Changes coming into force
Cuts to Working tax credit
Under rules introduced on 6 April 2012, the couples working hours requirement for working tax credit has increased to 24 hours. According to new figures placed in the House of Commons library on 2 May 2012, HMRC says that, on 1 April 2012, 203,000 families with 449,000 children were working between 16 and 24 hours per week. The HMRC figures also show that less than 5% of the 212,000 couples with children who were affected by the change have been able to find additional hours of work, or alternative employment with longer hours, so as to avoid the cut to working tax credit. This means the April 2012 increase in the tax credit working hours requirement will affect more than 200,000 families. For comment see the Union of Shop, Distributive and Allied Worker’s website - “More than 200,000 working couples with children plunged into poverty by tax credit cuts” (click here for link).
Cuts to contributory-based ESA
On 1 May 2012 new rules introduced by the Welfare Reform Act 2012 mean that entitlement to contributory Employment and Support Allowance (‘ESA’) for claimants who are not assessed to be in the “support group” will be limited to a period of no more than 365 days. The time-limit applies retrospectively which means that those who have already been in receipt of the benefit for a year will lose their entitlement with immediate effect. By 2015/2016 the DWP estimates that the change will impact on 700,000 people. For comment see the Disability Rights UK’s press release ‘Disabled people living in poverty to rise as Government time limits support’ (click here for link ).
From 1 May 2012 the Welfare Reform Act 2012a lso prevents any new claims for contributory ESA on the grounds of youth.
Case law
In Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629 (Maurice Kay, Hooper LJJ and Henderson J) (click here for transcript), the Court of Appeal declared that ‘the size criteria’ which prescribes the number of bedrooms that a claimant can qualify for when a claim for Housing Benefit is made in the private rented sector was discriminatory on the grounds of disability as it did not make any allowance for the essential housing needs of severely disabled people, and that the Secretary of State had failed to establish any objective and reasonable justification for the discriminatory effect.
The issue arose from Mr Burnip's appeal against the decision of Upper Tribunal Judge Howell QC (IB v SSWP [211] UKUT 23 (AAC)). This was followed by Judge Jacobs in Trengove [2011] UKUT 172 (AAC) and by Judge Turnbull, [2011] UKUT 198 (AAC) in Gorry – who became joined as appellants in the Court of Appeal. 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. All three appellants suffered a shortfall in the amount of housing benefit paid because of the application of the size criteria to their claims, which meant that the additional room they needed due to their disability could not be taken into account.
The appellants relied on Thlimmenos v Greece (2001) 31 EHRR 15 to argue that there was a positive obligation on the State to make provision to cater for the significant difference (here, between a severely disabled person and an able bodied person) and relied on AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634 to show that such a positive obligation was in play in relation to the disabled. The Secretary of State primary submission was that this type of challenge could not succeed, as there was no example of the courts applying Thlimmenos so as to require a state to take positive steps to allocate a greater share of public resources to a particular group or person. Maurice Kay LJ said:
“Whilst it is true that there has been a conspicuous lack of cases post- Thlimmenos in which a positive obligation to allocate resources has been established, I am not persuaded that it is because of a legal no-go area. I accept that it is incumbent upon a court to approach such an issue with caution and to consider with care any explanation which is proffered by the public authority for the discrimination. However, this arises more at the stage of justification than at the earlier stage of considering whether discrimination has been established. I can see no warrant for imposing a prior limitation on the Thlimmenos principle. To do so would be to depart from the emphasis in Article 14 cases which, as Baroness Hale demonstrated in AL (Serbia) (at paragraph 25), is "to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification". I would apply the same approach to a Thlimmenos failure to treat differently persons whose situations are significantly different” (para 18)
On the question of justification, the Upper Tribunal had relied on the list of seven factors given by Elias LJ in AM (Somalia) when dismissing AM’s discrimination claim. Henderson J dealing with aspect of the case in Burnip said there were important differences between AM (Somalia)and the present appeals:
“Furthermore, there are in my judgment important differences between the circumstances of the present appeals and the position in AM (Somalia). First, these are not cases of immigration control, where as Elias LJ noted the courts are particularly reluctant to interfere in matters of policy. On the contrary, we are here concerned with a benefit (HB) the purpose of which is to help people to meet their basic human need for accommodation of an acceptable standard. Secondly, there is no question of a general exception from the normal bedroom test for disabled people of all kinds. The exception is sought for only a very limited category of claimants, namely those whose disability is so severe that an extra bedroom is needed for a carer to sleep in (or, in cases like that of Mr Gorry, where separate bedrooms are needed for children who, in the absence of disability, could reasonably be expected to share a single room). Thirdly, such cases are by their very nature likely to be relatively few in number, easy to recognise, not open to abuse, and unlikely to undergo change or need regular monitoring. The cost and human resource implications of accommodating them should therefore be modest, quite apart from the point that in some cases the effect of refusing the claim could well be to force the claimant into full-time residential care at much greater expense to the public purse. Fourth, for the reasons which I have already given, the extra assistance which can be provided by discretionary housing payments, valuable though it can be, falls far short of being an adequate solution to the problem. Finally, the fact that Parliament has now seen fit to legislate for cases like those of Mr Burnip and Ms Trengove, and to do so at a time of general economic hardship, may in my view reasonably be taken as recognising both the justice of such claims and the proportionate cost and nature of the remedy.
For all these reasons, I am satisfied that maintenance of the single bedroom rule is not a fair or proportionate response to the discrimination which has been established in cases of the present type, and that the defence of justification therefore fails. As to the relief which it would be appropriate to grant, I am in full agreement with the views expressed by Maurice Kay LJ.” (At paras [64]-[65]).
This is only the third case in which it has been held that a welfare benefit rule breached Article 14 – the previous cases being Francis v Secretary of State for Work and Pensions[2005] EWCA Civ 1303 (reported as R(IS) 6/06) – on the rules governing Sure Start Maternity Grants - whether exclusion of person caring for child under residence order was discrimination contrary to Article 14 of the Convention – (click here for link) and CJSA/2663/2006 – on the rules providing an exemption for students during the long summer break - whether references to partner was compliant with ECHR (click here for link). Desmond Rutledge acted as the junior for the second appellant.
For media interest in the case see: Inside Housing - 'Judgement to force changes to benefit rules' (click here). The Independent – 'Health News Families win housing benefit ruling over disabled needs' (click here) The Herald Scotland – ''Government loses benefits court battle' (click here).
