R (on the application of MA and Others) v Secretary of State for Work and Pensions and Others  EWHC 2213 (QB); (2013) PLLR 097
Housing - Benefit - Regulations
It was unlawful for the calculation of the level of housing benefit to be granted to be set out in guidance as opposed to secondary legislation.
30 July 2013
Laws LJ and Cranston J
(1) By this claim, the Claimants challenged the changes introduced to the Housing Benefit Regulations 2006 (‘the 2006 Regulations') by the Housing Benefit (Amendment) Regulations 2012 (‘the 2012 Regulations'). The measures complained about reduced the eligible rent provided by Housing Benefit where the number of bedrooms exceeded the number permitted in the 2012 Regulations. In effect, where there is one extra bedroom, rent is reduced by 14% and where there are two or more extra bedrooms, the reduction is 25%.
(2) The Claimants brought three grounds of challenge:
a. The measures were ‘unlawfully discriminatory because they fail[ed] to provide for the needs of people in [the position of the claimants]';
b. The measures violated the Public Sector Equality Duty (‘PSED'), required under section 149 of the Equality Act 2010; and
c. The Defendant employed unlawful guidance (set out in Circular HB/CTB U2/2013) to prescribe he means of calculating the appropriate maximum housing benefit for certain cases. It was contended that such a calculation was required to be done by secondary legislation.
(3) As to the PSED, the Claimant argued that there had been a failure to consider the impact of the Regulations on children, and there had been no analysis of disability-related matters.
(4) HELD: The Court stated that the primary question was whether the provision made by way of access to discretionary housing payments (‘the policy') constituted a proportionate approach to resolving the problems suffered by persons as a result of the amended housing benefit policy.
(5) As to ground A, the Court referred to Stec v United Kingdom (2006) 43 EHRR 47 in which it was emphasised that ‘A difference of treatment is, however, discriminatory if it has no objective and reasonable justification'.
(6) The Court held that the arguments against the policy being justified failed to consider the legitimate aims of the housing benefit amendments: to save public funds and amend the role of social security support in society. Where the issue of discrimination was to be resolved through the principle of proportionality, the issue of compliance with the PSED was closely linked.
(7) In relation to the submissions as to ground B, the Court rejected the argument that the Defendant had not considered the impact upon the disabled and children. Such an allegation was a challenge to the outcome of the procedure, under the guise of a challenge to the process. The Court held that the PSED had been properly fulfilled, and the impacts of the housing benefit limitations had been properly considered in accordance with the principle of proportionality.
(8) The refusal to exclude some persons with disabilities from the regime established by the 2012 Regulations was proportionate, unless it was shown to be without reasonable basis. The policy of providing extra discretionary housing payments was not a disproportionate response to the difficulties faced by the class of persons affected by the amendments to the 2012 Regulations.
(9) In relation to the status of the calculation of the benefit (ground C), the Court stated that it was correct that the only lawful means of calculating the benefit was through secondary legislation. It was also clear, as set out in the case of Burnip  EWCA Civ 629, that the Defendant was obliged to provide legislation that there would be no housing benefit deduction where an extra bedroom is required for children who are unable to share due to their disabilities. Until the 2012 Regulations were amended, the Court held that it was open to local authorities to follow the Defendant's guidance, as compliance with Burnip was not their responsibility.
(10) On the basis that new legislation might be imminent, the Court declined to make a declaration as to the lawfulness of the Regulations in relation to the calculation of the benefit.
Claim succeeded in part.
 - Issue A.
 - Types of discrimination.
 - Primary question.
 - PSED linked.
 - Challenge outcome.
 - Public sector equality duty.
 - Ground B.
 - Calculation.
 - Burnip.
 - Ground C.
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