By Katarina Frostell, Project Manager and PhD Candidate, Institute for Human Rights, Åbo Akademi University, Finland
On 24 October 2019, the European Court of Human Rights delivered its judgment in J.D. and A. v. the United Kingdom, in the so-called bedroom tax case. In its judgment, the Court applied a discrimination analysis on the reduction of housing benefits involving two single mothers, whose housing benefits were reduced following a change in the national housing regulations. The applicants argued that they should be treated differently than the mainstream recipients of the benefit due to their special circumstances linked to disability and gender-based violence. In the second case involving gender discrimination, the Court found with five votes to two, a violation of Article 14 in conjunction with Article 1 of Protocol 1 on the right to property. The Court dismissed the claims of discrimination on the grounds of disability in the first case. Two judges submitted a partly dissenting opinion.
In 2012, the Housing Benefit Regulations under the Social Security Contributions and Benefits Act were amended, enacting stricter eligibility criteria for housing benefits. Thus, to obtain full benefits the number of rooms compared to the size of the family was lowered, with the effect that the housing benefits of the two applicants were reduced by 14%. With reference to their special circumstances, the applicants argued that they should be able to stay in their homes without the reduction of their benefits. The first applicant cared fulltime for her severely disabled daughter. Their house had been designed to accommodate the special needs of the daughter, including wheelchair access. The second applicant’s former husband was, based on previous behaviour, considered extremely dangerous. To protect the applicant, the authorities referred her to the so-called Sanctuary Schemes, which supports victims of domestic violence to remain in their homes. Under the scheme, a special safe room was constructed in the house. In the event of an attack by the ex-husband, the applicant and her son could retreat to the room and from there contact the authorities. To cover the loss in the benefit payments, both applicants applied for Discretionary Housing Payments (DHP). The DHP is paid on a temporary basis and has a stricter means test and less attractive routes of judicial challenge compared to the Housing Benefit.
In the national proceedings, the courts grappled with the discrimination concept, that is, both the comparability and justification tests. Whereas the Court of Appeal concluded in the second case that unlawful discrimination had occurred, the Supreme Court dismissed both cases in a joint proceeding. The Court confirmed that the test used in the lower courts of ‘manifestly without reasonable justification’ was correct and that it had not been exceeded in the case. The then Deputy President of the Supreme Court, Lady Hale, dissented in favour of the second applicant. With explicit reference to Thlimmenos v. Greece, she stated that ‘treating her [the applicant] like any other single parent with one child when in fact she ought to be treated differently was discriminatory’. She continued by observing that ‘For a woman in a Sanctuary Scheme to have to endure all those difficulties and uncertainties on top of the constant fear and anxiety in which she lives cannot be justified’. In its submission, the Government argued that ‘the principle in Thlimmenos cannot require a State to take positive steps to allocate a greater share of public resources to a particular person or group’ (para 76).
With respect to the comparability test, the Court assessed whether the failure to treat the applicants differently because of their particular circumstances linked to disability and gender produced disproportionately prejudicial effects. The Court answered this question positively by observing that ‘the consequence of the measure was much more severe for the applicants than for others whose entitlement to Housing Benefit was reduced’ (para. 92). It then continued by assessing the justification arguments put forward by the Government, including the need to curb public spending. In so doing, the Court stressed the necessity to look at the welfare system as a whole, rather than only at individual acts and circumstances of the applicants. In the case concerning the mother with a disabled child, the Court found that the availability of the DHP amounted to a sufficiently weighty reason that satisfied the requirements of proportionality between the means employed and the legitimate aim pursued. Thus, despite admitting that differential treatment of people with disabilities requires ‘very weighty reasons’ (para. 89), the Court seems, nevertheless, to apply a lower standard in the instant case.
With respect to the applicant facing risks of violence, the Court paid attention to the legitimate but conflicting aims of the revised Housing Benefit Regulations and the Sanctuary Scheme, where the former promoted moving into a smaller apartment and the latter staying in the original home. The Court noted that treating the applicant in a Sanctuary Scheme in the same way as any other Housing Benefit recipient was disproportionate in relation to the legitimate aim of the contested measure. The Government failed to provide any weighty reason to justify why the aim of the Housing Benefit Scheme should be given priority over that of the Sanctuary Scheme.
In addition, the small and easily identifiable group of persons affected (120 persons) and the explicit duty of the state to protect victims of domestic violence were emphasised in the Court’s reasoning. With respect to the justification test, the European Court of Human Rights observed that even if the State has a broad margin of appreciation in matters concerning social and economic policy, the ‘manifestly without reasonable foundation’ test can in a discrimination claim under the Convention only be used when assessing ‘a transitional measure forming part of a scheme carried out in order to correct an inequality’ (para. 88). This was not the case here and therefore the ‘very weighty reason’ test should be used.
The case addresses a number of important questions linked to the discrimination concept and the need to treat different situations differently in the context of gender-based violence and social and economic policy. The judgment contributes to the evolving jurisprudence on substantive equality. However, it also shows that there are still disagreements within the Court on how to apply the right to non-discrimination. The dissenting judges clearly advocate for a more formal approach to discrimination, including a symmetrical comparability test.
Even if the comparability test is a useful starting point for claims of discrimination, the Court’s previous case law (see Opuz v. Turkey), supported by academic writings, show that the test can be difficult to apply in practice, not least in cases addressing gender discrimination. The dissenting judges criticise the majority ruling for not delimiting ‘with precision the class of persons which is treated similarly in spite of being in different situations’. Rather than applying a strict comparability test, the Court approaches the question from a disadvantage analysis where emphasis is placed on the harm or prejudicial effect that the practice has on women. In other words, the Court views domestic violence in its broader social context (see Balsan v. Romania). This supports the view that a key essence of the right to non-discrimination in Article 14 is to eliminate treatment that prevents vulnerable and other groups identified through the prohibited grounds to enjoy the ‘rights and fundamental freedoms set forth in the Convention’. In other words, the Court’s approach goes clearly beyond a formal equal treatment principle.
Further, the case addresses the challenging question of how to handle claims for different treatment. Whereas a claim for equal treatment usually includes the answer to how a situation should be treated, that is, in the same way as the norm, a claim for different treatment does not automatically provide a clear-cut answer. In the present case, this question becomes particularly intricate since the Court is dealing with social security benefits, a contested area typically allowing a broad margin of appreciation to the State. The Court has previously recognized the need for reasonable accommodation in discrimination cases involving disability (e.g. Cam v. Turkey), the present case addresses the need to provide social benefits in a case involving gender-based violence.
The Court’s positive stand in the case shows a willingness to safeguard substantive welfare claims under the Convention. In the instant case, it can be assumed that the Court’s conclusion was facilitated by the fact that the UK already offered the answer to how the different situation should be treated, that is, in the form of the Sanctuary Scheme programme. The Court did not have to come up with what measures should be adopted. Further, the small group affected probably also helped in reaching the conclusion, that is, the effect on the public finances was marginal.
Acknowledging the material limitation of the ECHR, a focus on specific programmes and general welfare legislation provided for at national level seems a sensible starting point for assessing requirements for different treatment. In addition, there is a clear need to explore how the special circumstances of vulnerable persons and groups could more fully be integrated in the application of the right to non-discrimination under the Convention. In this endeavour, the Court’s existing case law in the field of poverty and destitution could serve a useful point of reference.