Published: 14 Jan 2020 | By Nicola Balmer
J.D. and A v UK
Forum: ECtHR Chamber
Case No.: 32949/17 and 34614/17
Judgment date: 24 October 2019
The two applicants are UK residents who receive housing benefit to pay their rent, and whose benefit was reduced by the introduction of the Housing Benefit (Amendment) Regulations 2012 (commonly known as the “bedroom tax”). Under the Regulations, which the UK Government designed to incentivise people with extra bedrooms to move to smaller properties, both applicants were considered to have one more bedroom than they were entitled to. The applicants claimed that the new rules discriminated against them on account of their particular circumstances.
The first applicant was allocated housing to live with her disabled daughter, and the house was accordingly modified to accommodate her daughter’s needs. The second applicant was allocated housing to protect her and her minor son from domestic violence, with specific adaptations made to the property to enhance their safety unrelated to the number of bedrooms (the second applicant was allocated a three bedroom property due to a shortage of two bedroom properties).
Having had their housing benefit reduced, both applicants applied for, and were awarded on a temporary basis, Discretionary Housing Payments (DHPs) to meet their subsequent shortfall in rent. Neither applicant was offered alternative smaller accommodation which would meet the specific needs of them and their children. The applicants contested the reduction in rental subsidy in the national courts on the grounds of discrimination – the first applicant on the basis of disability, and the second on the basis of gender. The Supreme Court ultimately dismissed their claims on the ground that the DHPs had been sufficient to discharge their concerns.
Before the ECtHR, the applicants complained that their respective reductions in housing benefit discriminated against them on the basis of disability and gender respectively, contrary to Art. 14 (non-discrimination) in conjunction with Art. 1 of Protocol No. 1 (protection of property).
Affirming Thlimmenos v Greece, App. No. 34369/97, 06.04.00, the Court accepted that the treatment of the applicants in the same way as other recipients of Housing Benefit violated their right not to be discriminated against due to the failure of the state to treat differently persons whose situations are substantially different. The applicants were found to be particularly prejudiced by the bedroom tax because of their need to remain in their specifically-adapted homes for reasons related to their vulnerable status.
The Court applied the test in Mazurek v. France, App. No. 34406/97, 01.02.00 that a difference of treatment based on a prohibited ground is discriminatory if: (i) it does not have a legitimate aim and; (ii) there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.
Finding that the aim of the bedroom tax was legitimate, the Court noted that “very weighty reasons” would be required to render proportionate the relationship between the aim sought and the means employed, given that the alleged discrimination was on the basis of disability and gender. It nevertheless concluded that the availability of DHPs demonstrated proportionality between means and aims in treatment of the first applicant but not the second, who was part of a scheme with the specific aim of allowing victims of domestic violence to remain in their homes. As such, DHPs were insufficient to resolve the conflict of this legitimate aim with the aim of the bedroom tax (to incentivise the second applicant to move from her home). In the context of domestic violence where states have a positive duty to protect people from threats of others, the Court therefore considered the bedroom tax disproportionate to its legitimate aim of curbing public expenditure.
It was therefore unanimously held that there had been no violation of Art. 14 in conjunction with Art. 1 Protocol 1 in respect of first applicant but found, by five votes to two, that there had been a violation in respect of the second applicant.
The Court awarded the second applicant €10,000 in non-pecuniary damages. The remainder of both applicants’ claims for just satisfaction were unanimously dismissed.
Whilst the majority of the ECtHR acknowledged that states have a wide margin of appreciation in applying Art. 1 of Protocol 1 in matters of economic and social policy, they ultimately were willing to challenge the prioritisation of the legislative aims of the bedroom tax over those of the domestic violence protection scheme. The basis for doing so was that the second applicant “would risk her personal safety” is she lost her home. However, the dissenting judges emphasised the existence of legitimate special needs in respect of housing as the relevant characteristic for the purpose of the Art. 14 discrimination test. Accordingly, they considered no distinction should be made between the two applicants; the bedroom tax was proportionate in applying to all persons who have demonstrated a need to remain in their specifically adapted homes for reasons directly related to their status, not merely those for reasons based on gender.