R (Rutherford) v Secretary of State for Work and Pensions

The appeals concerned whether Regulation B13 of the Housing Benefit Regulations 2006, as introduced by the Housing Benefit (Amendment) Regulations 2012, unlawfully discriminated against certain claimants by failing to allow an additional bedroom for specified classes of persons. The key legal tests were whether Regulation B13 gave rise to discrimination contrary to Article 14 of the European Convention on Human Rights and, separately, whether the Secretary of State complied with the public sector equality duty in s.149 of the Equality Act 2010. The court applied the "manifestly without reasonable foundation" standard of review for justification and considered Regulation B13 in the context of the wider scheme, including the availability of Discretionary Housing Payments (DHPs).

Applying the precedent of Burnip v Birmingham City Council and the Court of Appeal decision in R (MA and others) v Secretary of State for Work & Pensions, the court held that victims living under local "Sanctuary Schemes" (A) and families requiring overnight carers for disabled children (SR and W) constituted small, readily identifiable classes for whom exclusion from Regulation B13 was not justified. The Secretary of State failed to show objective and reasonable justification for the admitted discrimination in those specific situations. The public sector equality duty did not, however, fail in respect of the Sanctuary Scheme appellants (A), but did contribute to the conclusion in the disabled-children case that discrimination was unjustified.

This is an appeal from two judicial-review decisions raising challenges to Regulation B13 of the Housing Benefit Regulations 2006 as amended in 2012. The claimants sought declarations that the reduction of housing benefit by reference to a bedroom entitlement formula (commonly described as the removal of the spare-room subsidy or "bedroom tax") was unlawfully discriminatory because particular classes of persons who required an additional bedroom were excluded from the defined classes in Regulation B13.

• Nature of the claims: applicants sought relief under Article 14 ECHR for discriminatory treatment and, in A's case, also alleged breach of the public sector equality duty (s.149 Equality Act 2010). The scheme as a whole, including the availability of Discretionary Housing Payments (DHPs), was relied on by the Secretary of State as justification.
• Facts: A was a female victim of serious violence living in accommodation protected by a Sanctuary Scheme, with adaptations including a secure extra room; the Rutherfords cared for W, a severely disabled child who required round-the-clock care and overnight carers who needed a bedroom in the home.
• Procedural history: the cases came to this court after decisions below (Stuart-Smith J [2014] EWHC 1631 (Admin); HHJ Worster [2015] EWHC 159 (Admin)). The court treated as binding aspects of R (MA and others) v Secretary of State for Work & Pensions [2014] EWCA Civ 13 but also relied on Burnip v Birmingham City Council [2012] EWCA Civ 629.
• Issues framed: (i) whether Regulation B13, viewed alone, constituted discrimination contrary to Article 14 by excluding the claimants' classes; (ii) whether such discrimination could be objectively and reasonably justified under the "manifestly without reasonable foundation" test; and (iii) in A's case whether the Secretary of State complied with the public sector equality duty in s.149 Equality Act 2010.
• Court's reasoning and outcome: the court accepted that Regulation B13 admitted prima facie discrimination and that the proper standard of review for justification was stringent. The court considered the regulation together with the DHP scheme but concluded that, for the narrow, readily identifiable classes at issue (victims in Sanctuary Schemes and parents of disabled children requiring overnight carers), the Secretary of State had not demonstrated an objective and reasonable justification for their exclusion from Regulation B13. The court followed Burnip for such small, easily recognised classes and considered the broader reasoning in MA distinguishable. On the public sector equality duty, the court held there had not been a breach in respect of the Sanctuary Scheme claim but concluded that, taken with the best-interests-of-the-child considerations, the differential treatment of carers for disabled children was unjustified.

The court declared that the appellants had suffered discrimination contrary to Article 14 ECHR on the basis set out in its judgment and granted permission to appeal to the Supreme Court on certain points.

This is an appeal allowed. The Court of Appeal held that, as applied to (a) victims living in accommodation under Sanctuary Schemes who require an adapted secure room and (b) families with severely disabled children who require overnight carers provided with a bedroom, the admitted discrimination in Regulation B13 was not objectively and reasonably justified and was therefore unlawful under Article 14 ECHR. The court considered the regulation in the context of the wider scheme including Discretionary Housing Payments but, applying Burnip and the principles in MA, concluded that those narrow, readily identifiable classes should have been treated within Regulation B13 rather than only by discretionary top-up payments; the public sector equality duty did not fail for the Sanctuary Scheme appellant but reinforced the conclusion in the disabled-children case that justification was lacking.

The claims came from judicial-review decisions in the High Court: Stuart-Smith J dismissed SR's claim ([2014] EWHC 1631 (Admin)) and HHJ Worster dismissed A's claim ([2015] EWHC 159 (Admin)). The Court of Appeal considered these appeals and treated as binding aspects of the earlier Court of Appeal decision in R (MA and others) v Secretary of State for Work & Pensions [2014] EWCA Civ 13. Permission to pursue these appeals was given by Underhill LJ and Sir Stanley Burnton ([2015] EWCA Civ 772). The Court of Appeal allowed the present appeals and granted permission to appeal to the Supreme Court on specified issues.