Abstract
Despite being ‘wrapped up in …ideological discourse,’ the UK’s recent statutory cap on Housing Benefit (a form of welfare payment aimed at helping unemployed or low-paid tenants pay their rent) has significantly affected the lives of ‘some of the most vulnerable members’ of society. Recent domestic case law has examined a range of rights-relevant issues, such as the legal definition of justifiable discrimination, equality, the nature of the overlap between fundamental rights, and the fluid scope of judicial deference and the margin of appreciation as these apply to human rights issues, especially those which are underpinned (or, perhaps more accurately, undermined) by socio-economic decision-making. Taken together the decisions provide fairly detailed guidance, if only very limited hope, for anyone seeking to argue that the various impacts of harsh austerity measures might amount to unlawful human rights infringements at national level. There is little sign that a meaningfully juridical right to adequate housing is being embedded in domestic law here, with judicial concern over preserving finite, scarce resources generally serving to ‘trump’ the various arguments put forward by housing rights advocates. As Grant has argued however,
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Notes
- 1.
Gomez and Thiele (2005).
- 2.
Gibb (2015), p. 2.
- 3.
See s. 134 of the Social Security Administration Act 1992. In the private rented sector, Housing Benefit is paid by way of a rent allowance. In Northern Ireland, at the time of writing, the cap on Housing Benefit applies only to the private rented sector, pending welfare reform in the region. See further http://www.niassembly.gov.uk/assembly-business/legislation/primary-legislation-current-bills/welfare-reform-bill/ (accessed 10.03.15).
- 4.
See Rolnik (2014) available http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13707&LangID=E (accessed 01.02.15); See Rolnik (2009).
- 5.
See Costa (2013).
- 6.
- 7.
Rolnik (2014) on how the ‘ruling paradigm of housing policies… focus(es) on housing finance as the main means of promoting home ownership..’ She argues that ‘full realization of the right to adequate housing, without discrimination, cannot be promoted solely by financial mechanisms and requires broader and more holistic housing policies and State interventions.’ (Available http://www.ohchr.org/Documents/Issues/Housing/A-67-286.pdf, accessed 12.02.15).
- 8.
Rolnik (2014). She also cited the cumulative effect of various socio-economic policies, which have served to gradually ‘erode one of the world’s finest systems of affordable housing.’
- 9.
Ibid.
- 10.
See also the domestic case law on homelessness and eviction proceedings, for example Kay v. Lambeth Borough Council; Price v. Leeds County Council, 8 March 2006, [2006] UKHL 10, where the House of Lords revisited Qazi v. London Borough of Harrow [2003] UKHL 43; Sheffield City Council v. Smart [2002] EWCA Civ 4 in the wake of the decision in Connors v. the United Kingdom, no. 66746/01, 81–84, (27 May 2004). The Court held that the decision in Connors was not incompatible with the majority view in Qazi i.e. that there was no need for a County Court review of Article 8 (2) (of the European Convention) issues in tenancy possession cases where legislation had clearly addressed the issue. A tenant might however still be able to rely upon Article 8 in exceptional cases where, as in Connors, domestic law was incompatible with Article 8 rights, or where it was possible to challenge a social landlord on public law grounds e.g. as an abuse of state power.
- 11.
Rolnik (2014). ‘For generations, being poor in the UK didn’t necessarily equate to being homeless, or to living badly housed and in permanent threat of eviction.’
- 12.
Gomez and Thiele (2005), p. 2.
- 13.
Fox-O’Mahony (2013), p. 157.
- 14.
Available at http://www.legislation.gov.uk/uksi/2013/2828/made (accessed 12.01.15).
- 15.
See also The Welfare Reform Act 2012 (available http://www.legislation.gov.uk/ukpga/2012/5/contents/enacted (accessed 14.01.15) which also introduced a more general ‘benefit cap’ limiting the level of welfare benefit payments for any family with children to £500 a week irrespective of family size.
- 16.
Gibb (2015), p. 2.
- 17.
Ibid., p. 8. As Gibb further notes, disabled persons are ‘massively over-represented in those affected by the bedroom tax.’ p. 10.
- 18.
See The 2013 Policy Guidance (available at https://www.gov.uk/government/publications/hb-circular-a172013-discretionary-housing-payments, accessed 23.03.15).
- 19.
Gibb (2015), p. 1. As Gibb observes, the policy has been given several other titles, by its opponents and supporters respectively. These include the ‘social sector size criteria’ and the ‘under-occupation charge.’ (p. 2).
- 20.
Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629 (15 May 2012).
- 21.
Ibid., per Kay LJ, para 1.
- 22.
The Housing Benefit Regulations 2006 focused upon the number of ‘occupiers’ present, defining them under Regulation 13 D (12) as: “the persons whom the relevant authority is satisfied occupy as their home the dwelling to which the claim or award relates except for any joint tenant who is not a member of the claimant’s household.” Regulation 13D (3) allowed one bedroom each for couples, a person who was not a child, two children of the same sex; two children under 10 year, or a child.
- 23.
Article 14 of the ECHR provides that: “The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
- 24.
Article 1 of Protocol 1 of the ECHR states that: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.’ See further REG (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311.
- 25.
Burnip [2012] Op cit., n 20, para 8.
- 26.
Stec v United Kingdom (2006) 43 EHRR 47.
- 27.
Ibid., para 51. Equally, ‘The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.’
- 28.
Thlimmenos v Greece (2001) 31 EHRR, para 44.
- 29.
Burnip [2012] op cit., n 20, para 15.
- 30.
Para 18 per Kay LJ who added (citing Baroness Hale in AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434 (paras 20–25) that such a methodology would offend against the spirit of Article 14, given the need ‘to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification.’
- 31.
Relying on the obiter opinion of Sales J in Reg (NM) v London Borough of Islington [2012] EWHC 414 (Admin), para 99.
- 32.
(2011) UKUT 74 (AAC) per Carnwath LJ, para 15.
- 33.
At para 19. The CRPD was adopted by the General Assembly on 13 December 2006, ratified by the United Kingdom on 7 August 2009 and by the European Union on 23 December 2010.
- 34.
(2009) 48 EHRR 54.
- 35.
The Grand Chamber was construing Article 11 (‘Freedom of Association’) of the ECHR via reference to the International Labour Organisation (‘ILO’) Conventions and the European Social Charter (‘ESC’) (para 85).
- 36.
(2010) 50 EHRR 28, para 185 on the issue of considering the definition and scope of discrimination against women (and violence against them). He added that ‘It seems to me that [The CRPD] has the potential to illuminate our approach to both discrimination and justification.’ (para 22).
- 37.
Following Francis v Secretary of State for Work and Pensions [2006] 1 WLR 3202.
- 38.
Para 26.
- 39.
See A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, para 68 (per Lord Bingham) and AL (Serbia) v Home Secretary [2008] UKHL 42, [2008] 1 WLR 1434, para 38 (per Baroness Hale).
- 40.
Para 52.
- 41.
Para 28.
- 42.
Para 29.
- 43.
On whether local authorities should take into account the care component of the Disability Living Allowance benefit, see the recent High Court decision in R (Hardy) v Sandwell Metropolitan Borough Council [2015] EWHC 890 (Admin).
- 44.
Para 45.
- 45.
Ibid. The payments were purely discretionary in nature; their duration was unpredictable; they were payable from a capped fund; and their amount, if they were paid at all, could not be relied upon to cover even the difference between the one and two bedroom rates of LHA, and still less the full amount of the shortfall.
- 46.
Para 47.
- 47.
Para 64.
- 48.
Para 64.
- 49.
[2014] EWCA Civ 13.
- 50.
Para 39.
- 51.
Humphreys v Revenue and Customs Commissioners [2012] UKSC 18, [2012] 1 WLR 1545.
- 52.
Para 77. ‘Choice’ was apparently evidenced by their ability to ‘enter living arrangements knowing that they may have to compromise to accommodate their needs. As well as making applications for benefits and DHPs, they are also able to negotiate with landlords and [local authorities], take proactive steps to find more suitable accommodation of the right size, take in a lodger, find work or increase hours of work.’ para 77.
- 53.
See The Equality Act 2010 in particular s 149 (1) (c) which creates a duty to ‘foster good relations between persons who share a relevant protected characteristic and persons who do not share it.’
- 54.
See s 149(7)—disability is classed as a protected characteristic.
- 55.
Para 16 (citing the then-newly elected Government’s Coalition Agreement 2010; They also promised to ‘promote decentralisation and democratic engagement, and [to] end the era of top-down government by giving new powers to local councils, communities, neighbourhoods and individuals.’)
- 56.
Para 21.
- 57.
‘Such an exemption would be difficult and expensive to deliver effectively, especially when Universal Credit was introduced. It would either be too broad brush or leave out many other equally deserving hard cases.’ para 23.
- 58.
Para 26.
- 59.
Impact Assessment and Equality Impact Assessments had also been carried out and these confirmed that approximately 660,000 Housing Benefit claimants were living in the social housing rented sector; of these, around 420,000 were disabled persons. With no ring-fencing of funding, local authorities were tasked with deciding which applicants should be afforded priority.
- 60.
Para 39.
- 61.
Para 46. Lady Hale had previously noted in Humphreys v Revenue and Customs Commissioners [2012] UKSC 18 (1) WLR 1545, para 19 that in a benefits case the test for justification would be the same irrespective of how discrimination might be characterised.)
- 62.
Para 49.
- 63.
Para 50.
- 64.
See further Bank Mellat v HM Treasury [2013] 3 WLR 179, para 44 per Lord Sumpton and Black v Wilkinson [2013] EWCA Civ 820, [2013] 1 WLR 2490.
- 65.
Para 60.
- 66.
Para 80.
- 67.
Para 68.
- 68.
Para 73.
- 69.
Para 77.
- 70.
[2014] EWHC 1631 (Admin).
- 71.
Para 61.
- 72.
Para 4. The term ‘bedroom tax’ was described as a colloquialism, and the MA case praised for its careful detailing of the ‘political and legislative background’ which had led to the need for welfare reform.
- 73.
Para 35. Dyson MR had stressed that “the effect of the 2012 Regulations (as amended) in conjunction with the DHP scheme on the position of disabled persons was well understood by Parliament.” (see MA, para 57).
- 74.
MA Ibid., para 80.
- 75.
Para 21.
- 76.
Para 38, citing Lord Bingham in R (Countryside Alliance) v AG [2008] AC 719 (para 45).
- 77.
Para 39 citing Lord Nicholls in Wilson v First County (No 2) [2004] 1 AC 816 (para 61).
- 78.
Para 47 ‘… the question being answered in MA was not the same as the question in the present case. As formulated by the Court of Appeal, the question in MA was whether the different treatment of the need for additional accommodation of disabled and non-disabled persons was justified. Here the question posed by the Claimants is whether the different treatment of able bodied persons with an ascertained need for an additional bedroom and a disabled child with the same ascertained need is justified.’
- 79.
Ibid., para 50.
- 80.
Ibid.
- 81.
Ibid., para 51.
- 82.
Ibid., para 57.
- 83.
Ibid., para 57.
- 84.
Ibid., para 59.
- 85.
Ibid., para 60. The report was based upon survey responses from 222 councils in England and Wales, and showed that Disability Living Allowance was wrongly being included in calculations on household income and that 59 % of disabled claimants had been successful in applying for a DHP, compared with 67 % of non-disabled people.
- 86.
[2013] EWHC 2490 (Admin), para 1.
- 87.
Ibid., para 1.
- 88.
It had already capped community care for those aged over 65, in 2008.
- 89.
These included a learning disability, attention deficit hyperactivity disorder, auditory processing difficulties and epilepsy.
- 90.
S. 29 of the National Assistance Act 1948 (which obliges local authorities to make arrangements for promoting the welfare of ‘permanently handicapped’ individuals); S. 2(1)(a) of the Chronically Sick and Disabled Persons Act 1970 extended this to include ‘provision of practical assistance for that person in his home’ where necessary to meet their needs; S. 47 of the National Health Service and Community Care Act 1990 requires local authorities to assess needs, and then decide upon service provision. See also s. 57 of the Health and Social Care Act 2001 on direct payments.
- 91.
See: ‘Fair Access To Care Services: Guidance On Eligibility Criteria For Adult Care’ (2003) (FACS) which set out four categories of need (critical, substantial, moderate and low) and the criteria for ‘severity’; its 2007 successor ‘Putting People First: A Shared Vision And Commitment To The Transformation Of Adult Social Care’ (“Putting People First”) aimed at promoting individualised budgeting for care and direct payments, and the revised 2010 Guidance ‘Prioritising Need In The Context Of Putting People First: A Whole System Approach To Eligibility For Social Care – Guidance On Eligibility Criteria For Adult Social Care’ (“Prioritising Need”). See also ‘Valuing People Now: A New Three-Year Strategy For Learning Disabilities’ (2009) on the importance of personalised programmes, choice and control for persons with learning difficulties, especially in respect of ‘own home’ accommodation. See in particular ‘Personalisation Reform and Efficiencies in Adult Social Care’ (2010) which posits that individuals can find ‘innovative, creative and cost-effective arrangements to meet their own assessed needs.’
- 92.
Ibid.
- 93.
Para 17.
- 94.
See R v Gloucestershire County Council ex parte Mahfood (1997) 1 CCLR 7, R v Gloucestershire County Council ex parte Barry [1997] AC 584, Savva v Royal London Borough of Kensington and Chelsea [2010] EWCA Civ 1209, R (JG and MB) v Lancashire County Council [2011] EWHC 2295 (Admin); [2012] 15 CCLR 167 and R (KM) v Cambridgeshire County Council [2012] UKSC 23; [2012] PTSR 1189.
- 95.
Para 19.
- 96.
Para 25.
- 97.
‘WeareSpartacus’ responded to the local government consultation on the proposed policy reforms with a highly critical 2012 report (‘Past Caring’) which warned that benefit shortfalls could compel many disabled persons into moving into residential care. (The court described this as ‘dramatic pessimism’—para 87).
- 98.
Para 77.
- 99.
Para 106.
- 100.
[2015] EWHC 890 (Admin).
- 101.
See s 3.8 of the 2013 Guidance.
- 102.
Para 30.
- 103.
See s 71(1) of the Social Security Contributions and Benefits Act 1992; See further The Discretionary Financial Assistance Regulations 2001.
- 104.
Para 41.
- 105.
EWHC 204 (Admin).
- 106.
Para 42.
- 107.
Para 46. See: R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311.
- 108.
See per Sedley LJ, para 74 Langely v Bradford Metropolitan District Council [2006] QB 380.
- 109.
Lord Dyson MR in MA, paras 39–40, stressed that the HB size criteria were essentially a ‘package’ and that DHPs were an important part of these.
- 110.
Para 48.
- 111.
Anufrijeva v London Borough of Southwark [2004] QB 1124.
- 112.
PTSR 643.
- 113.
33 EHRR 14.
- 114.
42 HRR 32.
- 115.
Para 51. See further R (Chester) v Secretary of State for Justice [2014] AC 271 SC where it was held that as a “general principle of Strasburg law under article 14 of the Convention…additional rights falling within the general scope of any Convention right for which the state has voluntarily decided to provide must in that event be provided without discrimination…” per Lord Manse JSC, para 63.
- 116.
Para 52.
- 117.
Ibid.
- 118.
Para 58.
- 119.
As set out in MA per Lord Dyson MR, para 80.
- 120.
Para 67.
- 121.
Fordham (2013), p. 386.
- 122.
Remiche (2012), p. 793.
- 123.
LJ Kay in Burnip (2012), para 19.
- 124.
Available http://www.bayefsky.com/themes/adequate_general_general-comments.pdf, accessed 21.03.15. See also General Comment 4: The Right to Adequate Housing (1991).
- 125.
Ibid. See also Leckie (1989), p. 525 for a detailed analysis of how a right to housing ‘occupies a permanent place on legal agendas from international to local levels’ yet still often struggles for meaningful ‘global realization.’
- 126.
Fordham (2013), p. 381. As Article 34(3) states; ‘In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices.’
- 127.
Ibid.
- 128.
Ibid.
- 129.
UKHL 66.
- 130.
Fordham (2013), p. 385.
- 131.
Steinberg (1975–1976), pp. 64–79.
- 132.
Fox-O’Mahony (2013), p. 158.
- 133.
See for example McCann v. The United Kingdom – 19009/04 [2008] ECHR 385 (13 May 2008); Marzari v Italy [1999] 28 EHRR CD 175; See however Bah v. The United Kingdom – 56328/07 [2011] ECHR 1448 (27 September 2011). See further Buyse (2006); See also Remiche (2012) on the ‘factual approach’ of the Strasbourg Court to the concept of the home, p. 795.
- 134.
See for example Yordanova and Others v Bulgaria [2012] 25446/06.
- 135.
Remiche (2012), p. 791.
- 136.
Ibid. These in turn underpinned the concept of a justified rights interference under Article 8 (2).
- 137.
Ibid.
- 138.
Ibid., p. 793.
- 139.
Nield and Hopkins (2013), p. 431.
- 140.
Ibid.
- 141.
Ibid., p. 442.
- 142.
Ibid., p. 443. Justification also differs between A1P1 and Article 8, with the former requiring only that ‘public interest’ be satisfied and the latter demanding that the rights-infringement in question be ‘necessary’ to ‘address a pressing social need.’
- 143.
Fordham (2013), p. 386.
- 144.
Nield and Hopkins (2013), p. 454.
- 145.
Rolnik (2014), p. 294.
- 146.
Ibid., p. 298.
- 147.
Leckie (1989), p. 560.
- 148.
Leijten (2013), p. 311.
- 149.
Ibid., p. 315. She further argues that almost all social security issues seem now to be protected as rights-bearing claims. This has in turn led to a fairly wide margin of appreciation, which (when taken together with the complicated, sensitive nature of many such cases) perhaps underscores the difficulties of enforcing such rights via a supra-national court system (Ibid., p. 349).
- 150.
Spano (2014), p. 2.
- 151.
See further King (2012), p. 2.
- 152.
Wolf (2006–2007), p. 270.
- 153.
Ibid., p. 294.
- 154.
King (2012), p. 2.
- 155.
Chenwi (2008), p. 137.
- 156.
Ibid.
- 157.
Spano (2014), p. 2.
- 158.
King (2012), p. 2.
- 159.
See further http://just-fair.co.uk/uploads/The_Right_to_Housing_FINAL_27.07.15_.pdf (accessed 01.06.15).
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Legislation
Chronically Sick and Disabled Persons Act 1970
Discretionary Financial Assistance Regulations 2001
Equality Act 2010
Health and Social Care Act 2001
Housing Benefit Regulations 2006
National Assistance Act 1948
National Health Service and Community Care Act 1990
Social Security Administration Act 1992
Social Security Contributions and Benefits Act 1992
Welfare Reform Act 2012
Strasbourg Case Law
Bah v. The United Kingdom – 56328/07 [2011] ECHR 1448 (27 September 2011)
Connors v. the United Kingdom, no. 66746/01, 81–84, (27 May 2004)
Demir and Baykara v Turkey (2009) 48 EHRR 54
Marzari v Italy [1999] 28 EHRR CD 175
McCann v. The United Kingdom – 19009/04 [2008] ECHR 385 (13 May 2008)
Okpisz v Germany (2006) 42 HRR 32
Opuz v Turkey (2010) 50 EHRR 28
Petrovic v Austria (2001) and 33 EHRR 14
Stec v United Kingdom (2006) 43 EHRR 47
Thlimmenos v Greece (2001) 31 EHRR 44
Yordanova and Others v Bulgaria [2012] 25446/06
UK Case Law
A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68
AH v West London MHT (2011) UKUT 74 (AAC)
AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434
Anufrijeva v London Borough of Southwark [2004] QB 1124
Bank Mellat v HM Treasury [2013] 3 WLR 179
Black v Wilkinson [2013] EWCA Civ 820, [2013] 1 WLR 2490
Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629 (15 May 2012)
Francis v Secretary of State for Work and Pensions [2006] 1 WLR 3202
Humphreys v Revenue and Customs Commissioners [2012] UKSC 18, [2012] 1 WLR 1545
Kay v. Lambeth Borough Council; Price v. Leeds County Council, 8 March 2006 [2006] UKHL 10
Langely v Bradford Metropolitan District Council [2006] QB 380
MA and others v The Secretary Of State For Work And Pensions [2014] EWCA Civ 13
Qazi v. London Borough of Harrow [2003] UKHL 43
R (Chester) v Secretary of State for Justice [2014] AC 271 SC
R (Countryside Alliance) v AG [2008] AC 719
R (D) v Worcestershire County Council [2013] EWHC 2490 (Admin)
R (Hardy) v Sandwell Metropolitan Borough Council [2015] EWHC 890 (Admin)
R (JG and MB) v Lancashire County Council [2011] EWHC 2295 (Admin); [2012] 15 CCLR 167
R (JS) v Secretary of State for Work and Pensions [2014] PTSR 643
R (KM) v Cambridgeshire County Council [2012] UKSC 23; [2012] PTSR 1189
R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311
R (Rutherford) v SSWP [2014] EWHC 1631 (Admin)
R (Turner) v London Borough of Barnet Housing Benefit Review Board [2001] EWHC 204 (Admin)
R v Gloucestershire County Council ex parte Barry [1997] AC 584
R v Gloucestershire County Council ex parte Mahfood (1997) 1 CCLR 7
Reg (NM) v London Borough of Islington [2012] EWHC 414 (Admin)
REG (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311
Savva v Royal London Borough of Kensington and Chelsea [2010] EWCA Civ 1209
Secretary of State for the Home Department v Limbuela & Ors (2005) UKHL 66
Sheffield City Council v. Smart [2002] EWCA Civ 4
Wilson v First County (No 2) [2004] 1 AC 816
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Diver, A. (2016). Putting Dignity to Bed? The Taxing Question of the UK’s Housing Rights ‘Relapse’. In: Diver, A., Miller, J. (eds) Justiciability of Human Rights Law in Domestic Jurisdictions. Springer, Cham. https://doi.org/10.1007/978-3-319-24016-9_14
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