Appeal court extra room ruling helps disabled People
Burnip v Birmingham City Council & Anor  EWCA Civ 629 (15 May 2012)
3 August 2012
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.
You can view the decision on the bailii website.
Secretary of State’s response
The Secretary of State has 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. 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.