherford) v Secretary of State for Work & Pensions

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Thomas of Cwmgiedd
Judgment Date27 January 2016
Neutral Citation[2016] EWCA Civ 29
Docket NumberCase Nos: C1/2014/2539 & C1/2015/0502
Date27 January 2016

[2016] EWCA Civ 29



Royal Courts of Justice

Strand, London, WC2A 2LL


The Lord Chief Justice of England and Wales

Lord Justice Tomlinson


Lord Justice Vos

Case Nos: C1/2014/2539 & C1/2015/0502

The Queen on the Application of Susan Rutherford, Paul Rutherford and Warren Todd (a child, by his litigation friend Susan Rutherford)
Secretary of State for Work & Pensions
The Queen on the Application of A
Secretary of State for Work & Pensions
Equality and Human Rights Commission

Karon Monaghan QC, Caoilfhionn Gallagher and Katie O'Byrne (instructed by Hopkin Murray Beskine) for A

Richard Drabble QC and Tom Royston (instructed by Child Poverty Action Group) for the Rutherford appellants ( SR, PR and W)

Tim Eicke QC, Gemma White and Edward Brown (instructed by the Treasury Solicitor) for the Secretary of State

Helen Mountfield QC and Raj Desai (instructed by the Equality and Human Rights Commission) for the Intervener

Hearing dates: 4 and 5 November 2015

Lord Thomas of Cwmgiedd, CJ:


This is the judgment of the court to which each of its members has contributed.

The nature of the appeals


In these two appeals (1) the appellant A (a female victim of serious violence living in housing protected under the Sanctuary Schemes) and (2) the appellants Susan Rutherford (SR), Paul Rutherford (PR) (the grandparents of Warren (W), a severely disabled child) and W contend that the removal by the Secretary of State for Work and Pensions under Regulation B13 of the Housing Benefit Regulations 2006 (the 2006 Regulations) of part of their means-tested Housing Benefit in respect of their public sector housing was unlawful.


Regulation B13 was introduced into the 2006 Regulations by the Housing Benefit (Amendment) Regulations 2012 (the 2012 Regulations) which came into force on 1 April 2013. The effect of the 2012 Regulations was to reduce Housing Benefit if the accommodation in which a person lived exceeded the number of bedrooms deemed to be required as defined by a formula. The formula was varied by Regulation B13(5)-(7) which provided that an additional bedroom would be allowed for defined classes of persons. It was contended by each of the appellants that they should be part of that defined class.


As part and parcel of the scheme which reduced Housing Benefit in this way, provision was made for Discretionary Housing Payments (DHPs) to be made available to those who, although not falling within the defined class of persons allowed an additional bedroom under Regulation B13, might have needs which should reasonably be met by DHP. The benefits payable as DHPs are, as the name suggests, discretionary and are administered by the relevant local authority.


The appellants do not challenge either the validity of the overall scheme comprising the 2012 Regulations and the use of DHP or the 2012 Regulations themselves, but contend that Regulation B13 is unlawful insofar as it does not include them within a defined class of persons whose position has to be taken into account for the purposes of the reduction in Housing Benefit. They contend that their omission is unlawful discrimination under Article 14 of the European Convention on Human Rights (ECHR). A also contends that it is unlawful by reason of a breach by the Secretary of State of his public sector equality duty under s.149 of the Equality Act 2010. It should be noted at the outset that both these cases have proceeded on the accepted basis that Regulation B13 constitutes prima facie discrimination on grounds of sex (A) and disability (SR). The primary question for this court and the court below was, therefore, whether the Secretary of State was able to show that there was objective and reasonable justification for that discrimination which was not manifestly without reasonable foundation.


These issues in relation to the overall scheme and Regulation B13 were considered by this court in R (MA and others) v the Secretary of State for Work & Pensions [2014] EWCA Civ 13, [2014] PTSR 584 (Lord Dyson MR and Longmore and Ryder LJJ), on appeal from the Divisional Court ( [2013] EWHC 2213 (QB), Laws LJ and Cranston J) in relation to the position of 5 claimants who advanced similar claims. That decision was given on 21 February 2014. Permission to appeal to the Supreme Court in respect of that judgment was then given. The appeal is due to be heard in March 2016.


In the long period that has elapsed since the judgment of the Court of Appeal in MA whilst the appeal to the Supreme Court is pending,

(i) the claim of SR was heard by Stuart-Smith J on 14 May 2014 and dismissed by him in a judgment dated 30 May 2014 ( [2014] EWHC 1631 (Admin));

(ii) the claim of A was heard by HHJ Worster and dismissed in a judgment dated 29 January 2015 ( [2015] EWHC 159 (Admin)).

Although their appeals were initially stayed, Underhill LJ and Sir Stanley Burnton gave each permission to pursue the appeals, so that the particular position of these appellants could be considered by the Supreme Court, if it thought fit, at the hearing of the appeal in MA: see their judgment dated 21 July 2015 [2015] EWCA Civ 772.


We are bound by the decision and reasoning in MA as regards the scheme and its analysis of another decision of this court in Burnip v Birmingham City Council [2012] EWCA Civ 629, [2013] PTSR 117 to which we refer at paragraphs 32 and following below. No useful purpose would have been achieved by our hearing argument on whether the principles set out in MA were correctly decided or whether its analysis of Burnip was correct. That applies also to arguments in relation to the use of further international instruments beyond those referred to in MA, the general approach to discrimination, and the appropriate standard of review for justification in the light of the decision of the Supreme Court in Re Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [2015] UKSC 3, [2015] AC 1016. All these questions will be in issue when the Supreme Court hears the appeals in MA. We, therefore, made it clear at the outset of the hearing that we would confine the principal argument before us to the question of whether, applying the principles decided in MA, Regulation B13 was unlawful as regards the appellants. In these circumstances, whilst we are grateful for the wider skeleton arguments submitted, particularly those from the Equality and Human Rights Commission, we have considered the main issue before the court on the basis of the approach taken in MA. We are content to leave all more fundamental arguments to be debated in the forthcoming Supreme Court hearing.


Before turning to set out the relevant principles which we derive from MA and which are applicable to the present appeals, it is necessary very briefly to summarise the facts of each case.

The facts

The position of A


A has lived in a three bedroom house rented from the local council since 1989. In 1993–4 she had a brief, casual relationship with a man, X, who was subsequently convicted of attempted murder; he has been exceptionally violent to her. Whilst in prison he started to harass her and in 2002 he sought her out. A child was conceived as a result of his rape of her and was born in 2003. The child lives with her. The courts have refused contact between the son and X.


In 2012, X contacted A again and made threats of violence to her. The police and other agencies took the threats seriously and under one of the schemes which are known as the "Sanctuary Schemes" her property was adapted. She is protected under that scheme with the support of the police. In consequence of the violence of X and the continued threats from him, she suffers from PTSD and has suicidal ideation.


Sanctuary Schemes, which have been operating since 2006, provide for the adaptation of a house or flat to make it secure and for on-going security monitoring to enable people who have been subjected to violence, including what is often referred to a "domestic violence", to remain in their own home. There was powerful evidence before the judge from Polly Neate, the Chief Executive of Women's Aid, about the benefits and importance of Sanctuary Schemes.


The other evidence before the judge was that as at 30 September 2013, there were over 5,800 households in such schemes of which a small number (about 280) were affected by Regulation B13. Other evidence showed that the number of those within the Sanctuary Schemes was increasing. Further evidence showed that the overwhelming majority of those in these schemes were women, with a small proportion being single parents.


A has been in receipt of Housing Benefit which, prior to the 2012 Regulations, covered her rent. As a consequence of the 2012 Regulations she is deemed to be under-occupying the house in which she and her son live as there is a third bedroom; her Housing Benefit was to have been cut by 14%. She was paid DHPs to cover the shortfall, but her Housing Benefit was not in fact reduced due to transitional provisions. From the time it was appreciated that she had been in receipt of the full Housing Benefit and DHPs, DHPs were stopped and when the payment under the transitional provisions ceased, she was not paid DHPs until the overpayment had been recouped.


It was not clear on the evidence before the judge how many of those affected by Regulation B13 were in receipt of DHPs, but in the judge's view this was not a significant matter for...

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