Burnip v Birmingham City Council & Anor

Article 14 of the ECHR prohibits housing-benefit rules from imposing a substantial disadvantage on severely disabled claimants without objective and reasonable justification. It covers both indirectly discriminatory effects and an unjustified failure to treat materially different situations differently.

A general bedroom rule may pursue legitimate social-policy aims, but it was disproportionate to deny an additional bedroom to a narrowly defined group whose disability made it objectively necessary. Disability-related subsistence benefits could not be treated as available for rent. Discretionary housing payments, being capped, uncertain and temporary, did not provide an adequate answer.

Three severely disabled private-sector tenants or household members challenged the application of the local housing allowance bedroom criteria in the Housing Benefit Regulations 2006. Mr Burnip and Ms Trengove needed a second bedroom for overnight carers. Mr Gorry’s disabled daughters could not appropriately share a bedroom, although non-disabled girls of their ages would ordinarily be expected to do so.

The Upper Tribunal rejected the claims: Judge Howell QC in [2011] UKUT 23 (AAC), followed by Judge Jacobs in [2011] UKUT 172 (AAC) and Judge Turnbull in [2011] UKUT 198 (AAC). The common issue was whether the bedroom criteria unlawfully discriminated on grounds of disability contrary to Article 14, read with Article 1 of the First Protocol.

1. The appeals were allowed. Housing benefit was a possession within Article 1 of the First Protocol. Disability was an “other status” for Article 14 purposes. The bedroom criteria therefore fell within Article 14.

2. Per Maurice Kay LJ, with whom Hooper LJ agreed, the appellants established prima facie discrimination. Article 14 covers a neutral measure which substantially disadvantages a protected group, and also an unjustified failure to treat materially different situations differently. The restrictive comparator analysis adopted for a domestic disability-discrimination provision in Lewisham Borough Council v Malcolm [2008] 1 AC 1399 was not appropriate. Statistical evidence was not a prerequisite where the severe disadvantage was clear.

3. The relevant question was whether the discriminatory difference in treatment, rather than the housing-benefit scheme as a whole, had objective and reasonable justification. Henderson J held that the ordinary proportionality standard applied. Although a wide margin is normally afforded for social and economic policy, the criterion was not a fair or proportionate response in these cases.

4. Disability-related incapacity, living and income-support benefits were directed to subsistence. They could not notionally be used to meet a housing shortfall. Discretionary housing payments did not cure the inequality because they were discretionary, capped, unpredictable in duration and insufficiently assured for long-term housing commitments. The affected group was small, readily identifiable, unlikely to require repeated reassessment, and could otherwise face more expensive residential care.

5. The court made a declaration of incompatibility in effect, leaving the Secretary of State to rectify the discrimination. That was particularly appropriate because the Secretary of State made the Regulations while local authorities administered housing benefit. The later regulatory amendment for overnight carers did not resolve Mr Gorry’s position or the prior periods in issue.

• Court of Appeal (Civil Division): Allowed the three appeals and declared that the relevant bedroom criteria had unlawfully discriminated contrary to Article 14.

• Upper Tribunal (Administrative Appeals Chamber): Judge Howell QC rejected Mr Burnip’s claim in [2011] UKUT 23 (AAC). Judge Jacobs followed that decision in Ms Trengove’s case in [2011] UKUT 172 (AAC), as did Judge Turnbull in Mr Gorry’s case in [2011] UKUT 198 (AAC).