Rutherford & Ors, R (On the Application Of) v Secretary of State for Work & Pensions

Where a housing-benefit rule produces admitted discrimination under Article 14, the Secretary of State must show that the discriminatory provision has an objective and reasonable justification. A discretionary payment scheme may justify differential treatment for a broad and changing class of claimants, but it does not necessarily justify excluding a small, readily identifiable class for whom an additional bedroom is specifically required. The Court of Appeal was bound by Burnip and distinguished the broader approach in MA. It held that the exclusion of women protected by Sanctuary Schemes, and of disabled children requiring overnight carers, from Regulation B13 was not justified. The public sector equality duty did not require the Equality Impact Assessment to identify that very small Sanctuary Scheme group, but the Secretary of State had failed to give specific primary consideration to the best interests of children in the disabled-children case.

Two judicial review claims concerned Regulation B13 of the Housing Benefit Regulations 2006, inserted by the Housing Benefit (Amendment) Regulations 2012. The regulation reduced Housing Benefit where accommodation exceeded deemed bedroom needs, while discretionary housing payments could meet particular additional needs.

A, a woman exposed to serious violence and living in accommodation adapted under a Sanctuary Scheme, challenged the omission of a safe room from the prescribed categories. Susan Rutherford, Paul Rutherford and W challenged the omission of accommodation for overnight carers of a severely disabled child, although provision existed for overnight carers of certain disabled adults. Stuart-Smith J dismissed SR’s claim in [2014] EWHC 1631 (Admin); HHJ Worster dismissed A’s claim in [2015] EWHC 159 (Admin). The central questions were whether the omissions were unjustified discrimination under Article 14 and whether the Secretary of State had complied with the public sector equality duty.

1. Appeals allowed. The court declared that the appellants had suffered discrimination contrary to Article 14 of the ECHR because the Secretary of State failed to justify the admitted discriminatory effect of Regulation B13.
2. The court was bound by Burnip v Birmingham City Council [2012] EWCA Civ 629 and by R (MA and others) v Secretary of State for Work & Pensions [2014] EWCA Civ 13. MA distinguished Burnip for a broad class of disabled claimants whose needs were variable, difficult to identify or required monitoring. That reasoning did not distinguish A’s narrow class. Affected Sanctuary Scheme households were few, readily recognisable, resistant to abuse and capable of precise definition. The availability of discretionary housing payments therefore did not provide an adequate justification for excluding them from Regulation B13. The fact that A had received the full shortfall did not alter that conclusion.
3. The court reached the same conclusion for accommodation for overnight carers of disabled children. The Secretary of State had to give specific regard to the best interests of children as a primary consideration, as explained in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47. The justification for treating children differently from adults in relation to bedrooms did not explain the opposite treatment of their overnight carers. The evidence also failed to show that discretionary payments would always be available, and the guidance did not expressly address carers of disabled children except where accommodation was specially adapted.
4. A’s public sector equality duty challenge failed. The Secretary of State had addressed gender discrimination, and it was not necessary to identify in the Equality Impact Assessment a very small and specific subgroup within the Sanctuary Schemes. The public sector equality duty did not require consideration of every eventuality.
5. The court declared that the appellants had suffered discrimination contrary to Article 14 on the basis set out in the judgment. Permission to appeal to the Supreme Court was granted in the circumstances described.

• Court of Appeal (Civil Division): appeals from the Administrative Court decisions were allowed. The court declared that the appellants had suffered discrimination contrary to Article 14 of the ECHR.
• High Court (Administrative Court): Stuart-Smith J dismissed SR’s claim in [2014] EWHC 1631 (Admin); HHJ Worster dismissed A’s claim in [2015] EWHC 159 (Admin).