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Introduction

Eight months ago these cases – all concerning exceptions to the “bedroom tax”, and then Mitchell_Eleanorknown as MA v SSWP – were heard by the Supreme Court. On 9 Nov 2016, the Court handed down its judgment – one likely to be received with mixed feelings.

The majority, in a judgment given by Lord Toulson (Lords Neuberger, Mance, Sumption and Hughes agreeing), upheld the claimant’s appeal in Carmichael and dismissed the Secretary of State’s appeal in Rutherford – both relating to disabled claimants with a medical need for an additional bedroom. However, they dismissed the appeals of the remaining claimants in MA and upheld the Secretary of State’s cross-appeal in A – the former relating to other individuals with disabilities, and the latter to domestic violence victims protected under Government-administered “Sanctuary Schemes”.

Lady Hale (Lord Carnwath agreeing) dissented in relation to A.

A summary of the essential facts relating to the “bedroom tax”, its implementation via the Housing Benefit Regulations 2006, and its relationship to the Discretionary Housing Payment (“DHP”) can be found in posts available here and here.

The applicable test

The Court’s decision

Perhaps the most far-reaching challenge considered by the Court was that brought against the test for justification applied by the Court of Appeal in MA.

The Court of Appeal, relying on Lady Hale’s judgment in Humphreys v Revenue and Customs Commissioners [2012] 1 WLR 1545, had considered that the case involved “discrimination in state benefits” and hence that the usually strict test for justification on grounds such as sex or disability gave way to the question of whether the Government’s approach was “manifestly without reasonable foundation”.

The Supreme Court considered whether there was “good reason to depart” in this case from what Lady Hale had said in Humphreys (at [31]). It noted the “fundamental reason” for applying the “manifestly without reasonable foundation” test as given by the ECtHR Grand Chamber in Stec: that “[c]hoices about welfare systems involve policy decisions on economic and social matters which are pre-eminently matters for national authorities” (at [32]).

The Court rejected the claimants’ argument that the challenge in this case was not to the “bedroom tax” itself, but rather to the detail of its implementation.  The relevant question was whether people whose disabilities resulted in a need (medical or social) for an additional room should be catered for by the Secretary of State in the 2006 Regulations, or through the “linked system” of DHPs (at [36]). This was a “clear example of a question of economic and social policy, integral to the structure of the welfare benefit scheme”; furthermore, departure from the “manifestly without reasonable foundation test” risked opening the door to the “skilled lawyer” capable of “circumvent[ing] the general rule by couching the discrimination complaint in terms of an attack on matters of detail” (at [36]).

Although the Court recognised that a number of ECtHR cases relating to state benefits had nominally required “weighty reasons” to justify discrimination, it considered that none contained “a statement of general principle inconsistent with Humphreys” (at [37]).

Comment

The Supreme Court’s unanimous conclusion on the applicability of the “manifestly without reasonable foundation” test may disappoint rights advocates. While the test is fairly strongly entrenched in cases directly challenging matters of economic and social policy, confirmation that it extends to the details of policy implementation will mean claimants continue to face an uphill battle even where the issues are relatively narrow and focused.

As to the distinction between policy and implementation, it is somewhat surprising that the absence of a bright line should be thought to render an otherwise reasonable distinction unworkable. As the Court’s decision ultimately turned on the conclusion that the question in these cases was not merely one of implementation, this may not be the last word on the issue.

Application of the test to the claims

The Court’s decision

In applying the “manifestly without reasonable foundation” test to the cases, the Supreme Court differed in several respects from the Court of Appeal.

In Carmichael, the claimant could not share a bedroom with her husband because of her disabilities. Her position was “directly comparable” to that of the claimants in Gorry v Wiltshire County Council (heard alongside Burnip). Gorry resulted in an amendment to the 2006 Regulations, exempting children – but not adults – who “cannot share a bedroom”. The Court of Appeal held that there was an objective and reasonable justification for treating Mrs Carmichael less favourably than a child in the same situation, as the best interests of the child had to be a primary consideration.

This conclusion contrasted starkly with Rutherford, where the claimants required a regular overnight carer for their severely disabled son. Their position was analogous to that of the claimant in Burnip v Birmingham City Council, who herself required overnight care. Burnip had resulted in an exemption where a claimant or their partner – but not their child – required such care. By analogy with Burnip, the Court of Appeal found for the claimants.

The Supreme Court concluded that, in both Carmichael and Rutherford, there was “no reasonable justification” for the Secretary of State’s position – there being no “sensible reason” for distinguishing between adults and children who could not share a bedroom due to disability, or  between adults and children needing overnight care (at [46]). The Court therefore upheld Mrs Carmichael’s appeal and dismissed the Rutherfords’.

By contrast, in A, the claimant – who was part of a domestic violence victims’ Sanctuary Scheme – lived in a three-bedroom apartment adapted to her security needs. The Court of Appeal held that the ratio in Burnip – turning on factors such as the relevant class size and ease of identification – applied, such that the claimant’s case should succeed.

Part 2 of this Case Comment can be found here.