Rutherford & Ors v Secretary of State for Work And Pensions (Rev 1)

In assessing disability discrimination in a housing-benefit scheme, the scheme must be considered as a whole, including any discretionary housing-payment mechanism. A provision which causes prima facie discriminatory treatment in isolation will not necessarily be unlawful if the wider scheme removes substantial financial detriment and provides adequate assurance of continuing support. The stringent manifestly without reasonable foundation test applies, particularly where the scheme has received affirmative parliamentary approval and concerns economic and social policy. Discretionary payments may provide adequate justification where they are practically available, properly guided, sufficiently funded and likely to meet the claimant’s continuing need. The court must scrutinise the complete practical picture, while giving appropriate weight to Parliament’s policy choices.

The claimants challenged the lawfulness of the Housing Benefit (Amendment) Regulations 2012. Regulation B13 reduced housing benefit for under-occupied social housing and did not provide an additional bedroom where a disabled child required overnight care from a non-resident carer. The claimants’ home had been substantially adapted for the third claimant, a severely disabled child, and overnight carers required a bedroom.

The claimants alleged discrimination contrary to Article 14 of the European Convention on Human Rights taken with A1P1. They sought an order requiring amendment of the regulations and a declaration concerning Regulation B13(5). The Secretary of State relied on the housing-benefit scheme as a whole, including discretionary housing payments. The central issue was whether the omission of an additional bedroom for a disabled child was manifestly without reasonable foundation.

1. Permission and outcome. Permission was granted, but the application was dismissed. The court held that the claimants had not established unlawful discrimination.
2. Applicable approach. The court followed the two-stage approach: first, identify whether the regulation creates prima facie discrimination; secondly, determine whether that discrimination is justified. The scheme must be assessed as a whole, rather than by examining Regulation B13 in isolation. A theoretical discriminatory effect is insufficient where the scheme produces no substantial detriment in practice: [2014] EWHC 1631 (Admin) [37].
3. Justification and parliamentary choice. The applicable test was whether the scheme was manifestly without reasonable foundation. The Secretary of State had a wide margin of appreciation in economic and social policy. The court was required to scrutinise the complete practical picture, while exercising caution before invalidating a statutory instrument approved by affirmative resolution of both Houses of Parliament: [2014] EWHC 1631 (Admin) [31], [35], [40].
4. Discretionary housing payments. Burnip and others v Birmingham City Council and Others [2012] EWCA Civ 629 and R (MA and others) v Secretary of State for Work and Pensions and Others [2014] EWCA Civ 13 were reconciled. A scheme using discretionary payments may be lawful, but only where it provides suitable assurance of present and future payment in appropriate circumstances. On the evidence, the payments had covered the shortfall, the local authority had guidance requiring relevant circumstances to be considered, the fund was adequate, and there was no evidence of future refusal. The claimants therefore suffered no substantial financial detriment: [2014] EWHC 1631 (Admin) [47]-[54].
5. Rational distinction. The distinction between adults requiring overnight care and disabled children was rationally justified by the Government’s assessment of parental responsibility, independent living, administrative complexity and the flexibility of discretionary payments. Although some evidence, including the assumption about respite carers, could be criticised, it did not reveal a serious flaw producing an unreasonable discriminatory effect: [2014] EWHC 1631 (Admin) [55]-[59].
6. Final conclusion. The need to apply for discretionary housing payments was not a substantial detriment in the circumstances. The challenge to Regulation B13 was rejected and the application refused: [2014] EWHC 1631 (Admin) [61]-[64].

The judgment is a first-instance decision on a rolled-up judicial review hearing. Proceedings were issued on 24 September 2013. No lower-court decision is stated.