MA & Ors, R (on the application of) v Secretary of State for Work and Pensions & Ors

Article 14 may apply where a generally applicable social-security rule has markedly disparate effects on disabled persons, even though the disadvantaged class cannot be defined with precise boundaries. The complaint may constitute Thlimmenos discrimination: the State may be required to treat materially different cases differently.

In social-security and economic policy, justification is assessed by the manifestly without reasonable foundation standard. The court must examine whether the discriminatory impact was properly considered, but must respect the decision-maker’s wide margin.

The public sector equality duty concerns the quality of the decision-making process, including rigorous examination and necessary inquiry. It does not require a particular outcome or permit judicial micro-management.

The claimants, recipients of housing benefit, challenged amendments to the Housing Benefit Regulations 2006 made by the Housing Benefit (Amendment) Regulations 2012. The amendments reduced eligible rent for social-sector tenants whose accommodation contained more bedrooms than permitted by regulation B13.

They alleged discrimination contrary to Article 14 of the ECHR, breach of the public sector equality duty under section 149 of the Equality Act 2010, and unlawful use of Circular HB/CTB U2/2013 to implement the decision in Burnip.

The central questions were whether the bedroom criteria unlawfully discriminated against disabled people, whether the Secretary of State had complied with the equality duty, and whether the circular could lawfully secure additional housing benefit for families covered by Burnip.

1. Article 14. The claim was properly characterised principally as an allegation of Thlimmenos discrimination. The principle is consistency: like cases should be treated alike and materially different cases differently. Indirect and Thlimmenos discrimination are closely allied applications of that principle.
2. The inability to define with precision every disabled person who might need additional bedroom space did not remove the case from Article 14. The Secretary of State nevertheless had to consider whether the adverse effects of regulation B13 were disproportionate for disabled people facing particular difficulties.
3. Justification. The applicable test was whether the measure was manifestly without reasonable foundation. The policy pursued economic and social objectives and therefore attracted a wide margin of judgment. The relevant question was not whether the policy as a whole was justified, but whether the different treatment caused by B13, together with the discretionary housing payment scheme, was proportionate.
4. The refusal to exclude a wider class of disabled persons from B13, combined with additional discretionary housing payment funding and guidance, was not manifestly without reasonable foundation. Burnip concerned a discrete category of families whose severely disabled children could not share a bedroom and did not require the same result for the wider and less precisely defined class advanced in these proceedings.
5. Public sector equality duty. Section 149 of the Equality Act 2010 required a rigorous and informed examination of the measure’s equality effects, with further inquiry where necessary. It did not require elimination of adverse effects, a particular result, or consideration of every possible ramification. The Secretary of State had fulfilled the duty, and the court was not entitled to micro-manage the policy process.
6. Circular HB/CTB U2/2013. A departmental circular could not prescribe the means of calculating appropriate maximum housing benefit; that required secondary legislation. The Secretary of State was obliged to make regulations giving effect to Burnip in cases where severely disabled children could not share a bedroom. Pending those regulations, local authorities retained their statutory discretion over discretionary housing payments, although compliance with Burnip was the Secretary of State’s legal responsibility.
7. The challenges to the Regulations were dismissed. No immediate mandatory order was made, on the assumption that replacement regulations would be made speedily.

This was a judicial review heard by a Divisional Court of the High Court. Permission had been granted by Mitting J on 26 March 2013. The judgment records no prior merits decision in the same proceedings.