Disability discrimination in housing benefits determinations

Burnip v Birmingham City Council & Anor (Rev 1) [2012] EWCA Civ 629 (15 May 2012)


Due to severe disabilities, the applicants required extra bedrooms to accommodate their special needs. However, their housing benefits were only calculated based on what would reasonably be required for able-bodied person.

The applicants successfully argued before the England and Wales Court of Appeal that this breached their right to freedom from discrimination.


Ian Burnip and Lucy Trengove, who were severely disabled, were assessed as requiring carers overnight and as such required two-bedroom flats. They were both entitled to housing benefits but their local councils calculated the housing benefits by reference to the one-bedroom rate which would apply to able-bodied tenants.

In somewhat different circumstances, Richard Gorry, his wife and their three children lived in a four-bedroom rented house. Two of the young girls had disabilities (one had Down’s Syndrome and the other Spina Bifida) so it was not appropriate for them to share a bedroom as would normally be expected. Nonetheless, the housing benefit was calculated with reference to the three-bedroom rate which would apply to the family if the girls were not disabled.

The three separate cases came to Court together and the key issue was whether the calculation of the housing benefits in each case amounted to unlawful discrimination pursuant to article 14 of the European Convention on Human Rights and Fundamental Freedoms which provides:

[t]he enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any grounds 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.

It is of relevance to note that a range of benefits, including discretionary housing payments, were, in principle, available to the applicants as a possible way to bring the gap between the housing benefits and the cost of an extra room. Also, an amendment to the social security legislation was subsequently introduced which provided housing benefits for “one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care”.


The Court of Appeal held that the applicants had established a prima facie case of discrimination pursuant to article 14 and the State had failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria for housing benefits. The reasons for its decision are as follows.

The Court noted there was no dispute that disability is clearly within the concluding words “other status” of article 14 and housing benefits falls within the ambit of article 1 of the First Protocol as a “possession” so these circumstances were covered by article 14.

Further, the Court noted article 14 “embraces a form of discrimination akin to indirect discrimination in domestic law”. However, the relatively non-technical drafting of article 14 avoids the legalistic requirements for indirect discrimination under domestic discrimination law (such as statistical evidence to identify correct comparators). Therefore, discrimination is established if a group recognised as being in need of protection (in this case, the severely disabled) is significantly disadvantaged by the application of ostensibly neutral criteria, subject to justification.

Having held the applicants fell within article 14, the Court then considered whether this discrimination was justified. In this regard, the Court confirmed the State must establish there was an objective and reasonable justification for the discriminatory effect of the relevant housing benefits criteria as they applied to the particular circumstances of the applicants. In other words, the State did not have to justify the scheme of housing benefits as a whole nor the general policy of calculating housing benefits in the private sector by reference to the number of occupiers. Instead, the State had to justify the difference in treatment resulting from the application of those criteria which have been held to infringe article 14.

In considering whether the discrimination was justified, the court noted there were a wide range of benefits available to the applicants that could potentially offset the cost of the extra room. However, the Court held that these benefits were not intended to help with their housing needs but rather their ordinary living expenses as a severely disable person. Also, whilst discretionary payments may be available, their duration and amount were unpredictable. Therefore, the Court held this was not an adequate justification for the discrimination in this case.

Moreover, when considering the relatively modest cost and human resource implications of accommodating such cases (given the very limited category of claimants with disabilities so severe they required an extra bedroom) and the fact that the legislation had now been changed to accommodate these kinds of cases, during times of general economic hardship, it could not reasonably be said that such discrimination was proportionate and just.

Application to the Victorian Charter

The right to freedom from discrimination is protected by section 8 of the Victorian Charter. This case confirms the decision of Thlimmenos v Greece (2001) 31 EHRR in which it was held that the right not to be discriminated against in the enjoyment of rights is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different and that this right imposes a positive obligation on the State to make provision to cater for the significant difference. Further, it confirms “a difference of treatment lacks objective and reasonable justification ‘if it does not pursue a legitimate aim or if there is not reasonable relationship of proportionality between the means employed and the aim sought to be realised’ “.

Of interest, the Grand Chamber in the matter of Stec v United Kingdom (2006) 43 EHRR 47 has remarked that there is a “margin of appreciation” enjoyed by the State arising from the fact that the State has direct knowledge of its society and its needs and as such is better placed, in principle, to appreciate the public interest on social or economic grounds. Accordingly, an international judge will “generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’”.

The decision is available online at: http://www.bailii.org/ew/cases/EWCA/Civ/2011/629.html

Susanna Kirpichnikov is a lawyer at Lander & Rogers.