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

Disability discrimination arising from housing benefit bedroom criteria must be assessed within the whole scheme, including discretionary housing payments. In state benefits cases, justification is assessed by the manifestly without reasonable foundation standard. That standard applies to policy details integral to the wider scheme, however the discrimination is classified. Careful scrutiny remains necessary, particularly where disability is involved. Parliamentary approval by affirmative resolution carries considerable weight.

Administrative complexity, changing needs, increased discretionary funding and local accountability can justify addressing some disability-related accommodation needs through discretionary payments. Children’s best interests can justify greater protection for disabled children than disabled adults. The public sector equality duty requires focused, informed consideration of the statutory equality needs during decision-making. It concerns the process, while the weight assigned to properly considered equality implications remains for the decision-maker.

Five claimants pursued appeals concerning reductions in housing benefit for social housing households deemed to have excess bedrooms. Their households included disabled people whose circumstances involved additional accommodation needs, adapted housing or difficulties in moving. The Secretary of State for Work and Pensions had introduced bedroom criteria through amendments to the Housing Benefit Regulations 2006. Certain groups received additional bedroom allowances. Other needs were addressed through discretionary housing payments administered by local authorities.

The claimants challenged the scheme as unjustified disability discrimination under article 14 of the European Convention on Human Rights, read with article 1 of the First Protocol. They also alleged breach of the public sector equality duty under section 149 of the Equality Act 2010. The Equality and Human Rights Commission intervened in support. The Divisional Court rejected both challenges on 30 July 2013. The appeals concerned whether the discrimination was justified and whether the policy-making process satisfied the equality duty.

1. The appeals were dismissed unanimously on both grounds. The Master of the Rolls gave the principal judgment. Longmore LJ agreed that the discrimination was justified and gave additional reasons for rejecting the equality duty challenge. Ryder LJ agreed with both judgments.

2. The bedroom criteria discriminated against disabled people whose disabilities created accommodation needs exceeding those attributed to comparable non-disabled households. The inquiry nevertheless had to consider the whole scheme, including additional bedroom categories and discretionary housing payments. The discrimination was appropriately characterised as indirect or Thlimmenos discrimination. Distinguishing between those categories was unnecessary because justification in a benefits case depended on substance rather than classification (paras 39–48).

3. The applicable standard was whether the discriminatory policy was manifestly without reasonable foundation. Burnip v Birmingham City Council [2012] EWCA Civ 629 and Humphreys v Revenue and Customs Commissioners [2012] UKSC 18 supported that approach. Decisions implementing a wider social policy remained policy choices even when they concerned its detailed operation. Careful scrutiny was required, particularly given the claimants’ vulnerability and the connection between the disadvantage and disability. Some imperfections or an unconvincing justification were insufficient: the court had to identify a serious flaw producing an unreasonable discriminatory effect (paras 49–56, 60, 80).

4. Parliamentary approval by affirmative resolution required considerable caution, especially where Parliament had considered the principal objections. The Secretary of State had objectively and reasonably justified using discretionary payments for some disability-related needs. Broader statutory exemptions would involve difficulties of identification, complexity, monitoring and cost. Discretionary payments offered flexibility and local financial accountability. The fund had increased, guidance had changed and its adequacy would remain under review. Those circumstances distinguished the justification reasoning in Burnip v Birmingham City Council, which concerned narrower groups and a different funding and policy context (paras 57, 64, 71–75, 81–82).

5. The best interests of children were a primary consideration. They justified greater protection for disabled children unable to share a bedroom than for disabled adults with materially similar needs. The different treatment of couples in Mrs Carmichael’s position was therefore objectively and reasonably justified (paras 76–79).

6. Section 149 of the Equality Act 2010 required focused awareness of each statutory duty and its potential impact. Conceptually distinct duties could require the same practical consideration in particular circumstances. The duty concerned the decision-making process, rather than the adequacy of its outcome. Consultation and detailed consideration of disability-related space needs, exemptions, discretionary assistance and funding demonstrated due regard. Both challenges had consequently been correctly rejected (paras 83–93, 94–100).

• Court of Appeal (Civil Division): In [2014] EWCA Civ 13 , dismissed the appeals unanimously and upheld the rejection of both challenges.
• High Court, Queen’s Bench Division, Divisional Court: Laws LJ and Cranston J rejected the discrimination and public sector equality duty challenges in judgments handed down on 30 July 2013. No citation for those judgments is stated.