Court of Appeal judgment in Burnip: Housing benefit for the disabled and Article 14 ECHR

DATE: 15 May 2012

Burnip, Trengove, Gorry v SSWP [2012] EWCA Civ 629,

In a seminal case on the reach of Article 14 ECHR, the Court of Appeal has allowed the appeal of 3 disabled housing benefit claimants, holding that the state’s failure to provide them with sufficient resources to meet their essential housing needs constituted unlawful discrimination contrary to Article 14 ECHR.

As Maurice Kay LJ observes in the opening line of his judgment, “Disability can be expensive”. He continues:

1. ... It can give rise to needs which do not attach to the able-bodied.  Ian Burnip and the late Lucy Trengove provide stark examples.  Because of their severe disabilities they were assessed as needing the presence of carers throughout the night in rented flats in which they lived.  For this reason they needed two-bedroom flats.  In each case they were entitled to and received housing benefit (HB) but Birmingham City Council (in Mr Burnip’s case) and Walsall Metropolitan Borough Council (in Ms Trengove’s case) quantified it by reference to the one-bedroom rate which would apply to able-bodied tenants.  The issue in their cases is whether this amounted to unlawful discrimination pursuant to Article 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).  Richard Gorry’s case is somewhat different.  He, his wife and their three children live in a four-bedroom rented house.  Two of the children are girls who, at the material time, were aged 10 and 8.  Both are disabled – one by Down’s Syndrome, the other by Spina Bifida.  For this reason it is inappropriate for them to share a bedroom in the way in which able-bodied sisters of those ages would be expected to do. ...”

The court went on to hold that all three appellants had suffered discrimination calling for justification under Article 14 ECHR, and that the government had failed to provide that justification. The outcome will be of potential importance to all disabled persons. Whilst the government had brought in changes to the housing benefit scheme which would prospectively address the discrimination suffered by Mr Burnip and Ms Trengove, it will now also be required to make changes to address Mr Gorry’s situation.

This aside, the case is legally interesting for three reasons:

(i) It is the first domestic case in which a claim under Article 14 ECHR has succeeded under the principle in Thlimmenos v Greece (2001) 31 EHRR 15, which holds that in certain circumstances the state may be required to treat persons more favourably than others to take account of objective differences in their circumstances. The court rejected the narrow approach to Thlimmenos discrimination for which the government had contended.

(ii) The court rejected the government’s reliance on Lewisham Borough Council v Malcolm [2008] 1 AC 1399 as to the need to provide a “comparator” for an Article 14 case to succeed.

(iii) The robust approach taken by the court to the question of justification.

The case has received wide coverage in the national press, including a report in the Independent (

Richard Drabble QC and Tim Buley appeared for the Mr Burnip and Mr Gorry, instructed by Irwin Mitchell Solicitors and the Child Poverty Action Group respectively. Richard Drabble also appeared (leading Desmond Rutledge) for Ms Trengove.

Tim Buley had appeared as sole counsel for Mr Burnip in the (lead) case in the Upper Tribunal before Judge Howell QC ([[2011] UKUT 23).

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