The "bedroom tax" cap on housing benefit where claimants have more bedrooms in their home than they are deemed entitled to, is capable of infringing the European Conventin on Human Rights in some circumstances, the UK Supreme Court ruled today.

A seven judge bench gave its decision in a number of cases in which claimants alleged that their rights under the Convention, and/or the public sector equality duty on the Secretary of State under the Equality Act 2010, had been breached by the cap, contained in reg B13 of the Housing Benefit Regulations 2006.

One group, “the MA claimants”, either had disabilities or lived with family members who had disabilities, and claimed this gave rise to the need for an additional room. The Court of Appeal accepted that reg B13 had a discriminatory effect on some people with disabilities, but held that the discrimination was justified, and the claimants’ needs could be met as necessary through the discretionary housing payments (DHP) scheme based on individual assessments.

Separately, the Rutherford family succeeded before the Court of Appeal on the ground of disability discrimination where they required a regular overnight carer for their grandson with severe disabilities. A woman, A, who lived with her son in a sanctuary scheme house (accommodation specially adapted to provide protection for women under severe risk of domestic violence), succeeded in that court on the grounds of sex discrimination.

'The Supreme Court allowed the appeal of one of the MA claimants, refused the Secretary of State's appeal relating to the Rutherford family, but by a five to two majority (Lords Neuberger, Mance, Sumption, Hughes and Toulson, with Lady Hale and Lord Carnwath dissenting) allowed the Secretary of State's appeal in relation to A.

Giving the lead judgment, Lord Toulson said the Court of Appeal was correct to apply the test, for cases involving questions of economic and social policy of whether the discrimination was “manifestly without reasonable foundation”. How to deal with the impact of reg B13 on individuals with disabilities was a clear example of a question of economic and social policy; the housing benefit cap scheme was integral to the structure of the welfare benefit scheme.

The Secretary of State’s decision to structure the housing benefit cap scheme as he did was reasonable. However, some people with disabilities had a transparent medical need for an additional bedroom. This applied to both adults and children, and there appeared to be no reason to distinguish, as reg B13 did, between adult partners who could not share a bedroom because of disability and children who could not do so because of disability; or between adults and children in need of an overnight carer. The successful MA claimant was an adult who could not share a room with her husband due to her disabilities; the decisions in relation to her, and the Rutherfords, were manifestly without reason.

In relation to the other MA claimants, their need for an additional bedroom was not connected, or not directly connected, to their/their family member’s disability. Therefore, whilst there might be good reasons for them to receive state benefits to cover the full rent, it was not unreasonable for their claims to be considered on an individual basis under the DHP scheme.

Similarly, while A had a strong case for staying in her current house, there was no automatic correlation between being in a sanctuary scheme and requiring an extra bedroom: the reason she had an additional bedroom was that no two bedroom properties were available when she moved. The court had considerable sympathy for A, but her strong social and personal reasons for staying were unrelated to property size, and could be taken account of through the DHP scheme.

Regarding the equality duty, on the evidence the Secretary of State had properly considered the impact of the cap on individuals with disabilities, and had addressed the question of gender discrimination even if not in the context of sanctuary schemes, and no breach had been established.

Lady Hale and Lord Carnwath would have found for A. Her need was different in that it was not for extra space but to stay where she was. Gender based violence was a form of discrimination against women, sanctuary schemes provided protection and A’s reduction in housing benefit put at risk her ability to stay there and therefore constituted discrimination. It is not acceptable for A to endure the additional difficulties and uncertainties involved in obtaining a DHP. Lady Hale would also have held that there had been no assessment of the impact of reg B13 on victims of gender based violence.

Click here to access the judgments.