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European Court of Human Rights rules against United Kingdom in ‘Bedroom Tax’ case

Related Member(s):
Karon Monaghan QC
Related Practice Area(s):
Public Law, EU Law

Joint press release from Hopkin Murray Beskine, Matrix Chambers and Doughty Street. 

Today the European Court of Human Rights has ruled, in the case of A v the United Kingdom, that the so called ‘bedroom tax’ unlawfully discriminates against vulnerable victims of domestic violence.

The application to the European Court of Human Rights was brought by a woman known only as ‘A’ because her identity must be protected for her own safety. The case concerned the effect of the ‘bedroom tax’ policy on women living in ‘Sanctuary Scheme’ homes – properties which are specially adapted to enable women and children at serious risk of domestic violence to live safely in their own homes.

A is a victim of rape, assault, harassment and stalking at the hands of an ex-partner. Her challenge was to the UK Government’s reduction in housing benefit for ‘under-occupation’ of social housing, colloquially known as the ‘bedroom tax’. She claimed that the housing benefit regulations which introduced the scheme are discriminatory and have devastating consequences for her and her 11-year-old son. Under the ‘bedroom tax’, A and her son are only entitled to receive housing benefit for a two-bedroom property. However they live in a three-bedroom property which has been specially adapted for them by the police pursuant to a Sanctuary Scheme. This includes a panic space and extensive security measures. A’s housing benefit has been reduced by 14% because of the UK Government’s policy.

According to figures obtained in freedom of information responses from 79 local authorities, almost 1 in 20 households using the Sanctuary Scheme for people at risk of severe domestic violence have been affected by the under-occupancy penalty or bedroom tax, totalling 281 households across the country.  The vast majority of people in the Sanctuary Scheme are women.

In November 2016, a majority of the Supreme Court of the United Kingdom decided that, while the government had a positive obligation to provide Sanctuary Scheme housing for women who need it, there had not been unlawful discrimination. The European Court of Human Rights today disagreed with the Supreme Court and found that the ‘bedroom tax’ unlawfully discriminates against A and those in her position.

In its judgment, the European Court of Human Rights clarified the legal test applicable to discrimination claims in social security cases.  The Court explained that while Member States generally have a wide margin of appreciation in the context of economic and social policy measures, such measures must not violate the prohibition on discrimination.  Where a policy is introduced to correct an historical inequality (e.g. allowing widowers equal access to widows’ pension), the Court will only intervene if the policy is “manifestly without reasonable foundation”.  However, outside this context, because the advancement of gender equality is a major goal in the member States of the Council of Europe, “very weighty reasons” must be given before gender discrimination could be regarded as lawful.  The same applies to disability discrimination (paragraphs 87-89).

The Court found that A was particularly prejudiced by the ‘bedroom tax’ because her situation was significantly different from other housing benefit recipients because of her gender (paragraph 94).  The aim of the ‘bedroom tax’ (to encourage people to leave their homes for smaller ones) was in conflict with the aim of Sanctuary Schemes (to enable those at risk of domestic violence to remain in their homes safely).  The Government did not provide any “weighty reasons” to justify the discrimination, so it was unlawful.  The Court also noted that in the context of domestic violence, “States have a duty to protect the physical and psychological integrity of an individual from threats by other persons, including in situations where an individual’s right to the enjoyment of his or home free of violent disturbance is at stake” (paragraphs 103-105).

Ann Bevington of Hopkin Murray Beskine Solicitors, who act for A, said:

“These changes to housing benefit have had a catastrophic impact upon vulnerable people across the country.  Our client, whose life is at risk, has suffered great anxiety as a result of the bedroom tax and the uncertainty about this case.  She lives in a property which has been specially adapted by the police, at great expense, to protect her and her child.  The prospect of having to move another property (where she will not have any of these protections) or take in a lodger has loomed large for her during the six years it has taken this case to reach this stage. She is a vulnerable single parent who has been a victim of rape and assault.  She is delighted that after such a long battle, the European Court of Human Rights has recognised the impact that the bedroom tax is having on her and others like her.

 An investment has been made in keeping these vulnerable women safe and to move families in these circumstances out of their homes is a false economy as it will cost further money to provide security as the new property, and this may provide a reduced level of safety, putting them at risk.  It is important to remember that on average two women every week are killed by a current or former partner in England and Wales – protecting abused women and their children is a matter of life and death, and we should always remember this.

 We now call on the Secretary of State to take swift action in response to today’s ruling, and to change the rules to exempt from the bedroom tax the small but extremely vulnerable class of women and children who need the safety of a sanctuary scheme whilst they try to rebuild their lives after surviving domestic violence.”

 NOTES FOR EDITORS:

  1. ‘A’ is represented by solicitors Rebekah Carrier and Ann Bevington, Hopkin Murray Beskine Solicitors, and barristers Karon Monaghan QC, Matrix Chambers, and Caoilfhionn Gallagher QC and Katie O’Byrne, Doughty Street Chambers. Any inquiries should be directed to Ann Bevington at ab@hmbsolicitors.co.uk or 020 7272 1234.
  2. An order for anonymity is in place in relation to A and her son. She will not be making any comment and is not available to speak to the media.  No information should be published or revealed which would be likely to lead to the identification of A or any member of her family. However, A’s solicitor, Ann Bevington, will answer any queries and is available for interview.
  3. The application challenged regulation B13 introduced into the Housing Benefit Regulations 2006, which sees housing benefit reduced by 14% for families deemed to have one extra bedroom or by 25% for families deemed to have two extra bedrooms. The provision came into force on 1 April 2013.
  4. In the domestic courts, A’s claim was unsuccessful in the High Court (R (A) v Secretary of State for Work and Pensions [2015] EWHC 159 (Admin)), but successful on the discrimination ground in the Court of Appeal (R (Rutherford and Others) v Secretary of State for Work and Pensions; R (A) v Secretary of State for Work and Pensions [2016] EWCA Civ 29). The Secretary of State appealed the Court of Appeal’s decision on the discrimination ground to the Supreme Court.  A cross-appealed the Court of Appeal’s finding on the public sector equality duty.  The Supreme Court heard the case with a number of disability-related challenges to the ‘bedroom tax’. In handing down judgment on 9th November 2016, the Supreme Court by a majority of 5 to 2 allowed the Secretary of State’s appeal in A’s case and found that there had not been unlawful discrimination against women (Carmichael) (formerly known as MA) v Secretary of State for Work and Pensions [2016] UKSC 58. The judgment of the Supreme Court is available here: https://www.supremecourt.uk/cases/docs/uksc-2014-0125-judgment.pdf
  5. The Equality and Human Rights Commission intervened in A’s case in both the Court of Appeal and the Supreme Court and made submissions to the European Court of Human Rights.
  6. A link to the judgment of the European Court of Human Rights is here: https://hudoc.echr.coe.int/eng#{“itemid”:[“001-196897”]} and the press release issued by the European Court of Human Rights can be found here: https://hudoc.echr.coe.int/eng-press#{“fulltext”:[“32949/17″],”itemid”:[“003-6545619-8654164”]}
  7. A’s application was considered by the European Court of Human Rights at the same time as the appeal in JD v the United Kingdom, brought by an applicant who lived in a home specially adapted for her severely disabled daughter’s needs. No violation was found in JD’s case.
  8. The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. It is not an institution of the European Union.