A room of one’s own
Discrimination must be removed from under-occupation penalty plans, says Giles Peaker, solicitor at Anthony Gold
In the recent case of Burnip v Birmingham Council & Anor, the Court of Appeal was asked to decide whether housing benefit regulations on room rates breached the appellants’ human rights by discriminating against disabled people. The Court of Appeal found that they did, and in a way that will be important for future housing benefit provisions.
Of the appellants, two were single disabled people who required overnight carers, for whom they needed a second bedroom. The third had a family with two disabled young daughters, who required separate bedrooms. Under the regulations then in force, the first two were assessed as only eligible for a single bedroom rate, and the third on the basis the daughters should share a bedroom. This left a shortfall against rent. Discretionary housing payments were made, but irregularly and still leaving a rent shortfall.
The appellants argued there was a breach of article 14 of the European Convention on Human Rights - the prohibition on discrimination - where the state ‘without an objective and reasonable justification fails to treat differently persons whose situations are significantly different’. In these cases, the state had failed to address that ‘the disabled person has a level of need which is greater to enable him to live in a dignified manner in the community’. This was indirect discrimination.
The Court of Appeal found that there was a breach of article 14. The question then was whether the breach could be justified as having a legitimate aim. The court decided that although the appellants were receiving other benefits with a disability component, these were for subsistence, not to make up rent. The existence of discretionary housing payments was not enough. There was no justification for the discrimination.
While the additional room for overnight carers had been corrected by regulations in April 2011, it was still the case that the disabled children would be treated as sharing a room for the room rate calculation. The Court of Appeal therefore made a declaration that the relevant regulations were incompatible with article 14 under the Human Rights Act 1997.
In practice, the relevant regulations remain in force, but the incompatibility should be corrected by the secretary of state for work and pensions by legislation if necessary.
Such a remedy has taken years in the past, as after the declaration in Westminster Council v Morris on priority need for homelessness via children under immigration control. In the meantime, there is little those currently affected can do.
However, proposals to transfer the private sector room rate calculations to social housing will need to be reviewed in the light of this judgement. As there has been a declaration of incompatibility, and assuming there is no appeal to the Supreme Court, the proposals must address the issue or face legal challenge.
Giles Peaker is a solicitor at Anthony Gold