R (MA and others) v Secretary of State and others [2013] EWHC 2213 (QB)

FACTS: This was the test case challenge to the government policy described in the press as a “bedroom tax”. This is a change to the Housing Benefit Regulations 2006 which caps housing benefit by reducing the eligible rent in cases where the number of bedrooms in the property let exceeds the number permitted. In short, if a person has more bedrooms than the government says they need, if they do not move they have their housing benefit reduced.

The challenge was brought on two main grounds. First, an allegation of unlawful discrimination against disabled people or their relatives. Second, breach of the public sector equality duty. JUDGMENT: The Court rejected both grounds of challenge. As regards the claim that the measure constituted unlawful discrimination against those with disabilities on the basis that this group had a need for a spare room for carers, the Court held that this was really a claim of indirect discrimination, ie wrongly treating disabled people in the same manner as non-disabled, and so failing to give effect to their difference to non-disabled people. One particular problem the court had with this argument was that the court found it extremely difficult to identify the minority of housing benefit claimants who were unable to share a bedroom due to the nature and extent of their disabilities. The court regarded this as material to whether indirect discrimination was shown, as the fact that there was no precise class of persons who needed extra bedroom space by reason of disability, which class could be identified in practical and objective terms and sufficiently differentiated from other groups equally in need of extra space for other reasons, was a powerful factor in the question of justification.

The public sector equality duty challenge was strongly rejected. The court reiterated that it was not for the courts to micro-manage the policymaking process, and said that here the claimant’s challenge looked like a list of objections to the policy under the guise of matters left unconsidered by the secretary of state.

The Court gave very little weight to the United Nations Convention on the Rights of Persons with Disabilities and the Article 19 tight to independent living.

COMMENT: It is not surprising that the Court was not willing to strike down such a prominent and flagship government policy. The failure of the public sector equality duty challenge follows the recent trend in this area. Almost all of the public sector equality duty challenges brought this year have failed. The tide seems to have turned decisively against this particular ground of challenge. Whereas previously courts emphasised the importance of embedding equalities thinking throughout decision-making, now courts talk more about not micromanaging EIAs.

It is notable that the Court was very dismissive of the reliance placed on the United Nations Convention on the Rights of Persons with Disabilities. This Convention had been the subject of significant judicial comment recently, most notably in Burnip [2012] EWCA Civ 629. It appears that the Court was keen to dampen that initial judicial enthusiasm for this Convention.