Court of Appeal declares ‘size criteria’ in housing allowance rules to be incompatible with Article 14 of the ECHR due to lack of provision for the severely disabled

Tuesday 15 May 2012

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Desmond Rutledge appeared in the Court of Appeal case of Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629.

In a judgment handed down this morning, the Court of Appeal held that 'the size criteria' in regulation 13D(3) of the Housing Benefit Regulations 2006 was discriminatory as it did not make any allowance for the essential housing needs of severely disabled people who need an additional room due to their disability, and the Secretary of State had failed to establish any objective and reasonable justification for the discriminatory effect.

The 'size criteria' prescribes the number of bedrooms that a claimant can qualify for when a claim for housing benefit is made in the private rented sector. Two of the appellants (Mr Burnip and the late Lucy Trengove) were so severely disabled that they were assessed as needing the presence of full-time carers overnight. In the case of the third appellant (Mr Gorry) two of his children were disabled, one by Down's syndrome and the other by Spina Bifida, and so it was inappropriate for them to share a bedroom. In each case, the application of the 'size criteria' resulted in a shortfall in the rent, which the appellants obliged to find from their own income or by applying for discretionary housing payments.

On the issue of justification, the Court of Appeal distinguished the reasons given for rejecting the discrimination claim in AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634 and conclude that maintenance of the single bedroom rule was not a fair or proportionate response to the discrimination which had been established in cases of this type, and that the defence of justification therefore failed.

The second appellant (Rebecca Trengove acting on behalf of her late daughter Lucy Trengove's estate), was represented by Desmond Rutledge, instructed by Birmingham Law Centre (Jan Jenson). Desmond was lead by Richard Drabble QC.

Click here to read the full judgement.

This case has been reported in the Independent Inside Housing and on Garden Court Chambers blog.

Desmond is part of Garden Court Chambers Welfare Benefits Team.

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