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Amount of local housing allowance where extra bedroom required due to needs of disabled person -

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Amount of local housing allowance where extra bedroom required due to needs of disabled person<

New Court of Appeal judgment

15 May, 2012


In a new judgment, the Court of Appeal has considered the amount of local housing allowance (LHA) where an extra bedroom was required due to the needs of a disabled person.

In Burnip v Birmingham City Council & Anor (Rev 1) [2012] EWCA Civ 629 (15 May 2012), the Court of Appeal considers appeals against three Upper Tribunal decisions -

  • CH/2823/2009< - which concerned a disabled full-time student who needed an extra bedroom for an overnight carer (Mr Burnip);
  • CH/851/2010< - which concerned a young disabled woman who also needed an extra bedroom for an overnight carer (Ms Trengove); and
  • CH/1312/2010< - which concerned a family with two disabled daughters, aged ten and eight, who needed separate rooms due to their disabilities (the Gorry family).

In each case, the Upper Tribunal rejected the claimant's argument that the failure of the relevant legislation to allow for LHA to cover the extra bedroom was discriminatory under Article 14 of the European Convention on Human Rights (ECHR) and, in each case, the claimant then appealed to the Court of Appeal.

* * * * *

Lord Justice Maurice Kay highlights that -

'The case for the appellants is not that the statutory criteria amount to indirect discrimination against the disabled. It is that, in one way or another, they have a disparate adverse impact on the disabled or fail to take account of the differences between the disabled and the able-bodied. In their skeleton argument and oral submissions, counsel for the appellants describe these ways of putting their case as 'complementary and overlapping' rather than mutually exclusive.' (paragraph 10)

Lord Justice Maurice Kay goes on to hold that the claimants had established a 'prima facie' case of discrimination for the purposes of Article 14 of the ECHR, and agrees with Mr Justice Henderson that the Secretary of State had failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria.

Lord Justice Maurice Kay also notes that the law has been changed from 1 April 2011 so as to allow LHA for an extra room where an overnight carer is required, although this does not apply in cases where the extra bedroom is required due to the needs of a disabled child or children.

In conclusion, having granted declaratory relief, Lord Justice Maurice Kay leaves it to the Secretary of State as to how to deal with the rectification of the discrimination in all three cases.

* * * * *

Welcoming the judgment, John Wadham, General Counsel of the Equality and Human Rights Commission, which intervened on behalf of Mr Burnip, said -

'Our intervention in the Burnip case has helped to ensure that all disabled people claiming housing benefit do not face indirect discrimination. If it was not for the Human Rights Act, disabled people may be more likely fall into rent arrears because they cannot afford the home that meets their needs and then face eviction.'

In addition, Alison Garnham, Chief Executive of the Child Poverty Action Group, which represented the Gorry family, said -

'We welcome the fact that the court has recognised the unfairness of the housing benefit rules. This is a tremendous victory for the rights of disabled people and their children. In this case it was clearly not possible for two children, one with Spina Bifida and another with Down Syndrome, to share a single bedroom with such different demands and needs. It’s absolutely right that the housing benefit system should respond to challenges like this, and it is clear discrimination if it does not.'

Burnip v Birmingham City Council & Anor< is available from the BAILII website.