Desmond Rutledge examines why the Court of Appeal in MA and Others refused to apply the reasoning in Burnip to disabled adults in the social sector who need an extra bedroom.
Burnip and the bedroom criteria in the private sector
In 2006, the local housing allowance scheme was introduced to restrict the amount of housing benefit payable to claimants renting in the private sector. An important aspect of that scheme was the size criteria (here referred to as the bedroom criteria). This prescribed the number of bedrooms that could be covered by a claim for housing benefit. Under the ‘criteria’ one bedroom is allowed for:
(a) a couple;
(b) a person who is 18 or over;
(c) two children of the same sex;
(d) two children who are less than 10 years old;
(e) a child.
In Burnip v Birmingham City Council and Anor  EWCA Civ 629, three appellants challenged the legality of the bedroom criteria on the basis that it did not take account of their objectively assessed accommodation needs as disabled persons. Mr Burnip and Ms Trengove were severely disabled and needed a second bedroom for an overnight carer. Mr Gorry’s two young daughters required separate bedrooms as, due to their disabilities, it was not reasonable for them to share one. The appellants relied on the argument of unlawful discrimination contrary to article 14 of the European Convention on Human Rights, in conjunction with Article 1 of Protocol 1. In particular, that the legislation failed to treat disabled persons differently under the principle applied in Thlimmenos v Greece (2001) 31 EHRR 15.
The Court of Appeal allowed the appeal holding that the private sector bedroom criteria rules were discriminatory against those who needed an extra bedroom for a carer overnight or because their children could not share a room as a result of disability, and that this could not be objectively justified. The Court rejected the Secretary of State’s argument based on the availability of discretionary housing payments (‘DHPs’) given that such payments were purely discretionary in nature; their duration was unpredictable; and they were payable from a capped fund. The Court at , however, made it clear that the exception required by the category of claimants in Burnip was a limited one:
“… 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 …”
MA and Others and the bedroom criteria in the social sector
The Welfare Reform Act 2012 authorised the use of the ‘bedroom criteria’ to restrict the amount of housing benefit payable in the social sector by inserting Regulation 13B into the housing benefit rules (SI 2012/3040) in order to address the perceived problem of ‘under-occupancy’. A group of ten claimants with disabilities (both adults and children) brought judicial review proceedings challenging the validity of those Regulations. In R (MA and Others) v Secretary of State for Work and Pensions  EWHC 2213 (QB), they argued that the 2012 Regulations were incompatible with the ECHR, having regard to the adverse impact the policy has on disabled persons by analogy with the human rights challenge in Burnip. The Divisional Court said the approach taken in Burnip could not be applied on the facts of MA and Others as it was not possible to identify a sufficiently precise class of victims affected by the measure. The Divisional Court held that the Secretary of State’s reasons for refusing to exclude disabled persons from the changes could not be described as “manifestly without reasonable foundation” and that the provision of DHPs in ‘hard cases’ constituted a proportionate approach to the difficulties faced by those disabled claimants (-). The Divisional Court did, however, accept that disabled children were covered by Burnip and criticised the Secretary of State for failing to amend the regulations in the light of the Court’s ruling ().
The disabled adult claimants took their case on appeal to the Court of Appeal. In R (MA and Others) v Secretary of State for Work and Pensions  EWCA Civ 13 the claimants again relied on Burnip and submitted that it was determinative of the justification issue.
This time, as well as submitting that an exclusion was necessary for the broad category of disabled claimants who need an extra bedroom due to their disability in order to render the Regulations compatible with article 14, it was also argued that given the facts in Mrs Carmichael’s case – a claimant who needed a separate specialist bed and whose husband therefore used a second bedroom – even if the Secretary of State was able to justify discrimination against the general group of disabled persons , he could not justify discrimination against this small and easily identifiable group of disabled persons who, for all practical purposes, were indistinguishable from the children in Gorry (the third appellant in Burnip), and therefore Henderson J’s reasoning was applicable.
The Court of Appeal rejected these arguments and upheld the decision of the Divisional Court. Dyson MR, who gave the lead judgment, gave the following reasons for distinguishing Burnip:
- Burnip was concerned with a different scheme. The DHP scheme had also changed and further guidance had been issued by the DWP to the local authorities that administer it and the DHP fund was now better resourced.
- The Regulations that were being considered in Burnip were not made under the shadow of the financial crisis and the need to reduce public spending which the Coalition Government was elected in 2010 to bring about ().
- None of the considerations identified by Henderson J applied (or applied with the same force) to the category of disabled persons that need to be excluded from the size criteria in the social sector. The broader category of cases is likely to be relatively large, would not always easy to recognise, may be open to abuse and (in some cases at least) would require monitoring ().
- The Secretary of State was entitled to provide a greater degree of protection for children than for adults who are in a materially similar situation, given the vulnerability of young children ().
The appellants have applied for permission to appeal to the Supreme Court.
Why MA and Others Failed
The human rights challenge to the bedroom tax in MA and Others failed because it was perceived by the judiciary to be a direct challenge to one of the Government’s flagship policies on welfare reform, and in the words of Laws LJ: “the courts are not the proper arbiters of political controversy”. More fundamentally, whist the United Kingdom has ratified international human rights treaties which contain the right to adequate housing as a component of the right to an adequate standard of living; it has not incorporated these treaties into UK law. The Human Rights Act 1998 provides a limited form of protection; for where a Contracting State voluntarily decides to create an entitlement to welfare benefit for some, it must, under article 14, not withhold it from others in the same or in an analogous situation without good reason (Stec at -). However, the legislature is to be given a generous margin of discretion in welfare benefit cases, which means there will not be any breach of article 14 so long as the Government can show that the measure under challenge has ‘some reasonable basis’.
The position post-MA and Others
Subject to MA and Others being overturned by the Supreme Court, the scope for running a successful article 14 challenge to the bedroom criteria in the social sector now appears to be extremely limited. However, an example of a case that might still succeed is R (Rutherford and Todd) v Secretary of State for Work and Pensions (CO/13841/2013). This case concerns a 13 year old child who has a rare genetic disorder which means he requires 24-hour care by at least two people at all times. The child lives with his grandparents in a 3-bedroom bungalow but the third room is deemed to be spare under the bedroom criteria (despite it being needed for the carers to stay overnight). This case therefore identifies a lacuna in the express exemptions introduced by the government, as these do not cover a disabled child who requires overnight carer
A key feature of the Court of Appeal’s judgment in MA and Others is its acceptance of the Secretary of State’s argument that the only practical way to provide for the needs of some disabled persons with additional accommodation requirements is by means of DHPs. The Court appears to have given particular weight to: (i) the difficulties in finding an exemption that was well-targeted and workable; (ii) the argument that DHPs were in line with a localised approach which could take into account the circumstances of individual households alongside the fact that local authorities are accountable locally for the money they spend; and (iii) that the DHP funding has been increased and would be kept under review (-).
This means the legal debate has started to shift to how local authorities deal with applications for DHPs from claimants affected by the bedroom tax. For whist the policy intention of DHPs is to help meet the shortfall in ongoing rental costs for disabled persons in adapted accommodation, research carried out by the Papworth Trust found that DHPs are not working in the way that the Government meant them to, as a third of disabled people were refused a DHP. The DHP Guidance also says that local authorities may disregard income from disability- related benefits, but research has shown that over three quarters of local authorities are counting disability living allowance (‘DLA’) as income. Permission has been granted to judicially review Sandwell Council’s policy of including DLA as income when determining a disabled person’s application for DHP. DLA is not intended to cover housing costs; it is a benefit that pays for the extra costs of having a disability. Moreover, the policy which treats income from a claimant’s disability benefits as providing them with sufficient income to make up any shortfall would appear to be inconsistent with what was said in Burnip at  where, after reviewing the statutory framework in some detail, Henderson J said:
“… I think it is necessary to draw a clear distinction between the benefits which Mr Burnip was entitled to claim for his subsistence, and those which he was entitled to claim in respect of his housing needs. His incapacity benefit and disability living allowance were intended to meet (or help to meet) his ordinary living expenses as a severely disabled person. They were not intended to help with his housing needs. …. It would therefore be wrong in principle, in my judgment, to regard Mr Burnip’s subsistence benefits as being notionally available to him to go towards meeting the shortfall between his housing- related benefits and the rent he had to pay.”
Given these developments, the Court of Appeal’s ruling in MA and Others is unlikely to be the last word on the impact of the bedroom tax on disabled claimants in the social sector.