Court of Appeal (Civil Division)
 EWCA Civ 29
27 January 2016
Other international provisions:
European Convention on Human Rights, Article 14: Prohibition of discrimination
Human Rights Act 1998 Section 149
Equality Act 2010 Section 123
Social Security Contributions and Benefits Act 1992
Housing Benefit Regulations 2006 (SI 2006/213)
Housing Benefit Regulations 2006 (SI 2006/214)
Housing Benefit (Amendment) Regulations 2012 (SI 2012/3040)
The Housing Benefit (Amendment) Regulations 2012 (the ‘Regulations’) resulted in the reduction of housing benefit allocated to persons living in accommodation where the number of bedrooms exceeds the number ‘required’ according to a specific government formula. Regulation 13B updated this formula to allow for the allocation of an additional bedroom for certain defined classes of persons.
SR is the grandmother of W, 15, who suffers from Potocki-Shaffer Syndrome, a rare genetic disorder. SR is married to PR, who assists her in caring for W, who also requires round-the-clock care from two carers. Each carer needs a bedroom to sleep in during overnight shifts, in accordance with the recommendations of a medical assessment. They live in a specially-adapted three-bedroom house provided by the Pembrokeshire Housing Association, SR and PR could not cope otherwise. They have been informed that there are no other properties available which would be suitable for their needs.
Regulation 13B allows for additional accommodation for overnight carers looking after disabled adults but does not extend this same consideration for the overnight carers of a disabled child. Upon the introduction of the ‘Regulations’, SR, who had been receiving housing benefit to cover the full rent on the home, saw a 14% reduction in her allocated housing benefit as a result of Regulation 13B. Discretionary housing payments (DHPs)* have been covering this reduction in housing benefit. The Secretary of State believes that disabled children living with parents or guardians do not require separate provision for overnight carers; in contrast, such provision for disabled adults enabled them to live independently in the community. When the Works and Pensions Select Committee recommended that such provision be extended to disabled children, the Secretary of State saw no need, claiming that the discrepancy would be covered by DHPs.
Issue and resolution:
Whether the failure to take overnight carers of disabled children into account for accommodation under Regulation B13 constituted unlawful discrimination on the grounds of disability, in light of the fact that such provision was made for children and for the overnight carers of a disabled adult. The court held that Regulation B13 was contrary to Article 14 of the European Convention on Human Rights insofar as it does not include disabled children who require overnight care within the defined class of persons end to additional accommodation.
In accordance with the decision in Mathieson v. Secretary of State for Work and Pensions, the Secretary of State should have had specific regard to the best interests of disabled children in similar positions to W as a primary consideration when devising the Regulations. The Secretary of State’s position regarding overnight carers for disabled children was unjustifiable in light of their position with respect to overnight carers for disabled adults. The Secretary of State argued that a distinction could be made between disabled adults and disabled children due to a desire to promote independent living for disabled adults. The Court stated that this approach did not take the best interests of the child as a primary consideration.
Although the Court accepted the position that the DHP was intended to provide the same sum of money under these circumstances, the existence of the DHP did not justify the differing treatment between disabled adults and disabled children because these two classes of individuals have essentially the same needs. Furthermore, evidence was submitted showing that the DHP could not be relied on in every instance where there was a need for accommodation for the carers of disabled children.
*Regulation 2 provides for the making of DHPs to those end to Housing Benefit and who appear to require further financial assistance. The authority making the payment has a discretion as to whether or not to make a payment in a particular case and as to the amount of the payment and as to the period for which the payment is to be made.
 It is clear from the decision in Mathieson v Secretary of State for Work and Pensions  UKSC 47,  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.
 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.
 It is important that the order to be made following this judgment can be finalised speedily in the light of the forthcoming Supreme Court hearing in MA. In these circumstances, we think it appropriate to cut through the detailed arguments that were addressed to us on the question of remedy. In both cases, we think that we should declare simply that “the Appellants have suffered discrimination contrary to Article 14 of the ECHR on the basis set out in the judgment of the court”.
Link to full judgement:
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