R (on the application of (1) SUSAN RUTHERFORD (2) PAUL RUTHERFORD (3) WARREN TODD (BY HIS LITIGATION FRIEND SUSAN RUTHERFORD) v SECRETARY OF STATE FOR WORK & PENSIONS : R (on the application of A) (Appellant) v SECRETARY OF STATE FOR WORK & PENSIONS (Respondent) & EQUALITY & HUMAN RIGHTS COMMISSION (Intervenor) (2016)
Keywords: Bedroom tax, PSED, Discrimination, Disabled Children, Vulnerable adults
The two cases brought together in this judgment both concerned appellants contending unlawful discrimination under art. 14 ECHR and the Public Sector Equality Duty (PSED) under s.149 Equality Act 2010. Both appellants lived in social housing and had had housing benefit payments reduced below the level of their rent, having been deemed to have a ‘spare room’ under the Housing Benefit (Amendment) Regulations 2012 (introducing the scheme colloquially known as the ‘bedroom tax’). A was a female victim of serious violence living in a housing scheme providing a ‘Sanctuary’ room for her protection. The Rutherfords were the grandparents of a severely disabled child (WT) who required an overnight carer. The regulations provided for exemptions for certain fixed classes of individual circumstances and both appellants argued that the failure to include their circumstances in the exempted categories discriminated against them on the grounds of sex (A) and disability (SR).
The Secretary of State contended that the appellants and others in similar circumstances were adequately provided for through the potential award of discretionary housing payments (DHP) by local authorities, the effect of which (in the Secretary of State’s contention) was to render the scheme as a whole, not discriminatory.
However the parties accepted that the regulation itself contained prima facie discrimination, so (following Burnip v Birmingham City Council  EWCA Civ 629,  PTSR 117 ) the issue for the court was whether the discrimination could be objectively and reasonably justified or whether it was manifestly without reasonable foundation.
A’s appeal on PSED grounds failed. It was held that the Equality Impact Assessment had broadly addressed the issue of gender based discrimination and that it was reasonable not to have specifically considered this very small and distinct group.
However both appellants succeeded on art. 14 grounds. A was considered to fall within a very small distinct group within the narrow class covered by the decision in Burnip. In the case of SR, the justifications advanced by the Secretary of State were held to be insufficient to justify the clear variance between the treatment of disabled adults requiring overnight care (an exempt group under the Housing Benefit Regulations) and disabled children requiring overnight care (not an exempt group in the regulations).
The case does not conclude the broader arguments regarding the ‘bedroom tax’ scheme as a whole.
The more fundamental arguments and broader cases have been considered in R (MA and others) v the Secretary of State for Work & Pensions  EWCA Civ 13,  PTSR 584, the appeal in which the Supreme Court is expected to be heard in March 2016. Leave was granted for appeals in this case and (if leave is given by the Supreme Court) they may well be heard with MA in March.
For the moment, this case has no practical effect because it is subject to appeal (and both individual claimants are receiving DHPs at present). If the Supreme Court confirms the conclusion reached here then the government will be required to amend the regulations (as it did following Burnip) to add “individuals on the Sanctuary scheme” (a very small group) and “disabled children requiring overnight care” (a larger but still relatively small group) to the list of exempted categories, in order to bring the regulations into compliance with the Human Rights Act.