Desmond Rutledge explains a landmark Court of Appeal decision upholding the rights of the severely disabled
In Burnip v Birmingham City Council & Anor the Court of Appeal declared that ‘the size criteria’, which prescribes the number of bedrooms that a claimant can qualify for when a claim for Housing Benefit is made in the private rented sector, was discriminatory on the grounds of disability. It did not make any allowance for the essential housing needs of severely disabled people, and that the Secretary of State had failed to establish any objective and reasonable justification for the discriminatory effect.
Two of the appellants (Mr Burnip and the late Lucy Trengove) were so severely disabled that they were assessed as needing the presence of full-time carers overnight. In the case of the third appellant (Mr Gorry), two of his children were disabled, one by Down’s syndrome and the other by Spina Bifida, and so it was inappropriate for them to share a bedroom. The appellants relied on Thlimmenos v Greece to argue that there was a positive obligation on the State to make provision to cater for the significant difference (here, between a severely disabled person and an able-bodied person). They further argued that the decision in AM (Somalia) v Entry Clearance Officer  EWCA Civ 634 established that such a positive obligation was in play in relation to the disabled.
The case represents a major step forward in the application of human rights arguments to the law of welfare benefits. In reaching its decision the Court of Appeal not only overturned a very restrictive decision of the Upper Tribunal but rejected the Secretary of State’s primary submission. It was argued on the government’s behalf that this type of challenge could not get off the ground, given that there was no example of the courts applying Thlimmenos so as to require a state to take positive steps to allocate a greater share of public resources to a particular group or person. Maurice Kay LJ said:
“Whilst it is true that there has been a conspicuous lack of cases post-Thlimmenos in which a positive obligation to allocate resources has been established, I am not persuaded that it is because of a legal no-go area. I accept that it is incumbent upon a court to approach such an issue with caution and to consider with care any explanation which is proffered by the public authority for the discrimination. However, this arises more at the stage of justification than at the earlier stage of considering whether discrimination has been established. I can see no warrant for imposing a prior limitation on the Thlimmenos principle. To do so would be to depart from the emphasis in Article 14 cases which, as Baroness Hale demonstrated in AL (Serbia) (at paragraph 25), is “to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification”. I would apply the same approach to a Thlimmenos failure to treat differently persons whose situations are significantly different”
It is notable that this is only the third case in which it has been held that a welfare benefit rule breached Article 14 (the other two are here and here). Normally, the Secretary of State can rely to a large extent on the wide margin of appreciation allowed to the executive when it comes to general measures of economic or social strategy and the need to have ‘bright-line’ rules in a complex benefit system. In Mr Burnip’s case, the Upper Tribunal had relied on the list of seven factors given by Elias LJ’s judgment in AM (Somalia). The Court of Appeal in Burnip however, said there were important differences between the circumstances in AM (Somalia) and the present appeals and a consideration of the same factors produced a different result. Henderson J said:
First, these are not cases of immigration control, where as Elias LJ noted the courts are particularly reluctant to interfere in matters of policy. On the contrary, we are here concerned with a benefit (HB) the purpose of which is to help people to meet their basic human need for accommodation of an acceptable standard. Secondly, there is no question of a general exception from the normal bedroom test for disabled people of all kinds. The exception is sought for only a very limited category of claimants, namely those whose disability is so severe that an extra bedroom is needed for a carer to sleep in (or, in cases like that of Mr Gorry, where separate bedrooms are needed for children who, in the absence of disability, could reasonably be expected to share a single room). Thirdly, such cases are by their very nature likely to be relatively few in number, easy to recognise, not open to abuse, and unlikely to undergo change or need regular monitoring. The cost and human resource implications of accommodating them should therefore be modest, quite apart from the point that in some cases the effect of refusing the claim could well be to force the claimant into full-time residential care at much greater expense to the public purse. Fourth, for the reasons which I have already given, the extra assistance which can be provided by discretionary housing payments, valuable though it can be, falls far short of being an adequate solution to the problem. Finally, the fact that Parliament has now seen fit to legislate for cases like those of Mr Burnip and Ms Trengove, and to do so at a time of general economic hardship, may in my view reasonably be taken as recognising both the justice of such claims and the proportionate cost and nature of the remedy.
For all these reasons, I am satisfied that maintenance of the single bedroom rule is not a fair or proportionate response to the discrimination which has been established in cases of the present type, and that the defence of justification therefore fails. As to the relief which it would be appropriate to grant, I am in full agreement with the views expressed by Maurice Kay LJ.”