Final Version available in the Journal of Social Security Law: Meers, J, ‘Panacean payments: the role of discretionary housing payments in the welfare reform agenda’ J.S.S.L. 2015, 22(3), 115-129 Panacean Payments: The Role of Discretionary Housing Payments in the Welfare Reform Agenda Jed Meers Subject: Social Security, Housing, Human Rights. Key Words: Discretionary Housing Payments, Social Sector Size Criteria. Since its introduction in 2001, the Local Authority administered Discretionary Housing Payments scheme has evolved from a small scale form of discretionary relief, to the principle exemption mechanism for many of the reforms stemming from the Welfare Reform Act 2012. Although their use was designed in part to provide flexibility and avoid the juridification of welfare reform agenda, the courts have gradually cast a role for these payments in the prevention of unlawful discrimination which is impossible for them to achieve in their current form. This paper examines the evolution of the judicial treatment of these payments and looks forward to how their future scrutiny may affect the legacy of the Coalition Government’s, and the future efficacy of the Conservative Government’s, welfare reform agendas.
Transcript
Final Version available in the Journal of Social Security Law:
Meers, J, ‘Panacean payments: the role of discretionary housing payments in the
welfare reform agenda’
J.S.S.L. 2015, 22(3), 115-129
Panacean Payments: The Role of Discretionary Housing Payments in the
Welfare Reform Agenda
Jed Meers
Subject: Social Security, Housing, Human Rights.
Key Words: Discretionary Housing Payments, Social Sector Size Criteria.
Since its introduction in 2001, the Local Authority administered Discretionary
Housing Payments scheme has evolved from a small scale form of discretionary
relief, to the principle exemption mechanism for many of the reforms stemming
from the Welfare Reform Act 2012. Although their use was designed in part to
provide flexibility and avoid the juridification of welfare reform agenda, the courts
have gradually cast a role for these payments in the prevention of unlawful
discrimination which is impossible for them to achieve in their current form. This
paper examines the evolution of the judicial treatment of these payments and looks
forward to how their future scrutiny may affect the legacy of the Coalition
Government’s, and the future efficacy of the Conservative Government’s, welfare
Earlier editions of this publication have already alluded to the increasing importance
of Discretionary Housing Payments (DHPs) since their inception in 2001:
highlighting the growing expectations of their capacity to mitigate the impact of
changes to social security,1 and the associated burden they have shouldered in
legal appeals.2 They now play a central role in the delivery of the welfare reform
agenda, and form the principal mitigation mechanism for many of the flagship
policies stemming from the Welfare Reform Act 2012, including the Social Sector
Size Criteria (SSSC) – more commonly known as the “bedroom tax” – alongside the
Benefit Cap, and changes to Local Housing Allowance. Their significance is unlikely
to fade following the reforms proposed in the Welfare Reform and Work Bill 2015;
especially following the proposed lowering of the Benefit Cap.
In the Coalition Government’s effort to avoid “standing back and imposing
something,”3 this “DHP strategy”4 introduced a layer of administrative discretion
into the delivery of the SSSC and the Benefit Cap in particular, with a great deal of
flexibility provided to local authorities in their underpinning regulations.5 This has
led to the DHP scheme growing exponentially from its humble beginnings in 2001,6
when these payments were introduced as a “very small”7 scale form of
discretionary relief distinct from the benefits system; numbers of awards were
modest, reaching approximately 2,000 annually in 2002/3.8 In 2013/14, this figure
1 S Rahilly, “The election of a coalition government and an austerity budget.” (2010) 17(4)
Journal of Social Security Law 207. 2 G McKeever, “Social sector size criteria. Journal of Social Security Law.” (2015) 22 Journal
of Social Security Law 13, 14. 3 Oral Evidence taken before the Work and Pensions Committee (12 February 2014), Q 564,
<http://data.parliament.uk/writtenevidence/WrittenEvidence.svc/EvidenceHtml/6101>; HC
720 of 2013-14, last accessed 19 April 2015. 4 Oral Evidence taken before the Work and Pensions Committee (12 February 2014), Q 490,
<http://data.parliament.uk/writtenevidence/WrittenEvidence.svc/EvidenceHtml/6101>; HC
720 of 2013-14, last accessed 19 April 2015. 5 Principally under the Discretionary Financial Assistance Regulations 2001. 6 Established under s.69-70 of Child Support, Pensions and Social Security Act 2000. 7 P Kemp, Housing Allowances in Comparative Perspective (Policy Press 2007) 113. 8 A Leicester and J Shaw, “A Survey of the UK Benefits System” (IFS, 2003)
<http://www.ifs.org.uk/ff/benefitsurvey.pdf> accessed 19 April 2015.
had risen to 392,453.9 No longer simply focused on providing temporary, low-level
payments in limited cases of hardship, DHPs have become the only viable
mitigating mechanism for many of those affected by the Coalition Government’s
flagship welfare reforms. Following the Conservative Government’s budget on 8th
July 2015, their use is set to grow further, with £800million earmarked for DHPs
across the course of the next Parliament.10
Given their shifting role and the central place these payments occupy in delivering
the welfare reform agenda, the function they serve has been subject to a great deal
of judicial scrutiny. They have generally been accorded a strong palliative effect by
the courts in the assessment of proportionality, and have proven to be the lynchpin
for the continued legality of a number of the Coalition Government’s flagship
welfare policies. However, there is an inherent irony which emerges in their judicial
treatment. The underpinning regulations for the SSSC and the Benefit Cap grant
few statutory exemptions, seemingly in a bid to avoid enforceable legal rights and
consequent “juridification of welfare.”11 However the courts have carved a function
for DHPs which attempts to re-create the effect of such statutory exemptions in
certain circumstances. It is argued here that: (1) many of the key assumptions
made about DHPs in the case law are misguided or lack sufficient evidence to
support them, and that (2) the scheme in its current form cannot serve the role it
has been cast in the welfare reform agenda.
The discussion is split into three sections. The first looks at the underpinning DHP
regulations and how the scheme has evolved from its more modest origins into its
current function. The second looks at the way in which the Courts have treated the
9 D Evans, “Use of Discretionary Housing Payments” (Department for Work and Pensions,
Payments Grants Amendment Order 2005/2052, and Discretionary Housing Payments
Grants Amendment Order 2004/2329.
is provided to local authorities in using the scheme as a form of mitigating
mechanism from the welfare reform agenda– namely, how can they decide what
criteria to apply, what limits are there on the level of payments they can make, and
whether tenants can appeal the decisions made?
There are two broad areas of statutory control. Firstly, there are limits on the
amount of money which can be spent by the local authority on awarding DHPs. The
finance for these payments is provided by central government to individual local
authorities, and it is entirely at the discretion of the Secretary of State for Work and
Pensions how much is provided to each area.18 At present, the DWP allocates the
DHP pot in line with a formula directly proportionate with various welfare reform
impact measures and previous base-line DHP expenditure.19 Local authorities, once
allocated this pot, have limited opportunities to apply for ‘top-up’ funding at the
discretion of the Secretary of State; however, this has been a small exercise with
very limited funds, described by industry figures as ‘futile.’20 The only other option
is to top-up the grant using their own finances, but this is limited to 2.5 times the
original DWP allocation.21
Other limitations are imposed on local authorities on the amount which can be
awarded in individual cases and certain conditions any applicants must meet.
Payments can only be made to those receiving housing benefit (or universal credit)
to cover the undefined area of “housing costs” (which case law has indicated can
include rent arrears, removal costs, deposits etc)22 which are not otherwise met by
their benefits. More determinative is what the money cannot be spent on, which is
outlined in reg.3 of the Discretionary Financial Assistance Regulations 2001
(above). These regulations detail that in cases where the local authority is meeting
an ongoing rent-liability (as would be the case in awarding a DHP in response to the
18 Reg.2 Discretionary Housing Payments (Grants) Order 2001/2340. 19 See HB Circular S1/2015. 20 P Apps, “£35million DHP top-up futile” (Inside Housing 2013) available at
June 18, 2015]. 21 Reg. 7 Discretionary Housing Payments (Grants) Order 2001/2340. 22 See R (Gargett) v Lambeth London Borough Council [2008] EWCA Civ 1450
application of the SSSC), then the total awarded by DHPs cannot exceed the eligible
rent for the property,23 and payments cannot cover certain exempted areas (such
as benefit sanctions, increases in rent due to arrears or service charges).24
Aside from this, and despite a stream of guidance flowing out of the DWP, local
authorities are left largely to their own devices to decide how to make DHP awards,
bound only by the general principles of public law. The payment of DHPs is distinct
from the payment of housing benefit. Though there is a right to a written decision
with stated reasons25 and to seek review,26 the payments fall outside of para.6 of
schedule 7 to the Child Support, Pensions and Social Act 2000 and are therefore
outside of the jurisdiction of a First-tier Tribunal.27
Panacean Payments: The treatment of DHPs in case-law
Although the statutory framework for DHPs has only been in existence since 2001,
the courts have had the opportunity to clarify the role for these payments
throughout a small number of public law challenges – principally in the assessment
of proportionality and equality duties.28 They have almost invariably been accorded
a strong palliative effect in favour of the policy under challenge (with the notable
exception of Burnip v Birmingham City Council29 discussed below).
Before the introduction of the Welfare Reform Act 2012, the much smaller DHP
scheme was considered as part of challenges to changes to Local Housing
Allowance under equality duties imposed under the Sex Discrimination Act 1975,
Race Relations Act 1976 and later the Public Sector Equality Duty (PSED) under
23 See regs.12-12D of the Housing Benefit Regulations 2006/213. 24 Reg. 3 Discretionary Financial Assistance Regulations 2001/1167. 25 See reg.6 of the Discretionary Financial Assistance Regulations 2001 (SI 2001/1167). 26 See reg.8 of the Discretionary Financial Assistance Regulations 2001 (SI 2001/1167). 27 This issue was considered as part of an appeal to the Upper Tribunal in EA v Southampton
CC [2012] UKUT 381 AAC. 28 Under the Public Sector Equality Duty (PSED) Equality Act 2010, or beforehand, under the
Race Relations Act 1976 and the Sex Discrimination Act 1975. 29 [2012] EWCA Civ 629.
s.149 Equality Act 2010. In CPAG v Secretary of State for Work and Pensions,30 the
introduction of definitive caps on Local Housing Allowance rates31 and a reduction of
the “largest dwelling category” from 5 to 4 bedrooms32 were challenged on the
basis that the Secretary of State had not had due regard to the impact this would
have on lone parents and ethnic minority populations.33 A similar challenge was
raised in R (Zacchaeus 2000 Trust) v Secretary of State for Work and Pensions,34
where restrictions to the uprating of LHA in line with Consumer Price Index inflation
measures were challenged under the PSED.
In both cases, DHPs were seen as being indicative of the Secretary of State having
due regard to the impact the measures would have on affected populations and in
satisfying his equality duties. Sullivan LJ held that DHPs “showed that the Secretary
of State had been aware of the particular difficulties which might be faced by
disabled people if they had to move home”35 and “in my judgment, he was right.”36
Other cases have also subscribed to the palliative effect of DHPs by providing them
weighting in the proportionality exercise in challenges based on Article 1 of the First
Protocol (Right to Property), read with Article 14 ECHR (Prohibition of
Discrimination). In R. (on the application of Knowles) v Secretary of State for Work
and Pensions37 DHPs contributed to the finding of proportionality when rent officers
set maximum rents under LHA for caravan sites38 – a change which was seen as
lawfully discriminatory against Romani Gypsies. Likewise, the availability of DHPs
were assessed in the finding of proportionality by a majority of the Supreme Court
in R. (on the application of SG) v Secretary of State for Work and Pensions,39 which
30 [2011] EWHC 2616 (Admin). 31 Under Article 2(3)(b)(iii) of the Rent Officers (Housing Benefit Functions) Amendment
Order 2010. 32 Under Regulation 2(6)(a) of the Housing Benefit (Amendment) Regulations 2010. 33 Under his equality duties pursuant to Race Relations Act 1976 and the Sex Discrimination
challenged the benefit cap on the basis of its discriminatory effect on women
(again, on the basis of Art.1 pt.1 and Art.14). The issue of discrimination resulting
for those suffering from domestic violence was quickly dismissed due to the
availability of DHPs to mitigate a problem that was described as being “inherently of
a temporary nature.”40
Challenges to the SSSC Regulations
This palliative effect present in the early cases has flowed into appeals against
elements of the Government’s welfare reforms. Although the provision of DHPs
stretches across multiple policies, the bulk of judicial consideration has been in the
context of challenges to the SSSC regulations. In short, the provision of DHPs is the
lynchpin which ensures the continued legality of the SSSC, so it is no surprise that
judgments challenging the policy by the Courts have been dominated by
consideration of them. Indeed, Dyson MR in R. (On the Application of MA) v
Secretary of State for Work and Pensions41 indicates that “if read in isolation and
without regard to the DHP scheme [the SSSC] plainly discriminates”42 against the
disabled, so it is necessary to analyse “the scheme as a whole.”43
The cases have turned principally on familiar arguments around discrimination
using the Article 1 of the First Protocol (right to property), which is now well
established as including housing benefit,44 or Article 8 (right to respect for the
home), to leverage the Article 14 (prohibition of discrimination). The first two
articles are principally used as purchase for engaging Article 14, so the differences
between their application do not warrant a detailed discussion this section. Instead,
the legal question of particular significance is how indirect discrimination can be
“justified” and the role of DHPs in this process. There are four key elements which
unite the cases on this issue
40 R. (on the application of JS) v Secretary of State for Work and Pensions [2015] UKSC 16
at [80]. 41 [2014] EWCA Civ 13. 42 ibid [39] (per Dyson MR). 43 ibid [40] (per Dyson MR). 44 See R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63.
Firstly, there is a common recognition that these policies are more than just a
conduit for austerity; the courts instead accept that there is an ideological
undercurrent which informs the changes. This is perhaps best reflected in Lord
Dyson MR’s assertion in MA45 that in addition to saving public funds, a key goal of
the SSSC is to “shift the place of social security in society.”46 This is important, as
discriminatory treatment is difficult to justify solely for the purposes of saving
money,47 so aligning the policy scheme with other more loosely defined aims - such
as localism48 and the “social and political” aspects of the austerity agenda49 - helps
to provide further supplementary aims.
This bleeds into the second key issue of the welfare reform agenda being
“unquestionably”50 sited within the rubric of “high policy,”51 which leads to the
application of the deferential “manifestly without reasonable foundation” test52.
Effectively, under this rubric, the Court has to be satisfied that there is a “serious
flaw” in the scheme which produces a discriminatory effect.53 This evidently accords
a “strong deferential tenor,”54 and demonstrates the ingrained judicial restraint
regarding concerns about subsidiarity55 - namely, national authorities are better
placed to make housing policy decisions than the court.56 On this power of the
austerity agenda, Contiades et al go as far as to suggest that the financial crisis has
led us to an “age of balancing” where threats to an individual’s social rights are
balanced against the wider interests of deficit reduction. 57
45 MA (n 41 above). 46 MA (n 41 above) [58] (per Laws LJ). 47 C Tobler, Indirect Discrimination: A Case Study Into the Development of the Legal
Concept of Indirect Discrimination Under EC Law (Intersentia 2005) 249. 48 MA (n 41 above) [66] (per Dyson MR). 49 Rutherford v Secretary of State for Work and Pensions [2014] EWHC 1631 (Admin) [61]
(per Stuart-Smith J). 50 MA (n 41 above) [54] (per Dyson MR). 51 MA (n 41 above) [54] (per Dyson MR). 52 Rutherford (n 49 above) [45] (per Stuart-Smith J) 53 MA (n 41 above) [54] (per Dyson MR). 54 J Christoffersen, Fair Balance: A Study of Proportionality, Subsidiarity and Primarity in the
European Convention on Human Rights (Martinus Nijhoff Publishers 2009) 270. 55 Ibid. 56 MA (n 41 above) [50] (per Dyson MR). 57 X Contiades and A Fotiadou, “Social rights in the age of proportionality: Global economic
crisis and constitutional litigation” (2012) 10 Int J Constitutional Law 660, 685.
Thirdly, DHPs are held to align with these high policy aims in a way which is not
“manifestly without reasonable foundation.” DHPs are seen as demonstrating
characteristics which help to advance aspects of the vague notions of “localism”58
and “austerity”59 tied to the reforms, being described as exhibiting an element of
“local accountability,”60 flexibility in responding to changing needs (such as
variability in severity of disability),61 and being responsive to ongoing evaluation in
their ability to be “topped up”62 as required by the DWP.
These beneficial characteristics articulated by the DWP, and accepted in recent
appeals, sit at odds with the disparaging treatment given to them in the earlier case
of Burnip,63 where the payment’s temporary nature and consequent lack of
reliability were not perceived as a virtue aiding flexibility in the delivery of the
policy, but rather as a reason why they could not by themselves “come anywhere
near providing an adequate justification for the discrimination in cases” involving
children with disabilities being unable to share a room.64 The Burnip treatment has
been distinguished from the present policy environment on the basis that the
overall DHP fund has since been substantially increased, and the importance of the
SSSC – and the use of DHPs to mitigate its impact - being introduced under the
“shadow of the financial crisis,” whereas local housing allowance was not.65 As
discussed in more detail below, there is an inherent tension in linking the provision
of extra money with an austerity agenda, which makes the distinction drawn from
Burnip here somewhat problematic.
58 MA (n 41 above) [66] (per Dyson MR). 59 See MA (n 41 above) [50] (per Dyson MR); and Rutherford (n 49 above) [61] (per
housing-payments-for-local-authorities-2014-to-2015 [Accessed April 12, 2015]. 85 A Clarke, “Reality dawns – the impact of welfare reform on housing associations: a mid-
[Accessed April 14, 2015]. 86 Ibid. 87 See Department for Work and Pensions, Evaluation of Removal of the Spare Room
Subsidy (Research Report No 882, 2014) 44; and P Apps, “Council denies hardship funds to
smokers” (Inside Housing 2013) available at <http://www.insidehousing.co.uk/council-
denies-hardship-funds-to-smokers/6529814.article> [Accessed April 14, 2014].
Government consistently use DHP expenditure and returns data to argue that the
need for payments – and consequent mitigation of the reforms – is being met.88
The DHP allocations are, however, only a “small fraction” of total shortfalls89 and
were never intended to mitigate the full impact of reductions in housing benefit.90 A
small DHP pot being expected to deal with a far higher level of impact is a familiar
theme in the short history of these payments, as identified previously in this
journal.91
This problem is further compounded by the implicit assumption that all affected
tenants who require assistance would naturally apply for mitigation through these
payments. Under the “DHP strategy,”92 the onus is firmly on those affected by the
welfare reforms to apply to their local authority for DHPs themselves, effectively
making the regime a form of “bounce-back” exemption, reliant on post hoc action
by the tenants themselves. This issue was given implicit attention by Males J in
Cotton, where the claimant’s lack of a DHP award was due to his failure to make
“correct applications.”93 Here, it appears as if the arrears suffered by the claimants
due to delays in the DHP process were framed firmly as their own responsibility,
with little consideration on how onerous or unclear the application process imposed
by the local authority may have been, or whether any support was provided.94
88 As a recent example, see HL Deb, 3 June 2015, c506 89 R Tunstall, “The Coalition’s Record on Housing: Policy, Spending and Outcomes 2010-
2015” (CHP, 2015) available at <http://sticerd.lse.ac.uk/dps/case/spcc/WP18.pdf>
[Accessed April 14, 2015]. 90 W Wilson (2014) Housing Benefit: Discretionary Housing Payments (DHPs) - Commons
Library Standard Note Standard notes SN06899 22nd September London: House of
Commons Library. 91 S Rahilly, “New limits on benefit for rents: the cap that doesn't fit?” (2011) Journal of
Social Security Law 18(3) 118, 124. 92 Oral Evidence taken before the Work and Pensions Committee (12 February 2014), Q
490,
<http://data.parliament.uk/writtenevidence/WrittenEvidence.svc/EvidenceHtml/6101>; HC
720 of 2013-14, last accessed 19 April 2015. 93 Cotton (n 67 above) [30] (per Males J). 94 It is clear that differential levels of support are provided by at both LA, and for
appropriate tenants, Housing Association level; see Department for Work and Pensions,
Evaluation of Removal of the Spare Room Subsidy (Research Report No 882, 2014) 47.
Data on current levels of application appear to underscore that many affected by
welfare reforms – particularly the SSSC – who may be eligible for assistance, are
not always effectively utilising the availability of the payments. Applying for a DHP
was described by Clarke et al as a “middle-ranking response” 95 to the imposition of
the SSSC, with many of those affected choosing not to pursue an application for the
payments. In their study, only one-in-five claimants make an application,96 with an
average success rate of 49%.97 The most likely group to appeal a DHP decision
were the long-term sick or disabled, but this was at a rate of just 26%,98 and the
Social Security Advisory Committee raised their concerns that many tenants –
particularly families – did not know about the existence of DHPs at all.99 This raises
serious concerns about the effectiveness of the payments in operating as an
effective mitigating mechanism.
A further difficulty is the inherent tension in the assumptions that local authorities
will both make DHP awards with reference to their local knowledge in line with the
“localism” agenda,100 and that they will adhere to the centrally determined
principles set out in DWP guidance on their use.101 Ministers have repeatedly
emphasised that the payments are discretionary, highlighting that “the key is in the
title”102 and expressing a reluctance to be “standing back and imposing
something”103– local authorities should decide when to make awards with reference
95 Department for Work and Pensions, Evaluation of Removal of the Spare Room Subsidy
(Research Report No 882, 2014) 39. 96 Department for Work and Pensions, Evaluation of Removal of the Spare Room Subsidy
(Research Report No 882, 2014) 39. 97 ibid. 98 Ibid. 99 Social Security Advisory Committee, Report on the Housing Benefit and Universal Credit
780108560064.pdf> [Accessed June 20, 2015]. 100 MA (n 41 above) [66] (per Dyson MR). 101 ibid [72] (per Dyson MR). 102 HC Deb 25 Nov 2013, vol 571, col 13. 103 Oral Evidence taken before the Work and Pensions Committee (12 February 2014), Q
564,
<http://data.parliament.uk/writtenevidence/WrittenEvidence.svc/EvidenceHtml/6101>; HC
720 of 2013-14, last accessed 19 April 2015.
to “local issues.”104 This approach is set against a continued emphasis on central
guidance being updated to help local authorities respond to and prioritise vulnerable
populations. This contradiction sits at the heart of the judgment in MA, which uses
the fact that “further guidance [on DHPS] has been issued to the [local
authorities]”105 to help justify taking a separate line of reasoning from Burnip,
whilst at the same time emphasising that “[local authorities] and social landlords
are better able than any central authority to ensure they use their housing stock to
best effect”106 and that “[local authorities are] accountable locally for the money
they spend.”107 The guidance has been scrutinised in some detail in other SSSC
appeals, most recently Cotton.108 However, quite how local authorities are expected
to balance their public law duty to “have regard”109 to this central guidance
alongside what they perceive as “local needs” is not clear.
This is especially so given the DHP guidance’s emphasis on the payments being
“first and foremost…a discretionary scheme.”110 The only prescriptive areas echo
demands made by statute or case law, such as limits to the amount of DHP money
set at the level of eligible rent, or suggesting that local authorities should “consider”
making payments in certain circumstances – such as when children are unable to
share a bedroom due to disability, but fall outside of the statutory exemption by
virtue of not receiving the middle or higher rate of DLA.111 Indeed, the “entirely
discretionary” nature of the scheme, and the ability of Local Authorities to set their
104 HC Deb 25 2013, vol 559, col 976W. 105 MA (n 41 above) [64] (per Dyson MR). 106 ibid [66] (per Dyson MR). 107 Ibid [75] (per Dyson MR). 108 Cotton (n 67 above) [20-23] (per Males J). 109 Rutherford (n 49 above) [52] (per Stuart-Smith J). 110 Department for Work and Pensions, Discretionary Housing Payments Guidance Manual
iscretionary-housing-payments-guide-apr-14.pdf> [Accessed June 19, 2015]. 111 Department for Work and Pensions, Discretionary Housing Payments Guidance Manual
question about disabled individuals not being exempted from the policy that “the
right hon. Gentleman is completely wrong, because anyone with severely disabled
children is exempt from the spare room subsidy.”123 Other examples abound, such
the Minister of State for Pensions stating that “an additional bedroom will be
allowed [for cancer patients] when determining the number of bedrooms they
need.”124 Importantly, these populations are not automatically statutorily
exempted, but instead may be reliant on the DHP process.
Finally, there are some sizable practical problems which are not considered or
resolved in the position presented in the case law. For instance, the appeals do not
consider cases where partial awards are made which do not cover the full deduction
imposed by welfare reforms. For instance, evidence suggests that many local
authorities are making DHP awards which do not cover the full deduction in SSSC
cases.125 In such a case, it is not clear whether the existence of a discretionary
payment – even if it does not cover the full amount – is sufficient to prevent a
disproportionate impact on protected populations, and if it does, where the line
between sufficient and insufficient awards lies.
A Higher Standard of Scrutiny? Future Directions in the Judicial Treatment
of DHPs
The discussion so far has been focused on cases where regulations have been
challenged and DHPs have formed part of the overall scheme under consideration
by the Court, instead of directly assessing the making of these payments
themselves. However, the recent decision in R. (on the application of Hardy) v
Sandwell MBC126 is a judicial review based on the assessment of the care
component of disability living allowance as income in the making of DHP awards.
123 HC Deb, 6 March 2013, c952. 124 HC Deb, 22 April 2013, c700W. 125 Department for Work and Pensions, Evaluation of Removal of the Spare Room Subsidy
This judgment, taken together with the recent Supreme Court decision on the
Benefit Cap in JS127 and the earlier case of Burnip,128 demonstrates the clear
potential for the United Nations Convention on the Rights of Persons with
Disabilities (UNCRPD) to act as an interpretive guide to the application of Article 14
in cases involving DHPs. This is a significant development, particularly given the
prevalence of disability amongst those affected by the measures DHPs seek to
mitigate,129 and the propensity of the UNCRDP to create a “heightened standard of
scrutiny”130 when considering discrimination against those with disabilities. There
are three key elements to this which will be considered in turn: (1) whether DHPs
can fall within the ambit of Art.1/1 and/or Article 8 to leverage Article 14, (2) how
the UNCRPD is relevant, and (3) what its involvement adds.
First, following the reasoning in Hardy,131 DHPs are situated under the ambit of
either the first part of the first protocol, or Article 8, in order to facilitate a
challenge under Article 14. As discussed above, although it is clearly established
that Housing Benefit falls under Art.1/1, DHPs have generally fallen outside of this
definition; indeed, the reason why a judicial review of the decision was necessary is
because they do not carry the same rights to appeal as prescribed forms of
benefit.132 However, Phillips J highlighted how dependent the SSSC regulations are
on DHPs to their continued legality and the consequent emphasis by the Court in
MA on assessing the “scheme as a whole,”133 in his overall conclusion that “DHPs
form an integral part of HB entitlements for disabled applicants and that they have
at least a legitimate expectation that they will be used to supplement a shortfall in
HB which would otherwise be unlawful”134 (emphasis added). Clearly, the casting of
127 R. (on the application of JS) v Secretary of State for Work and Pensions [2015] UKSC 16. 128 Burnip (n 29 above). 129 See Department for Work and Pensions, Evaluation of Removal of the Spare Room
Subsidy (Research Report No 882, 2014) 39. 130 A Broderick, “A reflection on substantive equality jurisprudence: The standard of scrutiny
at the ECtHR for differential treatment of Roma and persons with disabilities” (2015) 15
International Journal of Discrimination and the Law 101, 115. 131 Hardy (n 126 above). 132 Under para.6(1) Schedule 7 of Child Support, Pensions and Social Security Act 2000. 133 MA (n 41 above) [40] (per Dyson MR). 134 Hardy (n 126 above) [48] (per Phillip J).
DHPs in the language of entitlement and legitimate expectation constructs
characteristics of a prescribed benefit one would expect to fall under the first part of
the first protocol, rather than something entirely discretionary.
In any event, even if the Court had not found DHPs to be under the ambit of
Art.Pt.1, Phillips J further accepted that the payments could fall under the Article 8
right to respect for private and family life. Here, following the same logic casting
DHPs alongside prescribed benefits, the potential risk of having to move from one’s
accommodation highlighted as engaging Article 8 in Cotton135 was held in Hardy to
apply to the removal of DHPs as well.136
Having established (albeit, in a way which may be subject to challenge) that Article
14 can be leveraged using either Article 1 of the First Protocol or Article 8, the key
issue becomes how the UNCRPD applies in the interpretation of discrimination and
justification in this context. The role of such international conventions to act as a
legitimate interpretation aid to Article 14 was most recently considered by the
UKSC in JS,137 where the Justices disagreed on the applicability of the United
Nations Convention on the Rights of the Child to interpret discrimination and
justification when dealing with gender discrimination by the “benefit cap.” The key
dividing line was on the link between the international treaty and the discrimination
alleged; with a majority of the Court deciding that the claimants could not justify
using a treaty concerning one group (children) to assist in the interpretation of
discrimination against another (women).138
However, having established the drawing of this conduit as the key issue, it is clear
that, insofar as DHPs fall under the ambit of either Article 1 of the First Protocol or
Article 8, there is a clear link between any tenants with disabilities and the
UNCRPD.139 This position is made clear in Burnip with reference to the overall
135 Cotton (n 67 above) [39] (per Males J). 136 Hardy (n 126 above) [51] (per Phillips J). 137 JS (n 40 above). 138 JS (n 40 above) [119-130] (per Carnwarth LJ). 139 N Harris, “Welfare Reform and the Shifting Threshold of Support for Disabled People”
(2014) 77(6) The Modern Law Review 888, 926.
legislative scheme for Local Housing Allowance, where although the case turned on
other grounds, Maurice J indicated that he would have been willing to utilise the
UNCRPD in his interpretation of Art.14 and find in favour of the claimants on that
basis.140
This has two key implications for the legacy of the Coalition Government’s welfare
reform programme and the future function of these payments following the Welfare
Reform and Work Bill 2015. Firstly, Article 19 UNCRPD in particular offers the
potential to “illuminate our approach to both discrimination and justification”141 in
cases involving housing benefit, given its focus on the right of those with disabilities
to live independently and choose their place of residence on an equal basis to
others.142 Others have gone as far as to suggest the prospect of a “fusion” between
ECHR disability discrimination and the norms of the UNCRPD,143 and the majority
position of the Supreme Court demonstrates the important interpretative role the
convention could play in future appeals to housing benefit changes. This would be
favourable for the future challenge to the SSSC regulations due before the Supreme
Court in 2016.
Secondly, it treats DHPs in a way which is indistinguishable from prescribed housing
benefit. Even the benefit cap was not seen to engage Art.8 in the UKSC decision,144
yet here there is a discretionary payment subject to the whims of local authorities
being treated as sitting squarely within Art.1 Pt.1 and Art.8.
Conclusion
The function, and consequently judicial treatment, of DHPs has evolved
dramatically since their introduction in 2001. Despite being articulated as a form of
discretionary relief - indeed, MPs were once told the “key is in the title”145 – they
140 Burnip (n 29 above) [22] (per Hendersen J). 141 Burnip (n 29 above) [22] (per Hendersen J). 142 Article 19 United Nations Convention on the Rights of Persons with Disabilities. 143 Broderick (n 130 above) 116. 144 JS (n 40 above) [80] (per Reed LJ). 145 HC Deb 25 Nov 2013, vol 571, col 13.
have instead been cast by the Courts as the key palliative for otherwise unlawfully
discriminatory welfare reforms, with an implicit expectation that they will plug the
gaps where the SSSC and other welfare reform policies may otherwise be
unlawfully discriminatory. However, this role is impossible for them to achieve in
the current policy framework, with many of those who may warrant receipt of the
payments – and for whom, discrimination may arise if they are not provided -
simply not applying for them. Following Hardy,146 these payments will be held to a
higher standard of scrutiny, especially in cases surrounding those with disabilities,
and it is difficult to see how they can live up to these expectations.
In the wake of the Welfare Reform and Work Bill 2015, DHPs look set to continue to
play a central role in the delivery of ongoing reforms to welfare. The 2015 July
Budget identified a total allocation of £800 million across the next parliament for
DHPs, to “help ensure Local Authorities are able to protect the most vulnerable
housing benefit claimants.”147 To what extent they can fulfil these expectations, and
