Preferring Burnip: Discrimination without justification

Rutherford & Ors, R (On the Application Of) v Secretary of State for Work & Pensions [2016] EWCA Civ 29

The Court of Appeal tackles the bedroom tax and discrimination again, and, a year on from MA & Ors, there is quite a difference.

The two joined appeals here, from negative judicial review claims, were by Rutherford and A. Both were cases alleging unjustified discrimination in the operation of the bedroom tax regulations.

The facts are in our earlier notes on Rutherford here and (more sketchily) on A here(Ill say more about A below). I urge you to read the facts in the Rutherford post for a real understanding of the situation.

The judicial reviews in both Rutherford and A failed, on the grounds that while there was Article 14 convention rights discrimination, the availability of discretionary housing payments (DHP), together with central govt funding and guidance, were sufficient to amount to a justification of the discrimination, in particular because DHPs were actually in payment to both claimants.

As we will see, things went rather differently in the Court of Appeal.

The claimants grounds of appeal were:

Both cases were close to Burnip [2012] EWCA Civ 629 than to MA & Ors, as there were clear, narrow classes of situations involved, easily identified and prospectively easily exempted by regulation. Admitted Article 14 discrimination could not be justified, as per Burnip.

The situation of A the panic room had not been expressly considered in the making of the regulations. A argued a failure by the Secretary of State to obtain and consider evidence on the impact of the policy on victims of gender based violence, thus a failure under the public sector equality duty.

In the Rutherfords situation, there was no good reason why overnight carers for adults should result in an exemption for the needed room, but that an overnight carer for a child should not have such an exemption. This was a failure to act in the best interests of the child(arising from the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities).

In a relatively short and quite brutal judgment, the Court of Appeal found:

While it was equally bound by MA & Ors and Burnip, it was also bound by the way MA & Ors had distinguished Burnip, as at 71-75 of MA. This was principally on the question of identifiable, narrow classes of individuals as against the broader category of disabled persons in MA, which may be relatively large, not always easy to recognise, may be open to abuse and (in some cases at least) will require monitoring.

On A, on Article 14:

43. A and those in a similar position to A, who have suffered from serious violence, require the kind of protection offered by the Sanctuary Schemes in order to mitigate the serious effects of such violence and the continued threats of such violence. It cannot seriously be disputed that A and those in a similar position, who are within the Sanctuary Schemes and in need of an adapted safe room, are few in number and capable of easy recognition. There would be little prospect of abuse by including them within the defined categories in Regulation B13 and little need for monitoring. Moreover, with careful drafting, Regulation B13 could be amended to identify them as a discernible and certain class.

For these reasons, As position was not distinguishable from the reasoning in Burnip each of the reasons for doing so given in MA were countered directly.

49. In MA, the court distinguished Burnip on the grounds we have mentioned, each of which is specifically not applicable to As case. But the question is whether the other reasons given in MA for the justification of the discrimination would allow us to depart from Burnip, or whether, however much those factors might apply in this case, the similarity between As case and Burnip is such that we would not be justified in deciding it differently.

This left the issue of whether DHPs were sufficient to show that the discrimination was not manifestly without reasonable foundation.

A was receiving DHP. In addition the Secretary of State pointed to the further central funds for DHPs and the DWP Guidance. However,

54. In these circumstances, whilst we saw great force in the Secretary of States arguments, which we subjected to serious scrutiny, we feel constrained not to accept them. We acknowledge in particular that DHPs are discretionary, but that that discretion has to be exercised lawfully and in accordance with the guidance issued by the Secretary of State. If they were to be withheld inappropriately, the decision would be subject to review. We acknowledge that the evidence shows that the DHPs would cover the full deficit in Housing Benefit. We acknowledge that, even though the fund for DHPs is capped and may in theory be insufficient, there is no clear evidence that it will be; on the contrary, so far it has been sufficient. Thus, the evidence is that A has received what she would have received had those in her position been brought within a defined class in Regulation B13; she has not been disadvantaged. But that was the position in Burnip, and the same justification was not accepted.

55. Burnip obliges us also to decide that the Secretary of State was not entitled to decide that the better way of providing for A and those in a similar position was by way of DHPs, even though that would be a more flexible approach.

56. In these circumstances, we have concluded that the appeal in A must be allowed on the ground that the Secretary of State has failed to show that his reasons amount to an objective and reasonable justification for the admitted discrimination in Regulation B13.

A therefore succeeded in the disability discrimination Article 14 claim, the admitted discrimination could not be justified.

On the PSED argument:

It is clear that the Secretary of State did address the question of gender based discrimination. Those within the Sanctuary Schemes who would be adversely affected by Regulation B13 were in fact few in number. It was not in the circumstances a breach of the PSED to fail to identify in the Equality Impact Assessment this very small group of those within the Sanctuary Schemes who had a need for an extra room; this was a very tiny and specific group.

The appeal on the PSED issue failed.

On the Rutherford appeal, as well as the Burnip narrow class issue, there was the further issue of treating children differently (and worse) than adults. R pointed to the Secretary of States own argument and evidence on the Carmichael case in MA & Ors, as per the Master of the Rolls:

I do not accept that the differential treatment of adults and children is irrational or that there is no objective and reasonable justification for it. The best interests of children are a primary consideration For that reason alone the Secretary of State was entitled to decide to provide for a greater degree of protection for children than for adults who are in the materially similar situation of having a disability related need for an additional bedroom.

However in this present case, the Secretary of State argued that

primary consideration had been given to the best interests of the child in formulation of the overall policy; there was a proper justification for treating the accommodation needed for carers of disabled adults and disabled children differently and in any event DHPs would be made in all appropriate cases, as had happened in the case of W.

The Court of Appeal found otherwise:

72. It is clear from the decision in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250 and in particular paragraphs 39-40 that the Secretary of State should have had specific regard to the best interests of children in the position of W as a primary consideration when devising the Regulations. The importance of the way in which the best interests of children should have been taken into account was underlined in the way in which the Master of the Rolls approached the case of Mrs Carmichael in MA, as appears from the passage to which we have referred.

73. On the evidence before the court justifying the different treatment in Regulation B13 of accommodation needed for carers of disabled adults and accommodation needed for carers of disabled children, the Secretary of State did not address how the distinction could be justified by reference to the best interests of a child as a primary consideration. He justified the distinction between making provision for a bedroom for disabled children but not for disabled adults by reference to the best interests of the child and explained the different treatment on that basis. On that basis, it seems to us very difficult to justify the treatment within the same regulation of carers for disabled children and disabled adults, where precisely the opposite result is achieved; provision for the carers of disabled adults but not for the carers of disabled children. In this context, moreover, the argument based on the promotion of independent living for adults, whereas children can be cared for within the family, has little purchase. We accept that DHPs were intended to provide the same sum of money, but we are not persuaded that this justifies the different treatment of children and adults in respect of the same essential need within the same Regulation, as neither the Regulation nor the policy behind the Regulations addressed the best interests of the child as a primary consideration. Moreover, the evidence of the two charities set out at paragraph 25 shows that the Secretary of State cannot in the case of the need for accommodation for the carers of disabled children demonstrate that DHPs will always be available. Furthermore it is regrettable that the position of carers for disabled children is not expressly dealt with in the Guidance which addresses the position only where there is specially adapted accommodation.

Rutherford therefore also succeeded on the Article 14 discrimination issue, with the discrimination being without reasonable justification, either by DHP or in the failure to have the best interest of the child in mind.

On remedy, no order was made, given that the Secretary of State had sought and been granted permission to appeal to the Supreme Court. The proposal was that the appeals should be heard with that in MA & Ors in March this year.

The Supreme Court has since confirmed that this will happen.


There was always this tension between the judgments in Burnip and in MA & Ors, one that the decision on the Carmichael case in the MA & Ors judgment glossed over, (it being at least arguable that the Carmichaels case partners unable to share a room by reason of disability would also meet the Burnip criteria like A and R). It was, perhaps, a consequence of bringing a broad, multi-claimant case.

Courts and tribunals have followed MA as if the broad class of disability automatically contained all cases of disability, with the DWP pointing out where MA & Orsclaimants contained individuals with similar disability related needs. Given the fog created by the Carmichael decision in MA, this approach by courts and tribunals was understandable.

However, the Burnip judgment was not dead, just sleeping. Where a situation meets the criteria a discernible and certain class, few in number, capable of easy recognition, not open to abuse or requiring monitoring it is now arguable thatBurnip applies, including the position on DHP not being sufficient to remedy the discrimination.

Further, it is clear that the court in this case was happy to hear and accept evidence on the operation of DHP in practice.

There was additional evidence in relation to the position of those who were in a similar position to SR and W:

(i) In a statement made in April 2014 by Emily Holzhausen, the Director of Policy at Carers UK, there were details of a case, which had been referred to Carers UK, where a single mother with a disabled child who had spinal surgery needed round the clock care; there was a spare room so that an aunt could stay on a regular basis. DHPs were awarded until March 2014, but further DHPs were refused from April 2014 and the claimants were told that an appeal was unlikely to be successful.

(ii) In a statement made in April 2014 Nicola Whiteman, the policy and investment manager of the Papworth Trust, a charity for the disabled and a social landlord, stated from information they had gathered that DHPs were not working in the way in which the Secretary of State intended in relation to disabled children.

The Secretary of State acknowledged that evidence, but submitted that there was nothing that called into question the overall adequacy of the provision and the funding of DHPs.

That evidence led to the conclusion that the evidence of the two charities set out at paragraph 25 shows that the Secretary of State cannot in the case of the need for accommodation for the carers of disabled children demonstrate that DHPs will always be available.

As I noted in relation to the Rutherford JR judgment, whether DHP is actually available, to specific claimants, is an issue, not just the broad brush of the DHP funding and scheme as a whole.

These then are two issues of immediate application to First Tier Tribunal and Upper Tribunal appeals (subject to any stay pending the Supreme Court decisions).

And what of the Supreme Court?

Well, there is a suggestion of a likely line of argument from the DWP in this judgment. At 52:

The factors relied on in MA are relied on again here, but the Secretary of State has in this case placed particular reliance on the fact that A and those in her position were receiving and would receive DHPs that meant that they always had the full amount that would otherwise have been payable as Housing Benefit. In other words, the scheme as a whole comprising Housing Benefit and DHPs was not actually discriminatory at all in its overall effect. In argument, we suggested to Mr Eicke QC that this approach might have led him to deny the existence of discrimination in the first place, rather than providing appropriate justification for that discrimination. His problem was that in both Burnip and MA, the court had actually decided that the discrimination in question was that contained in Regulation B13, not that occasioned by the scheme as a whole (see paragraphs 3-6 in the judgment of Maurice Kay J in Burnip referring only to the Housing Benefit provisions and not the provisions for DHPs when he dealt with discrimination, and paragraph 47 in MA).

The difficulty with this is, of course, the evidence required to show that DHP did operate in this way, that payments were being received by all those who required them because of their position.

As I noted in evidence to the Work & Pensions select committee, what evidence there is goes to show the opposite.

It is all going to make the Supreme Court decision very interesting. The discrimination is admitted, so I dont think the Secretary of State can resile from that. So the question was always justification, but there are suggestions in this judgment that a broad brush approach to justification by waving at the DHP scheme may not be enough. And now, the Secretary of State must also argue, in effect, that Burnip was wrong, and that even discrimination against narrow, easily recognisable classes should be justified by DHPs. Oh and that the DWPs completely contradictory position on best interests of the child is somehow resolvable without exempting households with children needing overnight carers from the bedroom tax.

No wonder the DWP folded on the issue of the overall benefit cap discriminating against the disabled by not exempting carers after losing the judicial review. Crude, blanket reforms throw up a host of problems (just as the DWP was repeatedly told that they would).