R (on the application of Carmichael and Rourke) v Secretary of State for Work and Pensions

Where discrimination arises within the design of a welfare-benefit scheme, the justification question is whether the policy choice is manifestly without reasonable foundation. The court must nevertheless scrutinise the reasons carefully.

A linked discretionary-payment scheme may rationally address diverse needs requiring individual evaluation. It cannot justify differential treatment where disability creates a transparent need for an additional bedroom and the regulation recognises an equivalent need for another class but excludes the claimant without sensible reason.

The public sector equality duty requires focused awareness of the statutory equality needs and due regard to them. It concerns the decision-making process rather than whether the outcome itself is justifiable.

These conjoined judicial review appeals concerned Regulation B13 of the Housing Benefit Regulations 2006, which reduced housing benefit where social-sector accommodation was deemed under-occupied. The claimants included adults with disabilities, households containing disabled children, and a woman living in sanctuary-scheme accommodation because of severe domestic violence.

The disability claims in the MA proceedings were dismissed by the Divisional Court, [2013] EWHC 2213 (QB); [2013] PTSR 1521, and the Court of Appeal, [2014] EWCA Civ 13; [2014] PTSR 584. In separate proceedings the Court of Appeal, [2016] EWCA Civ 29, upheld the article 14 claims of A and the Rutherford family, although A's public sector equality duty claim failed.

The central questions were whether the benefit distinctions were justified under article 14, whether discretionary housing payments adequately addressed individual needs, and whether the Secretary of State had complied with section 149 of the Equality Act 2010.

1. Disposition. The Court unanimously allowed Mrs Carmichael's appeal and dismissed the Secretary of State's appeal concerning the Rutherford family. It dismissed the other MA claimants' appeals. By a majority of five to two, it allowed the Secretary of State's appeal concerning A and dismissed A's cross-appeal under the Equality Act 2010.

2. Lord Toulson, with whom Lord Neuberger, Lord Mance, Lord Sumption and Lord Hughes agreed, held that the applicable justification standard for discrimination within a welfare-benefit scheme was whether the relevant policy choice was manifestly without reasonable foundation. Welfare design involved economic and social policy entrusted primarily to national authorities. The distinction between high-level policy and implementing detail would create undesirable uncertainty. The deferential standard nevertheless required careful scrutiny of the justification advanced.

3. The Secretary of State could reasonably use discretionary housing payments rather than a blanket regulatory exemption to address the varied effects of disability. Many disability-related and social needs depended on personal circumstances, adapted accommodation, support networks and available alternatives. Individual evaluation under that scheme was therefore permissible for Daly, Drage, JD and Rourke.

4. An exception arose where disability produced a transparent medical need for an additional bedroom. Burnip v Birmingham City Council [2012] EWCA Civ 629 had correctly identified such needs in the cases of an overnight adult carer and disabled children unable to share. Mrs Carmichael was directly comparable to the latter because she could not share with her husband. The Rutherford family was directly comparable to the former because their disabled grandson required overnight care. Regulation B13 recognised the equivalent needs of children and adults in opposite contexts but excluded these households. No reasonable justification existed for either distinction, and discretionary payments did not cure it.

5. A's sanctuary-scheme claim was different. Her compelling need was to remain in secure accommodation, not to occupy an additional bedroom. Needs unrelated to property size could rationally be assessed individually through discretionary payments. The state's protective duty did not prescribe the particular means of protection, and A had not shown that Regulation B13 deprived or was likely to deprive her of a safe haven.

6. The public sector equality duty required focused awareness of the duties in section 149 and their potential effect on protected groups. It was a duty of due process, not a requirement that the resulting policy be substantively justified. The Secretary of State had sufficiently considered disability and gender impacts. The failure expressly to identify the very small sanctuary-scheme group did not establish breach.

7. Lady Hale, with whom Lord Carnwath agreed, dissented concerning A. She considered that gender-based violence engaged a positive protective obligation, that A should not be treated like an ordinary under-occupying tenant, and that discretionary payments were too uncertain to justify the discrimination. She would also have found non-compliance with the public sector equality duty.

• United Kingdom Supreme Court: In R (Carmichael and Rourke) v Secretary of State for Work and Pensions [2016] UKSC 58, the Court allowed Mrs Carmichael's appeal, dismissed the other MA appeals, dismissed the Secretary of State's Rutherford appeal, allowed his A appeal, and dismissed A's cross-appeal.
• Court of Appeal: In the MA proceedings, [2014] EWCA Civ 13; [2014] PTSR 584, the court dismissed the remaining disability claims.
• Divisional Court: In [2013] EWHC 2213 (QB); [2013] PTSR 1521, the court dismissed the MA claimants' challenges.
• Court of Appeal: In the joined A and Rutherford proceedings, [2016] EWCA Civ 29, the court allowed both article 14 claims but rejected A's claim under the Equality Act 2010.
• First instance: The claims brought by A and the Rutherford family were dismissed in separate judgments whose citations were not stated.