Mitchell_EleanorThe Supreme Court will spend the first half of this week hearing the appeals in three related cases: R (MA) v Secretary of State for Work and Pensions, R (A), and R (Rutherford). All three involve partial challenges to the “bedroom tax” so controversially introduced in 2012.

The cases are factually arresting, involving what many may see as an inexplicable difference in treatment between highly vulnerable groups. They are also legally complex – not only because of the fine distinctions on which they turn, but because of the questions they are likely to raise about the underlying legal framework. The result is that the Court’s decision will be of interest to advocates, activists and public lawyers alike.

The following post discusses the factual background to all three cases and the decision of the Court of Appeal in MA; a subsequent post will pick up on the decision in Rutherford and A and on some of the key issues in this week’s appeals.

The facts of the matters

The “bedroom tax”, as readers will doubtless recall, involves a reduction of up to 25% in claimants’ entitlement to the Housing Benefit where they live in accommodation with more rooms than they are deemed to need. Under the relevant regulations, need is assessed by allocating one room for each person (or combination of people) on a prescriptive list contained in reg B13(5): examples include a couple, two children of the same sex, and two children under ten years old. Under reg B13(6), an additional room is allocated where a claimant or their partner is an adult who requires overnight care; a foster parent; or a carer. The result is that these households are effectively exempted from the bedroom tax.

Where a claimant caught by the tax believes they do need the “extra” room(s) in their accommodation, they can apply for a Discretionary Housing Payment (“DHP”) from their local authority. However, the DHP is paid out of a capped fund; may be awarded for a fixed period only; and may not be sufficient to cover the bedroom tax “gap”. Relying on the DHP is therefore more precarious than relying on the Housing Benefit.

This is the position in which the claimants in MA, Rutherford and A find themselves.

MA involves five individuals belonging to households in which a disabled person needs an extra bedroom for reasons linked to their disability: in one case, for example, the claimant’s wife requires a large specialist bed that leaves him unable to share a room with her. The case of Rutherford involves an elderly couple looking after their grandson, who suffers from a rare genetic disorder requiring round-the-clock care; they are unable to cope without the assistance of overnight carers twice a week, and require a third bedroom for this purpose. Finally, the claim in A centres on a woman who is part of a State-run “Sanctuary Scheme” to protect her from a violent ex-partner; as part of the scheme, a room in her house has been converted into a “panic room” which can be locked down in case of emergency.

None of the claimants’ situations is covered by reg B13(5) or (6) – a decision they say violates their rights under Article 14 of the European Convention, in conjunction with Article 1 of Protocol 1. The claimant in A further alleges that, in formulating the regulations, the Secretary of State failed to comply with the public sector equality duty (“PSED”) as it relates to women victims of domestic violence.

The decision below: MA

The claimants in MA – the first of the cases to come before the Divisional Court – must have been encouraged by the previous decision of the Court of Appeal in Burnip v Birmingham City Council, which had upheld a similar challenge on behalf of adults requiring overnight care and disabled children who were unable to share a bedroom. Unexpectedly, however, both the Divisional Court and the Court of Appeal took a different view. In particular, the Court of Appeal – while accepting that the case involved indirect discrimination against disabled people – held that the Secretary of State had shown that there was “objective and reasonable justification” for the treatment. The Court distinguished Burnip primarily on the basis that it had involved a group which was “relatively few in number, easy to recognise, not open to abuse and unlikely to undergo change or need regular monitoring”; by contrast, the more diverse group in MA “may be relatively large, not always easy to recognise, may be open to abuse and (in some cases at least) will require monitoring” (at [72]). Furthermore, since the decision in Burnip additional resources had been allocated to the DHP fund and further guidance on its allocation had been issued to local authorities (at [64], [72]).

In reaching its conclusion the Court emphasised that the question was not (as the claimants had submitted) whether there were “very weighty reasons” in favour of justification, but whether the justification advanced was “without reasonable foundation” (at [49]; see also [80]). This was the standard that had been applied in Burnip, and was said to find further support in the Supreme Court’s decision in Humphreys v Revenue and Customs Commissioners.

The judgment in MA left the claimants in Rutherford and A – who did not reach a Divisional Court until some months later – facing a potentially uphill battle to align their cases squarely with Burnip. It is to this battle, and from there to the proceedings currently before the Supreme Court, that the following post will turn.