A, R (On the Application Of) v The Secretary of State for Work And Pensions

This is a judicial review of the Housing Benefit (Amendment) Regulations 2012 (SI 3040/2012) and their interaction with Discretionary Housing Payments (DHPs). The claimant, a long-term social tenant whose home had been adapted under a local Sanctuary Scheme after serious domestic violence, argued that the regulations (which reduce housing benefit for "under-occupancy") discriminated against women in breach of Article 14 ECHR read with Article 1 Protocol 1, that the Secretary of State breached the public sector equality duty in s.149 Equality Act 2010, and that the combined scheme posed an unacceptable risk of breaching Article 8 ECHR.

The judge accepted that the measure is capable of indirect sex discrimination and that the PSED applies, but held that the Government had an objectively reasonable justification for implementing a locally administered discretionary DHP fund rather than qualifying Sanctuary Scheme residents for an exemption. The court found that the DHP scheme (as revised and funded) and the accompanying guidance provided an adequate and rational means to address hard cases and to mitigate discriminatory effects; there was no demonstration that the policy was manifestly without reasonable foundation. The Article 8 risk argument failed on the facts.

Background and parties: The claimant ("A") is a long-term tenant of a three-bedroom council house which had been adapted under a local Sanctuary Scheme after she suffered violence and rape by a third party; she lives with her son. The defendant is the Secretary of State for Work and Pensions. A judicial review challenged the 2012 Regulations which apply a reduction in housing benefit where a claimant is deemed to under-occupy social sector accommodation.

Nature of the claim / relief sought: A sought to quash or otherwise challenge the Regulations and their operation as applied to victims of domestic violence living in Sanctuary Scheme properties. Relief sought included declarations that the Regulations were discriminatory in breach of Article 14 ECHR (read with Article 1 Protocol 1) and that the Secretary of State had failed to discharge the Public Sector Equality Duty in s.149 of the Equality Act 2010; A also advanced a revised argument that the combined system created an unacceptable systemic risk of Article 8 breaches.

Procedural posture: Permission for judicial review had been granted. This is a first instance decision in the Administrative Court by HHJ Worster (sitting as a High Court Judge).

Issues framed:

• Whether the Regulations and their implementation amount to indirect discrimination on the protected ground of sex contrary to Article 14 ECHR read with Article 1 Protocol 1, and if so whether that discrimination is justified;
• Whether the Secretary of State breached the Public Sector Equality Duty (s.149 Equality Act 2010) in formulating and implementing the policy;
• Whether the scheme (Regulations plus DHPs) posed an unlawful or unacceptable risk of breaching Article 8 ECHR.

Court’s reasoning (concise): The judge accepted the Regulations are capable of indirect sex discrimination given the disproportionate effect on women among those protected by Sanctuary Schemes. The applicable justification standard was that the measure must not be "manifestly without reasonable foundation". The court reviewed precedent (including MA, Burnip and subsequent authorities), the DHP statutory and guidance framework, parliamentary material and impact assessments. The Secretary of State relied on a policy choice to use a broadly discretionary, locally administered DHP fund that had been increased in size and for which guidance permitted long-term and indefinite awards in appropriate cases. The court found (i) Sanctuary Schemes are relatively small and identifiable but that membership of a small identifiable group is not, of itself, decisive; (ii) DHPs are expressly intended to cover "other hard cases" beyond the exempt groups and the fund and guidance had been revised and increased to allow long-term awards; (iii) there was no reliable evidence of a systemic funding gap or of administrative incapacity to meet genuine hard cases; and (iv) on balance the Secretary of State had had due regard to equality considerations in a manner proportionate to the scale and nature of the policy decision. The Article 8 risk argument was rejected as speculative and not meeting the high threshold for an interference with Article 8.

Outcome: the application for judicial review was refused.

This was a first instance judicial review application and the claim is dismissed. The judge concluded that, although the Regulations are capable of indirect sex discrimination and the Secretary of State was required to have due regard under s.149 Equality Act 2010, the combination of the Regulations and the revised, funded Discretionary Housing Payment scheme provides an objectively reasonable and not manifestly unreasonable means of addressing hard cases (including survivors in Sanctuary Schemes). The Article 8 risk argument was not made out on the evidence.