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

For Convention discrimination in a state-benefit scheme, the applicable standard is whether the difference in treatment is manifestly without reasonable foundation, regardless of whether it is characterised as direct, indirect or Thlimmenos discrimination. The court must scrutinise the justification carefully, while giving considerable constitutional weight to a statutory instrument approved by affirmative parliamentary resolution. A combination of defined exemptions and discretionary housing payments may justify disability-related disadvantage where broader exemptions would be costly, complex, difficult to monitor or insufficiently targeted. The public sector equality duty concerns the decision-making process, not the substantive adequacy of the resulting policy. It requires focused, rigorous and informed consideration of each relevant duty before adoption.

Five disabled claimants challenged reductions in housing benefit for public-sector tenants whose homes contained more bedrooms than the statutory criteria allowed. The reductions were made under the Housing Benefit (Amendment) Regulations 2012, as amended by the 2013 Regulations, and operated alongside discretionary housing payments.

The claimants alleged discrimination contrary to article 14 of the Convention read with article 1 of the First Protocol, and breach of the public sector equality duty under section 149 of the Equality Act 2010. The Divisional Court rejected both challenges on 30 July 2013. The central issues on appeal were whether the scheme discriminated against disabled persons without objective and reasonable justification, and whether the Secretary of State had complied with the statutory equality duty.

1. Appeal dismissed. Regulation B13, considered in isolation, discriminated against disabled persons whose disability created an actual need for additional accommodation. The relevant Convention assessment, however, had to consider the complete scheme, including specified exemptions and discretionary housing payments.
2. For discrimination in the context of state benefits, the applicable justification standard was whether the discrimination was manifestly without reasonable foundation. That standard applied irrespective of whether the discrimination was described as direct, indirect or Thlimmenos discrimination. It remained necessary to scrutinise the Secretary of State’s reasons carefully. Parliamentary approval by affirmative resolution was not a bar to review, but required considerable caution and weight.
3. The Secretary of State had justified the scheme. The broader class of disabled persons requiring extra space was potentially large, difficult to define, vulnerable to changes in disability-related need and costly to administer. Discretionary payments offered flexibility and could be directed locally. The reasoning in Burnip was distinguishable because it concerned a different scheme, a narrower class of claimants and a less well-resourced discretionary-payment scheme.
4. The different treatment of disabled adults and disabled children was also justified. The best interests of children were a primary consideration, and children lacked the independence and control available to adults in securing alternative accommodation or meeting a rent shortfall.
5. The public sector equality duty required focused awareness of each statutory duty and its potential impact, and due regard exercised with substance, rigour and an open mind during the decision-making process. The duty concerned the process rather than the court’s assessment of the policy outcome. The extensive policy development, consultation, impact assessment, Parliamentary scrutiny and continuing review of discretionary payments demonstrated compliance with section 149 of the Equality Act 2010.

• High Court, Queen’s Bench Division, Divisional Court: rejected both the article 14/A1P1 challenge and the public sector equality duty challenge on 30 July 2013.
• Court of Appeal (Civil Division): dismissed the appeal on both issues.