The “bedroom tax” judgment in the High Court is a severe blow to disabled tenants in council and housing association accommodation. But it is more. It is an attempt to redraft and pull back from the UK courts’ willingness to accept challenges to the Government via the European Convention on Human Rights.
In Lord Justice Laws the Government seems to have an anti-Strasbourg champion, ready to return to an age when judges would offer “due deference” to the governmental authorities and intervene in executive or administrative decisions only if they were “manifestly unreasonable”.
Sadly, Laws seems not to consider it “manifestly unreasonable” to impose what amounts to a fine on disabled tenants who need more space in their homes than the average person.
Laws takes a strong constitutional stance against judicial intervention in government decisions in his rejection of claims that the bedroom tax is discriminatory in R (MA and Others) v Secretary of State for Work and Pensions (30 July 2013).
His judgment looks like a remarkable attempt to rein in the courts when considering decisions made in the political sphere. He states:
“The cause of constitutional rights is not best served by an ambitious expansion of judicial territory for the courts are not the proper arbiters of public controversy.”
Judicial restraint requires that judges limit themselves to considering the process of decision-making, not the outcome of the decision itself – otherwise Laws fears judges could end up reviewing the substantive merits of almost all public decision-making – whether decisions are morally right or wrong rather than simply whether they were properly arrived at.
The decision under review was a change brought in by the Housing Benefit (Amendment) Regulations 2012 in which new regulations A13 and B13 in the Housing Benefit regulations 2006 in effect reduced housing benefit for council and housing association tenants with spare bedrooms. The justification for the “bedroom tax” or “under-occupation charge” was to encourage people under-occupying council/HA homes to move out and free up accommodation for larger families.
Laws’ argument amounts to saying that this was a decision by a legitimately elected Government about a matter of public concern and that the solution to the problem was not unreasonable, even in its effects on disabled people. Courts should not intervene in such circumstances.
He draws on an earlier case at the European Court of Human Rights in Strasbourg, Stec v United Kingdom (2006) 43 EHRR 47, to suggest there should be a high bar before judges will intervene against government decisions in cases such as these – particularly given his view that the bedroom tax was indirectly rather than directly discriminatory.
The basic ECHR rights which the 10 disabled claimants drew on were Article 14 (non-discrimination) and Article 1 Protocol 1 (right to peaceful enjoyment of property). But most ECHR rights are qualified: they come with opt-outs for purposes in the public interest. The argument runs thus: state discrimination under the ECHR may be justified here for example, under Protocol 1 Article 1 “to control the use of property in accordance with the general interest”. In general, said Laws, such an opt-out would have to be for “weighty” reasons. But for disabled people and the bedroom tax the standard of judgment is lower – the reasons allowing the Government to act in the way it wants need not be so “weighty”. Quoting Stec v UK:
“Weighty reasons may well be needed in a case of positive discrimination, but there is no good reason to impose a similarly high standard in cases of indirect discrimination, or cases where the discrimination lies in the failure to make an exception from a policy or criterion of general application, especially where questions of social policy are in issue.”
Indirect discrimination, in ECHR terms, is defined in Thlimmenos v Greece (2000):
“The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”
Lord Justice Laws insisted that the claim being made was prima facie indirect Thlimmenos discrimination (and he, in effect, accepts such discrimination has occurred). The bedroom tax was not a direct attack on disabled people but a general rule that they might not be able to conform to as easily as other people – for example (one assumes) by moving out to a smaller property or getting a better job to make up the shortfall – and no further rule was created to deal with this problem.
So, in Laws’ view, what was being claimed was that “it is harder for the claimants to comply with the Regulation B13 criteria than it is for their non-disabled peers”. It follows that “the contention [of the claimants] is that the claimants should be treated differently – more favourably – than others who are covered by the rule complained of.” (Para 48)
Given it is not direct discrimination the bar before a judicial intervention should be higher. And in this case judges should not intervene.
‘Much of our modern law … makes increasing demands on public decision-makers in the name of liberal values. The law has been enriched accordingly. But it is not generally for the courts to resolve the controversies which this insistence involves. That is for elected government. The cause of constitutional rights is not best served by an ambitious expansion of judicial territory, for the courts are not the proper arbiters of political controversy’ Laws LJ
Laws accepts that “given the differential effects of the [Housing Benefit policy], the law required the Secretary of State to fashion the policy so that its adverse impact was not disproportionate with respect to disabled persons … to whom it presented particular difficulties.” (Para 54) But he decided “the refusal to exclude (some) disabled persons from the regime of B13” was not disproportionate.
Some discrimination cases might require robust judicial intervention such as discrimination on grounds of race, sexual orientation or marital status. “This case is not within those categories. The wide margin [of appreciation ie ministerial discretion] remains; in context, it is a function of democratic rule.” (Para 61)
He notes: “The engine of the HB [new Housing Benefit rules] is not only the saving of public funds, though where (as here) that is proposed to be done in the context of a major State benefit, it might be thought high policy enough. But there is also a strategic aspiration to shift the place of social security support in society.” (Para 58) He says this strategic aim certainly places it in the realm of “high policy” rather than just run of the mill administrative activity – and judges should be wary of intervening in “high policy” with its democratic underpinnings.
Laws accepts this does not absolve a minister from considering the impact of the new Housing Benefit rules on disabled people, not least under the Public Sector Equality Duty in Section 149 of the Equality Act 2010. But here again courts must be wary of intervention: “The courts will not administer s.149 so as in effect to steer the outcome which ought in any particular case to be arrived at. The evaluation of the impact on equality considerations of a particular decision clearly remains the responsibility of the primary decision-maker” – unless “the assessment by the public authority is unreasonable or irrational”. (Para 73)
Laws continues with his argument for “judicial restraint”. Modern law makes requirements on executive and administrative decision-makers to make decisions “in the name of liberal values” on minorities and equality. “But it is not generally for the courts to resolve the controversies which this insistence involves.” (Para 74: in full below)
It is Laws’ view that the Government fulfilled its requirements to consider minority needs as evinced in responses to previous cases, in Parliament and by setting aside extra funds under the discretionary housing payments (DHP) regime to meet some of the needs (enough to local authorities, according to the government, to offer adaptations in homes disabled people might move to in order to escape the under-occupation charge). Again judges should not seek to micro-manage such requirements. (Para 86)
The fact that disabled people do not form one discrete group with one specific need, “which can be identified in practical and objective terms and sufficiently differentiated from other groups equally in need of extra space but for other reasons” undermines the claimants’ argument regarding discrimination and strengthens the Government’s: that its response in offering DHP money was a proportionate way of dealing with those diverse needs.
The measure complained of was not “manifestly without reasonable foundation” in the Stec formulation. As a result, the claim failed.
One cannot but think that the real distinction between black people or gay people on the one side and disabled people on the other is that discrimination against the former two groups can usually be dealt with negatively – just stop discriminating so they can play a full part in society.
For disabled people, as a “non-discrete group” and as people with individual and specific needs, more is needed. Positive acts are required to ensure they take a full part in society – and those acts generally cost money. When saving money (or re-calibrating the welfare state – which amounts to the same thing) is part of “high policy”, then disabled people are the first to suffer among those with “protected characteristics” .
Note: The judgment can be read here (thanks to Adam Wagner for tweeting it so quickly): http://adam1cor.files.wordpress.com/2013/07/ma-ors-v-sofs-works-pensions-final-23-7-13.doc …
A Court of Appeal judgment in the same case is here. The court dismissed the appeal against the High Court judgment.
Also of interest: Iain Duncan Smith needs new benefit thinking cap (looks at likely social housing response to bedroom tax)
Housing blog Nearly Legal has posted on the case here
Background and materials
The under-occupation charge was brought in by the Housing Benefit (Amendment) Regulations 2012. New regulations A13 and B13 in the Housing Benefit regulations 2006 reduced the eligible rent for housing benefit in local authority or housing association housing when the number of bedrooms exceeds the number using criteria based on those used in the private rented sector for calculating Local Housing Allowance. They resulted in a reduction of 14% for one “excess bedroom” and 25% for two or more.
The claimants, representative of a range of people with disabilities, said the changes affected them in a way that violated their Article 14 rights under the European Convention on Human Rights (as well as article 1 of the First Protocol: right to peaceful enjoyment of property).
The claimants’ argument was that once the need for larger accommodation than allowed under the regulations had been assessed, housing benefit should be assessed according to that need. So the benefit should match the need for the size of accommodation that has been deemed necessary.
Furthermore the Public Sector Equality Duty in Section 149 of the Equality Act 2010 requires public authorities to:
(1) (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.
On indirect discrimination and ‘the usual standard’
Laws at para 15 quotes Henderson J in Burnip para 27: “Weighty reasons may well be needed in a case of positive discrimination, but there is no good reason to impose a similarly high standard in cases of indirect discrimination, or cases where the discrimination lies in the failure to make an exception from a policy or criterion of general application, especially where questions of social policy are in issue. … therefore, the proportionality review applicable in the present case (Burnip) must be made by reference to the usual standard, not an enhanced one.” Laws adds that by “the usual standard” Henderson J meant that the claimants had to show that the measure complained of was “manifestly without reasonable foundation”.
Laws concludes thus: “In Burnip (or rather Gorry) the Court of Appeal was faced with a discrete group, exemplified by Mr Gorry’s daughters: families with children who could not share a bedroom by reason of their disabilities. The court concluded that such persons suffered unlawful discrimination by the application of the private sector provisions equivalent to B13. But I do not accept that that approach can be applied here, where there is no such discrete group. The Secretary of State had, of course, nevertheless to consider carefully what steps to take in relation to disabled persons, and others, who would or might face real difficulties arising out of the cap – even though they could not practically be defined as a class. His provision of extra funding for DHPs and advice and guidance on its use cannot be said to be a disproportionate approach to the difficulties which those persons faced.”
Burnip/Gorry is discussed by Nearly Legal here
Article 14: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Protocol 1, Article 14: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Lord Freud 15 October 2012:
“As noble Lords will remember, the £30 million [extra DHP money] is divided so that £25 million is to cover people with significant adaptations. We estimate that there are around 35,000 claimants, particularly wheelchair users, who have accommodation adapted to their needs … The core question, raised by [Lord McKenzie and Lady Hollis] was whether there is suitable accommodation. I know it is a concern. Clearly, it varies across the country. This is not about making people move into it. Many will prefer to stay. What will happen in practice is that there will be a very varied effect on individuals. One can tier up the problems and end up with someone in a very difficult position. We had some examples today. This is exactly where we would expect the DHP to come into effect. A lot of people will decide that they will have enough money or that they will be able to take in a lodger or take extra work. Those are the kind of decisions that we expect to happen in the marketplace. There will, of course, be a residue of bigger problems.”
Note: following the High Court judgment the Government announced a further £35m to help disabled people affected by the new rules
Laws’ constitutional point
MA and Others, para 74: “So, as I have said, the discipline of the PSED lies in the required quality, not the outcome, of the decision-making process. This is well borne out by the learning; but in my judgment it reflects a more general constitutional balance. Much of our modern law, judge-made and statutory, makes increasing demands on public decision-makers in the name of liberal values: the protection of minorities, equality of treatment, non-discrimination, and the quietus of old prejudices. The law has been enriched accordingly. But it is not generally for the courts to resolve the controversies which this insistence involves. That is for elected government. The cause of constitutional rights is not best served by an ambitious expansion of judicial territory, for the courts are not the proper arbiters of political controversy. In this sense judicial restraint is an ally of the s.149 duty, for it keeps it in its proper place, which is the process and not the outcome of public decisions. I would with respect underline what was said by Elias LJ at paragraph 78 in Hurley, rejecting a submission for the claimants that it was for the court to determine whether appropriate weight has been given to the duty: “it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.”