Disability and discrimination: a case for special treatment

Issue 226 (February 2012)

An argument for more favourable treatment for disabled people in social security, in particular in housing benefit, is currently before the Court of Appeal. Simon Osborne sets the scene.

Special treatment – the argument

The argument is that there are cases in social security when it is necessary to treat some people with different circumstances, for example people with disabilities, differently (more favourably) than others. In short, such people should be the beneficiaries of positive discrimination. As we shall see, the argument has arisen in particular with regard to the local housing allowance rules for housing benefit; but in theory at least it could apply to other benefits too. However, the argument has not been successful thus far.

The argument is rooted in human rights law. It is a development of the provision at Article 14 of the European Convention on Human Rights (‘the Convention’) prohibiting discrimination. In any case, that provision must be applied with some other article of the Convention, for example Article 1 of Protocol 1 (right to peaceful enjoyment of possessions) or Article 8 (right to respect for private and family life and home). Usually protection under Article 14 arises in the form of the right not to be discriminated against – ie, a right not to be treated less favourably than other people. But it has also been established that discrimination may be in a person’s favour, in that s/he may have a right to be treated differently – ie, more favourably than other people.

That was set out in a decision of the European Court of Human Rights, Thlimmenos v Greece [2001] 31 EHRR 15. The key part of that decision is at paragraph 44 where the Court says that, ‘The right not to be discriminated against...is also violated when States without an objective and reasonable justification fail to treat differently persons who situations are significantly different.’ The decision was acknowledged and approved (in a context other than social security) by the Court of Appeal in AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634.

The principle established in Thlimmenos has been used in arguments regarding disabled people and social security – ie, that disabled people should in some cases be treated more favourably than people without disabilities. Most of those have concerned the local housing allowance rules for housing benefit, and all have been unsuccessful in the Upper Tribunal. However, one of the decisions (and two others joined to it) is currently the subject of a further appeal to the Court of Appeal, and so an important domestic decision is forthcoming.

The argument in action – the case before the Court of Appeal

The case before the Court of Appeal is the claimant’s appeal against the decision of the Upper Tribunal in IB v Birmingham City Council v SSWP v EHRC (HB) [2011] UKUT 23 (AAC) (Bulletin 221, p12). It is listed before the Court as Burnip v Secretary of State for Work and Pensions. Joined to this appeal are two others involving similar points, Gorry v Secretary of State for Work and Pensions (see below) and Trengrove v Secretary of State for Work and Pensions. A hearing is expected late in March 2012.

In IB v Birmingham, the claimant was severely disabled and needed carers to stay with him overnight. Because of the way the housing benefit rules were written at the time, he could not qualify for the two-bedroom rate of the local housing allowance, as the carers could not be taken account of (the rules were amended in this regard from April 2011). The claimant argued that the failure of the rules to treat him differently was a breach of his human rights as a disabled person, namely under Article 14 of the Convention, read with either or both of Article 8 and Article 1 of Protocol 1. Reference was made to Thlimmennos.

But the argument that the relevant rules (regulation 13D(2) and (3) of the Housing Benefit Regulations 2006 and Schedule 3B to the Rent Officers (Housing Benefit Functions) Order 1997) were unlawfully discriminatory was rejected in the Upper Tribunal by Judge Howell. That was not, though, because the judge did not accept the potential applicability of the principle set out in Thlimmennos. In fact, he considered that principle had become settled law due to a later decision of the European Court, Stec v United Kingdom (2006) 43 EHRR 47. There, it was held at paragraph 15 that there could be unlawful discrimination where more favourable treatment would be required to ‘correct inequality’.

However, the judge did not consider that that applied here. Applying principles referred to by the Court of Appeal in AM (Somalia), the principal focus had to be on the question of whether the failure to treat the claimant differently was capable of ‘objective and reasonable justification’. For Judge Howell, it was: there was additional help for disabled people in the benefits system, and that system was ‘massive and complex’, with the matter of correction of any errors rightly left to the State. Therefore, there was no violation of Article 14. In short, although the claimant may have a potential right to be treated more favourably, the benefit rules at issue here were not unlawful because they were part of a complex system, and the State had to be permitted to make particular rules within that. The result was that the treatment of the claimant was justified. Whether that is right is now to be reconsidered by the Court of Appeal.

The argument in action – other cases

For now, the decision in IB v Birmingham must be regarded as the leading authority. Although the argument has been raised in subsequent cases before the Upper Tribunal, none of those have taken issue with it; on the contrary, it has been widely adopted. The result, of course, is that the argument has also failed to succeed in those other cases.

In KM v South Somerset District Council (HB) [2011] UKUT 148 (AAC) (Bulletin 222, p12), the argument again concerned the local housing allowance size criteria rules. The claimant was disabled and lived with her husband in a two-bedroom flat, the second bedroom being required because of the various equipment the claimant needed regarding her disability. She could not satisfy the rules for the two-bedroom rate, however, and was obliged to apply for discretionary housing payments. Judge Mark, in refusing the claimant’s appeal (which relied on Thlimmenos) in the Upper Tribunal, cited IB v Birmingham. He pointed in particular to the emphasis given there to the wide margin of appreciation given to the state in such matters. He also noted the existence of some relief in the form of discretionary housing payments. The claimant’s human rights were not breached.

IB v Birmingham was also specifically applied in another housing benefit case, RG v SSWP and North Wiltshire District Council (HB) [2011] UKUT 198 (AAC) (Bulletin 223, p17). There, the claimant and his wife lived with their three children, two of whom were disabled and had a generally accepted need for their own bedrooms. But the local housing allowance rules meant that the family could not qualify at the four-bedroom rate. Judge Turnbull rejected the argument that because of the needs of the disabled children the claimant had a right to more favourable treatment and that the failure to do so was in breach of the Convention. The case was sufficiently close to IB v Birmingham to mean that a similar conclusion, that failing to treat the claimant differently was objectively justified (and so not unlawful), had to be reached. The decision has been appealed further, and is now joined to the appeal in Burnip (ie, the one resulting from IB v Birmingham) as Gorry v Secretary of State for Work and Pensions.

The right to more favourable treatment argument was considered in a case regarding the assessment of capital for income support, CP v SSWP (IS) [2011] UKUT 157 (AAC) (Bulletin 223, p17). The claimant had Down’s syndrome, and following the death of her mother had substantial compensation paid to her. Her claim was refused on the basis that her capital exceeded the upper limit (it was accepted that on a direct application of the rules, the capital clearly was the claimant’s). On appeal to the Upper Tribunal, she argued that, applying Thlimmennos, the rules were in breach of the Convention in failing to treat her differently as a young disabled claimant who had lost a parent on whom she depended for care. But Judge Wikeley dismissed that, holding that the case was broadly akin to IB v Birmingham. Applying that case, bearing in mind the possibility of objective and reasonable justification and the complexity of the benefits system, there was no unlawful discrimination here.

What now?

Straightforwardly, arguments that, in the light of Thlimmennos, disabled claimants have a right to different treatment are at present very unlikely to succeed. Alternative arguments should also be advanced where possible. CP v SSWP (IS) does at least indicate that the argument may not be limited to housing benefit, but still the argument was rejected. However the reconsideration of IB v Birmingham by the Court of Appeal (in Burnip v Secretary of State for Work and Pensions) could change things. So the argument may still be made, and appeals lodged as necessary, with the outcome dependent (for the time being) on the forthcoming decision of the Court.


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