Case Comment: R (Carmichael & Rourke & Ors) v SSWP  UKSC 58, Part 2
15 Thursday Dec 2016
Lord Toulson (for the majority) expressed some doubt as to the soundness of the reasoning in Burnip, noting it would be “truly irrational” to treat the size of the relevant class as determinative where members of the larger group may have equally strong – or even stronger – reasons for needing additional bedrooms (at ). However, the majority ultimately distinguished Burnip on the basis that in that case there was a “transparent medical need” for an extra bedroom, where the claimant’s need in A was ultimately unrelated to the size of her property. The DHP could reasonably be used to meet the latter type of need; on this basis, the majority allowed the Secretary of State’s appeal (at -).
Lady Hale and Lord Carnwath dissented. They accepted the distinction between the “direct” needs of the claimants in Carmichael and Rutherford and the needs of A (at ), but considered it unjustifiable to meet A’s needs through the DHP rather than by way of exemption from the 2006 Regulations. This was due to the State’s positive obligation – arising under ECHR, arts 3 and/or 8 with art 14 – to “provide effective protection for vulnerable people against ill-treatment and abuse” (at ). According to Lady Hale, failing to exempt A from the “bedroom tax” was discriminatory “in the sense described in Thlimmenos v Greece: treating her like any other single parent with one child when in fact she ought to be treated differently” (at ). The alleged justification – the DHP’s availability – was inadequate for the reasons given in Burnip (at ). A’s position was therefore distinguishable from that of the other claimants in MA due to the clearly identifiable group into which she fell, and the State’s specific obligations to those within that group (at ).
Lord Toulson dealt directly with these concerns, arguing that although individuals in A’s position might have a “powerful case” for remaining in their accommodation, this was insufficient to differentiate them from others whose need to remain might arise from disability or broader social considerations (at -). As their needs remained “unrelated to the size of the property”, it was reasonable for the Secretary of State to deal with them case by case under the DHP scheme (at ). The State’s duty to protect victims of gender-based violence did not alter this conclusion, as it did not “mandate the means by which such protection was provided” and the DHP scheme did not completely deprive A of a safe haven (at ).
The outcomes in Carmichael and Rutherford are unsurprising, given the close factual analogy to Gorry and Burnip respectively. However, the result in A is likely to disappoint many.
As discussed in our previous posts, the arguments based on the criteria in Burnip appeared compelling – and the distinction drawn by the Supreme Court between a “transparent medical need” for an additional room and a need to remain in accommodation which happens to have an additional room, is not one which featured prominently in the argument or reasoning below. The majority’s suggestion that this was the distinction the Secretary of State had in mind when designing the scheme (see e.g. ) may therefore appear overly generous. However, when combined with the low threshold set by the “manifestly without reasonable foundation” test, it is perhaps unsurprising that the majority considered the distinction sufficiently reasonable to avoid interference.
Indeed, this approach was also accepted by Lady Hale and Lord Carnwath, who then distinguished A’s needs from those of (for example) people with disabilities on the basis of the specific positive obligations owed to victims of gender-based violence – a distinction some may question. It is interesting that Lady Hale and Lord Carnwath did not draw on the reasoning in Burnip for further support (as the Court of Appeal did), given the small, easily identifiable class of women involved. It may be that they shared the majority’s concerns in this regard – though it is surely arguable that the administrative ease of making a particular exception is relevant to whether a discriminatory failure to do so is “manifestly without reasonable foundation”.
The Court’s decision
In relation to the PSED, the majority agreed with the Court of Appeal that it was sufficient for the Secretary of State to have considered the general impact of the proposed policy on women, without specifically considering the position of women protected by the Sanctuary Schemes (at ). Lord Toulson, however, considered the more important consideration to be that there was no “automatic correlation” between participation in a Sanctuary Scheme and the need for an extra bedroom (at ).
Again, Lady Hale and Lord Carnwath took a different view. Although they recognised that gender-based violence was unlikely to constitute discrimination prohibited by the Equality Act, they considered it to be a disadvantage suffered by people (namely women) sharing a protected characteristic; as a result, it fell within the need to enhance equality of opportunity (at ). Thus the Secretary of State was required to consider the impact of its policy on victims of gender-based violence specifically, and not merely on woman generally (also at ).
Advocates for victims of gender-based violence may well be disappointed that the reasoning of Lady Hale and Lord Carnwath did not prevail here. A finding that the PSED encompassed a duty to consider the needs of victims of such violence would have set a potentially powerful precedent. There may, however, be a glimmer of hope in that the majority’s conclusion rested largely on the closeness of the connection between the Sanctuary Schemes and the impact of the “bedroom tax”, rather than on the scope of the PSED more generally.
Responses to the Supreme Court’s decision are likely to be equivocal, as regards both the results in the various cases and the underlying reasoning. In the medium term, the decision seems most likely to assist respondents arguing for the applicability of the “manifestly without reasonable foundation” test; on the other hand, we may well see Lady Hale’s dissent prayed in aid in future cases involving the relevance of the Equality Act to issues of gender-based violence. The success of both endeavours will be well worth monitoring.
Part 1 of this Case Comment can be found here.