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Neutral Citation Number:	2011 UKUT 23 AAC
Reported Number:
File Number:	CH 2823 2009
Appellant:	Burnip v Birmingham City Council [2012] EWCA Civ 629
Respondent:	Birmingham City Council
Judge/Commissioner:	Judge P. L. Howell Q.C.
Date Of Decision:	13/01/2011
Date Added:	02/02/2011
Main Category:	Human rights law
Main Subcategory:	article 14 (non-discrimination)
Secondary Category:
Secondary Subcategory:
Notes:	Court of Appeal decision reported as [2013] AACR 7 Human rights – Article 14 – whether the failure of the housing benefit rules to differentiate in favour of disabled claimants is discriminatory The three appellants, all private tenants, each needed to occupy a property which contained one bedroom more than the number of bedrooms which the housing benefit legislation specified should be taken into account in determining their housing benefit entitlement. Mr Burnip and Ms Trengove were severely disabled and needed a second bedroom for an overnight carer, but their housing benefit was required to be calculated on the basis of the rent appropriate for a one bedroom flat. Mr Gorry’s housing benefit entitlement was required to be calculated on the basis that his two daughters would share a bedroom, but by reason of their disability it was not reasonable for them to do so. The appellants’ appeals against the amount of the housing benefit awards were dismissed by the First-tier Tribunal and then the Upper Tribunal. The appellants relied on unlawful discrimination contrary to Article 14 of the European Convention on Human Rights, in conjunction with Article 1 of Protocol 1 (A1P1). It was common ground in the Court of Appeal that (i) that the cases fell within the ambit of A1P1, in that housing benefit is a “possession” and (ii) that disability is within the concluding words “or other status” of Article 14. Held, allowing the appeals, that: 1. The appellants had established a prima facie case of discrimination within Article 14 on both the alternative bases for which they contended. First, the legislation had a disparate adverse effect on disabled people. Malcolm v Lewisham LBC [2008] UKHL 43, relied on by the Secretary of State, did not provide the correct approach; it turned on the construction of section 24 of the Disability Discrimination Act 1995. Further, in the particular circumstances the appellants’ case did not need to be based on statistical evidence. Secondly, the legislation failed to treat differently persons whose situations were significantly different, under the principle applied by the Strasbourg Court in Thlimmenos v Greece (2001) 31 EHRR 15. That principle could apply to require a State to take positive steps to allocate a greater share of public resources to a particular person or group; (paragraphs 10 to 18) 2. The Secretary of State had not established objective and reasonable justification for the discrimination. First, the wider benefits background, and in particular the other benefits to which the appellants (and in the case of Mr Gorry his family) were entitled, and the other elements involved in calculating the housing benefit entitlement, did not provide justification: it was wrong in principle to regard the appellants’ other subsistence benefits as being notionally available to go towards meeting the shortfall between their housing-related benefits and the rent. Secondly, it was not right to take into account the availability of discretionary housing payments. Thirdly, justification did not exist in a need to have a single set of rules applicable to all: the cost and human resource implications of making exceptions in the appellants’ and similar cases would be modest as such cases were likely to be relatively few in number, easy to recognise, not open to abuse and unlikely to undergo change or need regular monitoring. AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634 distinguished (paragraph 64). 3. The appropriate remedy for the Court of Appeal to grant was declaratory relief, leaving it to the Secretary of State to determine how to rectify the discrimination. Francis v SSWP [2006] 1 WLR 3202 applied (paragraphs 24). Note: the Court's Order as drawn up contained, in addition to a declaration, a provision remitting each case to the relevant council for reassessment of the additional sum “necessary to comply with this judgment and Article 14 for the period to which the appeal relates”.
Decision(s) to Download:	CH 2823 2009-00.doc [2013] AACR 7.ws.doc.rtf