In recent years the courts have been called upon to determine whether controversial welfare policies, including the benefit cap and the so-called ‘bedroom tax, are compatible with the European Convention on Human Rights (ECHR). Challenges have centred on Article 14 which requires the government to justify the differential impact of welfare policies on particular groups of people. This necessarily raises questions about the appropriate role of judges in assessing the justification of political decisions about welfare benefits and what courts can achieve within the limits of their competence.
In this post I want to set out some brief thoughts on how courts can make a valuable contribution to a process of justification that makes use of their institutional strengths. In particular, I want to suggest, with reference to two recent Article 14 welfare cases, that the individual focus of courts and their expertise in handling evidence make them well placed to assess the impact of general policies on certain groups of people. Courts can require the government to give greater attention to the needs of vulnerable individuals in the formulation of policy. In doing so, the courts do not usurp the policy-making function of the political branches nor do they threaten the broad socio-economic objectives to which the government is committed.
A good example is Burnip v Birmingham City Council  EWCA Civ 629 which involved a challenge to the regulations governing eligibility for housing benefit (HB). The Housing Benefit Regulations 2006 provided that HB claimants in the private sector were entitled to one bedroom for each of the following – a couple; a person who is not a child; two children of the same sex; two children under ten years of age; and a child. Where the number of bedrooms in a claimant’s home exceeded that to which they were entitled their HB was reduced. (This is the private sector equivalent of the so-called ‘bedroom tax’ which applies to HB claimants living in the social sector).
Two of the claimants were disabled adults who lived alone in 2-bedroom properties. Both required an additional bedroom for overnight carers but were deemed to be ‘over-occupying’ under the regulations. The third claimant had two children who were expected to share a bedroom under the regulations but could not do so because of disability. All three suffered a reduction in their HB and argued that this constituted unjustified discrimination on grounds of disability, contrary to Article 14 ECHR.
The Court of Appeal unanimously accepted this argument. Having found that there was prima facie discrimination, the court considered whether there was sufficient justification. The Secretary of State argued that the claimants received a variety of other benefits as well as Discretionary Housing Payments, all of which served to mitigate the impact of the regulations. For the Court of Appeal this explanation was insufficient. It was unrealistic to expect the claimants to use other benefits to help cover rent as they had been awarded to provide for other needs. Moreover, DHPs were an inadequate means of bridging the gap between HB and rent as they were discretionary in nature, of unpredictable duration, paid out of a capped fund, and, on the facts, could not be relied upon to cover the shortfall in rent. For all three claimants, DHPs, if awarded at all, failed to compensate for the reduction in HB.
In reaching this conclusion, the court performed a valuable role for which it was well-equipped. With its focus on the claimants before it, and its reliance on evidence, the court was well placed to the highlight the disproportionate impact of a general welfare policy on particular individuals. The weakness of the Secretary of State’s explanation suggested that little consideration had been given to the impact of the bedroom criteria on disabled people. The scheme was failing to provide for the (undisputed) housing needs of the claimants and the court was right to say so.
However, the court did not demand a particular solution. Declaratory relief was granted, leaving it to the Secretary of State to decide how to rectify the discrimination. The government was not required to abandon the policy as a whole nor its general objectives, but devise a scheme that was sufficiently attentive to the needs of the disabled claimants. Indeed, it had already taken steps in this direction by providing additional bedroom entitlement for disabled adults who required overnight care. Following Burnip, a further amendment allowed an extra bedroom for children who could not share. The result was a scheme which afforded greater protection to vulnerable HB recipients but did not compromise the broader socio-economic objectives to which the government was committed.
Another example of the courts making a valuable contribution to justification in the welfare benefits context is Mathieson v Secretary of State for Work and Pensions  UKSC 47. In Mathieson, the Supreme Court decided that the suspension of disability living allowance (DLA) from a disabled child after 84 days in hospital violated Article 14 ECHR.
The purported justification for the 84 day rule was that, as an in-patient at an NHS hospital, a disabled child’s needs were provided for by the health service. The Secretary of State argued that the state should avoid ‘double provision’ by providing DLA and NHS care. However, it was clear from the evidence that Mathieson’s disability-related needs were not fully covered by the NHS. The hospital relied on his parents to undertake his daily care with the family incurring additional expenses during the period in which Mathieson was in hospital. The suspension of DLA caused the family to suffer a shortfall of £7,000. Further evidence suggested that Mathieson’s case was not unique. A 2013 survey found that 99% of carers provided more or the same level of care when their child was in hospital compared to when they were at home, and 93% incurred increased costs. The Secretary of State provided no evidence in response.
It was clear from the (uncontested) evidence that the 84 day rule was causing particular hardship for the Mathieson family and that there were many others in a similar situation. The suspension of DLA was based on the assumption that disabled children in hospital were having their needs fully provided for by the NHS, but this assumption was demonstrably false. With the evidence before it, the court was well placed to conclude that the 84 day rule had not been justified. Again, the court did not dictate a particular response from the government. The court confined itself to a finding that Mathieson’s rights had been violated, leaving it to the Secretary of State, as the policy-maker, to decide whether the 84-day rule ought to be scrapped or whether adjustments could be made. In reaching the conclusion it did, the Supreme Court exposed a flawed justification and afforded protection to a vulnerable individual.
Public Law PhD Candidate, Glasgow University