Burnip v (1) Birmingham City Council (2) Secretary of State for Work & Pensions  EWCA Civ 629
Subjects: Article 14 ECHR – Housing Benefit – Social Security – Indirect Discrimination – Justification
Under the Housing Benefit Regulations 2006 (“Regulations”), private sector housing benefit (“HB”) is paid as a rent allowance calculated by reference to the number of bedrooms that are required by the claimant. In this case all three Cs sought to establish that the awards of HB from the respective Rs were unlawfully discriminatory pursuant to Article 14 of the ECHR. The first and second Cs required the presence of carers throughout the night in their rented flats and therefore argued that they required two-bedroom flats. However in each case they were awarded HB quantified by reference to the one-bedroom rate for able-bodied tenants. The third C sought HB to reflect the fact that two of his three children were disabled therefore could not share a bedroom in a way in which able-bodied children would be expected to do. Their house was a four-bedroom house but HB was assessed with reference to the three-bedroom rate which would apply if the children were able-bodied.
Overnight carers do not fall within the definition of “occupier” in Reg 13D of the Regulations and so claimants, applying the law, were not entitled to an additional bedroom. Furthermore, Reg. 13D(3) also made it clear that two children of the same sex were entitled to only one bedroom. When considering whether these statutory criteria were discriminatory the Court of Appeal referred to the case of Thlimmenos v Greece (2001) 31 EHRR 15. In that case the CJEU considered that the right not to be discriminated against (Art. 14) is violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are signiﬁcantly different. Member States have a positive obligation to cater for these sorts of significant differences (para 15). Maurice Kay LJ held that the appellant had established a prima facie case of discrimination in the Thlimmenos sense. The Court held that the difference in treatment resulting from the application of the criteria had to be justified and not the scheme of HB as a whole but. Rs tried to argue firstly, that Cs were entitled to other benefits and that these could go towards meeting the shortfall in HB, and secondly, that Cs were assisted by discretionary housing payments. Rejecting both of these arguments, Henderson J stated that an exception was sought only for a very limited category of claimants. The costs should be modest as the claimants were by their very nature likely to be relatively few in number and easy to recognise. The exception sought was not open to abuse and unlikely to undergo change or require monitoring. Assistance provided by discretionary housing payments fell short of an adequate solution. The fact Parliament had legislated recently to amend the position for cases like that of the first and second Cs recognised the justice of these claims and the proportionate costs of the remedy (para 64). Therefore the single bedroom rule was not a fair or proportionate response to the discrimination in any of the cases (para 65).
Rs tried to argue that the case of Lewisham Borough Council v Malcolm  1 AC 1399 provided the correct comparators. The Court of Appeal rejected this argument, highlighting criticism of the restrictive reading of the DDA in the judgment in Malcolm itself and pointing out that s 15 of the Equality Act 2010 has now amended the position (para 13). In light of this it would appear that Malcolm can no longer be relied upon even in claims based upon the ECHR. As a point of interest, the Court of Appeal also rejected the argument that statistical evidence was necessary in an Article 14 case.
The full transcript is here: http://www.bailii.org/ew/cases/EWCA/Civ/2011/629.html