Burnip v Birmingham City Council

The Court of Appeal held that the rules for calculating housing benefit in the private rented sector (in particular regulation 13D of the Housing Benefit Regulations 2006) had a discriminatory effect contrary to Article 14 of the European Convention on Human Rights, read with Article 1 of Protocol 1. The court treated disability as a protected status and accepted that the statutory bedroom/occupier test disadvantaged severely disabled claimants who objectively required additional rooms (for overnight carers or separate rooms for disabled children).

Key legal principles:

• Article 14 applies where a possession (here housing benefit) is within the ambit of Article 1 of Protocol 1.
• The applicable test for justification is the Stec proportionality test: a difference in treatment is unlawful unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between means and aim.
• Article 14 encompasses both indirect discrimination and the Thlimmenos principle that the State may have a positive obligation to treat significantly different situations differently; this can extend to resource allocation subject to careful justification.

The court rejected arguments importing the comparator approach from Malcolm to narrow Article 14 and concluded that discretionary housing payments and other disability-related subsistence benefits did not provide sufficient justification for the discriminatory effect. The appeals were allowed and a declaration was granted.

This case concerned three appeals by severely disabled claimants (or their estates) who challenged the manner in which housing benefit (HB) in the private rented sector was quantified. The claimants needed additional sleeping or living space because of severe disabilities: two required a permanently available overnight carer (leading to a two-bedroom need) and one family required separate bedrooms for disabled children. They received HB calculated by reference to the standard bedroom/occupier rules in regulation 13D of the Housing Benefit Regulations 2006, which resulted in a lower, one-bedroom (or three-bedroom) rate and a significant shortfall against the actual rent.

Procedural posture: Appeals to the Court of Appeal from three Upper Tribunal (Administrative Appeals Chamber) decisions (Judge Howell QC, Judge Jacobs and Judge Turnbull) which had dismissed the claims: [2011] UKUT 23 (AAC), [2011] UKUT 172 (AAC) and [2011] UKUT 198 (AAC).

Relief sought: Declarations and remedies for unlawful discrimination under Article 14 ECHR (read with Article 1 of Protocol 1) in relation to the quantification of housing benefit.

Issues framed:

• Whether the application of the bedroom/occupier rules amounted to discrimination on the ground of disability within Article 14.
• If discrimination was established, whether the difference in treatment was objectively and reasonably justified (Stec proportionality test), including whether alternative benefits or discretionary payments constituted adequate justification.
• What comparator approach, if any, should be applied in Article 14 claims involving disability and benefits.

Court’s reasoning (concise): The court accepted that HB is a possession within Article 1 of Protocol 1 and that disability is a protected status under Article 14. It rejected a narrow comparator approach derived from Malcolm and instead applied Strasbourg authorities (including Stec and Thlimmenos) to recognise both indirect discrimination and the positive-obligation aspect where situations are significantly different. The court considered the broader benefits context (incapacity benefit, disability living allowance, income-related benefit rules and discretionary housing payments) and concluded those did not justify the differential treatment because subsistence benefits were not intended to meet housing shortfalls and discretionary payments were uncertain, capped and unreliable. International instruments, notably the Convention on the Rights of Persons with Disabilities, were treated as relevant interpretive aids. Applying the Stec proportionality assessment, the Court concluded the Secretary of State had not shown objective and reasonable justification for maintaining the single-bedroom rule in circumstances of severe disability and allowed the appeals, granting declaratory relief. The court noted that the Regulations had been amended from 1 April 2011 in relation to overnight care but made a declaration appropriate to all three appeals.

Appeal allowed. The Court of Appeal held that the application of the bedroom/occupier rules in regulation 13D of the Housing Benefit Regulations 2006 had a discriminatory effect in breach of Article 14 read with Article 1 of Protocol 1. The court applied the Stec proportionality test and the Thlimmenos positive-obligation principle, rejected a restrictive comparator approach derived from Malcolm, and concluded that available justification (including discretionary housing payments and other disability-related benefits) was insufficient. A declaration of incompatibility with Article 14 was granted; the Regulations had in any event been amended from 1 April 2011 in part of the class of cases.

Appeals from the Upper Tribunal (Administrative Appeals Chamber) decisions: Judge Howell QC [2011] UKUT 23 (AAC) (Burnip), Judge Jacobs [2011] UKUT 172 (AAC) (Trengove) and Judge Turnbull [2011] UKUT 198 (AAC) (Gorry). The Court of Appeal allowed the appeals and granted declaratory relief.