Horizontal reduction in non-differentiated rent allowance to woman victim of domestic violence violates the ECHR

JUDGMENT

J.D. and Α v. United Kingdom 24.10.2019  (no. 32949/17 and 34614/17)

see here  

SUMMARY

The case concerned the applicants’ complaint that new rules on housing benefit in the social housing
sector (informally known as “the bedroom tax”) discriminated against them because of their
particular situations: the first applicant cares for a disabled daughter while the second is a victim of
domestic violence. Both live in specially adapted homes.

The Court held that the applicants were particularly prejudiced by the measure, which leads to a
reduction in rental subsidy if occupants have more bedrooms than they are entitled to under the
legislation, with the aim of incentivising them to move house.

It concluded that Discretionary Housing Payments (DHPs), which can make up shortfalls in rent,
allowed it to find that the difference in treatment in the first applicant’s case was justified.
However, that was not the case for the second applicant: she was part of another scheme whose
aim was to allow victims of domestic violence to remain in their homes and the DHPs could not
resolve the conflict between that aim and the aim of the bedroom tax, which was to incentivise her
to move.

PROVISIONS

Articl;e 14

Article 1 of the First Additional Protocol

PRINCIPAL FACTS

The applicants, J.D. and A, are two British nationals.

Both applicants live in social housing and receive housing benefit to pay their rent. After a new
regulation was introduced in 2012, their housing benefit was reduced because they were found to
have one more bedroom than they were entitled to under the regulation.

The first applicant, J.D., has a specially adapted property as she lives with her severely disabled
daughter. The two of them live in a three-bedroom property.

The second applicant, being at risk of extreme domestic violence, was included in a “Sanctuary
Scheme”, which also meant that there were some adaptions to her property, including the
installation of a “panic room” in the attic for herself and her son with whom she lives in a
three-bedroom house.

Both applicants applied for Discretionary Housing Payments (“DHPs”) to cover the shortfall in rent
following the introduction of the regulation in 2012 and received DHP awards on a temporary basis.
They began court proceedings over the housing benefit decisions on the grounds of discrimination,
arguing that the reduction in rent put them in precarious circumstances which were not remedied by
the discretionary payments under the DHP scheme. The cases went to appeal and then to the
Supreme Court, which delivered its judgment in November 2016, dismissing their claims.

The Supreme Court held that the lower courts had been right to apply the test of “manifestly
without reasonable foundation” for the discriminatory treatment of the applicants and essentially
found that the discretionary payment scheme had been appropriate to deal with their cases.

THE DECISION OF THE COURT…

Article 14 in conjunction with Article 1 of Protocol No. 1

The Court found that the substance of the applicants’ complaints called for them to be examined
under Article 14 and Protocol No.1 rather than under Article 8.

Outline of Convention and case-law principles

The Court reiterated that people caring for a disabled child with whom they had close personal links
and people, overwhelmingly women, who had suffered gender-based violence could claim the
protection of Article 14.

It also noted that any difference in treatment on the grounds set out in that provision was
discriminatory if it had no “objective and reasonable justification”. States not only had to avoid
discrimination but also had a duty to make sure that people in significantly different situations were
treated differently if necessary.

States had wide discretion (“wide margin of appreciation”) when introducing general economic or
social measures, but they should not lead to discrimination. Any difference in the treatment of disabled people or on account of gender would require “very weighty reasons” to be justified or to be found to be in accordance with the Convention.

The applicants’ case

The Court held that because of their situations the applicants had been particularly prejudiced by
being treated in the same way as other recipients of housing benefit whose payments had been
reduced. It noted in particular that the applicants occupied specially adapted premises and would
face hardship or, in the case of the second applicant, a risk to personal safety, if they had to move.

The Court then examined whether the failure to take account of the applicants’ difference had been
discriminatory. It had to consider whether there had been an objective and reasonable justification
for that treatment. In other words, the treatment had to purse a legitimate aim and there had to be
a reasonable relation of proportionality between the means used and the aim sought. It reiterated
that the authorities had to have given very weighty reasons for the measure in question.

It noted that the domestic courts had accepted that the aim of the measure – reducing State
expenditure by persuading people of working age in social housing with more bedrooms than
necessary to move into smaller accommodation – was legitimate. The applicants had also accepted
this to be the case in general terms.

Turning to the question of proportionality, the Court looked at the compatibility of the system as a
whole with Article 14, not only at the applicants’ individual circumstances.

The first applicant

The Court noted that any move would be disruptive and highly undesirable for the applicant. At the
same time, a move into smaller specially adapted accommodation would not be in fundamental
opposition to the recognised needs of disabled people who lived in such accommodation but did not
have a medical need for an extra bedroom.

The Court also held that the DHP scheme, while having disadvantages, such as being discretionary,
allowed local authorities to take decisions on an individual basis and had various safeguards, such as
having to be in line with the Human Rights Act and authorities’ Public Sector Equality Duty.
The Court read such requirements as meaning that the first applicant could not be refused DHPs if it
meant that her need for appropriately adapted housing was not met. Indeed, she had been awarded
DHPs for several years.

The DHP scheme thus amounted to a sufficiently weighty reason to satisfy the Court that the means
employed to implement the measure in question had a reasonable relationship of proportionality to
its legitimate aim. The difference in treatment of the first applicant was therefore justified and there
had been no violation of Article 14 in conjunction with Article 1 of Protocol No. 1.

The second applicant

The Court noted that the regulation’s aim to encourage people to move was in conflict with the
Sanctuary Scheme’s goal of allowing victims of gender-based violence to stay in their homes.

The impact of treating the second applicant or other people in Sanctuary Schemes in the same way
as others subject to the new housing benefit rules was therefore disproportionate as it did not
correspond to the legitimate aim of the measure. The Government had not provided any weighty
reasons to justify prioritising the aim of the scheme over that of enabling victims of domestic
violence to remain in their homes. The provision of DHPs, including the disadvantages the Court had
identified, could not correct that situation.

In the context of domestic violence States also had a duty to protect people from threats from
others, including in situations where an individual’s right to the enjoyment of his or her home free of
violent disturbance was at stake.

In conclusion the Court found that the second applicant had suffered a violation of her rights under
Article 14 in conjunction with Article 1 of Protocol No. 1.

Just satisfaction (Article 41)

The Court held that the United Kingdom was to pay the second applicant 10,000 euros (EUR) for the
non-pecuniary damage she had suffered.

Separate opinions

Judges Wojtyczek and Pejchal expressed a joint partly dissenting opinion.


ECHRCaseLaw

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