-A A +A
Select color visibility that suits you Basic theme Dark theme Darker theme Text only

Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629 (15 May 2012)

Summary

Appeal court extra room ruling helps disabled

13 March 2013

In a unanimous ruling, the Court of Appeal has held that the size criteria in the housing benefit regulations discriminate against disabled people, because they do not allow for an additional room to be paid for where a disabled person has a carer, or where two children cannot share a room because of disability.

The decision concerned Ian Burnip and Lucy Trengove who needed 24 hour care, which required carers to work in shifts and Richard Gorry who has two disabled daughters who cannot share a room because of the nature of their disabilities.

Since the case began, the rules have been amended to cover the circumstances of Ian Burnip and Lucy Trengove, but not to cover the situation of Richard Gorry. This ruling is therefore most important where a room cannot be shared because of disability.

The issues in the case were

  • Whether the rules discriminate against the Appellant by comparison with a claimant in the social rented sector with two children who cannot share a room because of disability contrary to Article 14 taken together with Article 1P European Court of Human rights (ECHR). A tenant in the social rented sector would have all of his rent met by housing benefit, since housing benefit the social rented sector is not currently subject to restrictions under the size criteria (The government plans to change this under the Welfare Reform Bill with effect from April 2013).

  • Whether the rules discriminate on grounds of disability by comparison with a housing benefit claimant with two children of the same sex who were not disabled, whose HB met their full housing needs, contrary to Article 14 taken together with Article 1P ECHR.

  • Whether the rules discriminate on grounds of disability by failing to treat the claimant differently from a housing benefit claimant with two children who were not disabled, by not paying him an additional amount to cover a bedroom for each of them, contrary to Article 14 taken together with Article 1P ECHR.

The ruling states that there is a  'prima facie' case of discrimination for purposes of Article 14 of the ECHR, and that the Secretary of State had failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria.

Disability Rights UK warmly welcomes the important judgement that housing benefit must take into account the extra needs of disabled children and adults. Following Radar’s campaigning the Coalition Government announced that the Local Housing Allowance would cater for an extra bedroom for a live-in carer but the housing benefit measure totally undermined that commitment.

We congratulate the families for fighting this battle on behalf of many disabled people in the UK. The Equality and Human Rights Commission has shown their indispensable role in upholding the equality and human rights standards in this country.

You can view the decision on the bailii website.

You can find out more information in press releases produced by Child Poverty Action Group and Irwin Mitchell (solicitors) and Birmingham Law Centre blog.

Secretary of State's response

The Secretary of State applied for permission to appeal the decision to the Supreme Court on the grounds that the use of the size criteria in the Local Housing Allowance (LHA) is either not discriminatory or else can be justified.

Permission has been granted and the Supreme Court have listed the matter for hearing on 9 and 10 December 2013. Should the appeal succeed this would affect the decision in relation to Richard Gorry and his two disabled daughters.

The DWP has issued guidance, HB/CTB A6/2012, which suggests that lookalike cases should be suspended pending the outcome of the appeal.

The Secretary of State initially applied for permission to appeal the decision to the Supreme Court on the grounds that the use of the size criteria in the Local Housing Allowance (LHA) was either not discriminatory or else could be justified. The Government has now decided not to pursue the appeal and has instead issued guidance for Local Authorities (LAs) which allows an extra room for children who are unable to share because of their severe disabilities. This applies from the date of the Court of Appeal judgment on 15 May 2012, subject to the following guidelines.

7. When a claimant says that their children are unable to share a bedroom, it will be for LAs to satisfy themselves that this is the case, for example, a claim is likely to be supported by medical evidence and many children are likely to be in receipt of Disability Living Allowance (DLA) for their medical condition. In addition LAs must consider not only the nature and severity of the disability, but also the nature and frequency of care required during the night, and the extent and regularity of the disturbance to the sleep of the child who would normally be required to share the bedroom. In all cases this will come down to a matter of judgement on facts of each individual case.

8. It should be noted that the judgment does not provide for an extra bedroom in other circumstances, for example, where the claimant is one of a couple who is unable to share a bedroom or where an extra room is required for equipment connected with their disability.

9. LAs were previously advised that as a result of the Court of Appeal judgment they could suspend part of the award which allowed for the extra room. For any cases where the LA has suspended for this reason, the suspension can now be lifted and the claimant notified of the revised decision. Arrears must also be paid as appropriate.

10. The Court of Appeal judgment is now considered to be case law and as such LAs are legally bound to apply the judgment.
[Source HB/CTB U2/2013]