Academically, last week’s High Court judgment is interesting for its analysis of the forms of discrimination on which the claimants relied - direct, indirect and Thlimmenos discrimination (a failure to treat different classes of people differently) – and the important conceptual differences between them.
As Lord Justice Laws observed: '…the difference between direct and indirect discrimination (and Thlimmenos discrimination) retains a conceptual importance, because it will determine what it is that must be justified.
'Where the discrimination is direct – where a rule, practice or policy prescribes different treatment for persons in like situations – it is the rule itself that must be justified: the difference in treatment. Where the discrimination is indirect – where a single rule has disparate impact on one group as opposed to another – it is the disparate impact that has to be justified. With Thlimmenos discrimination, what must be justified is the failure to make a different rule for those adversely affected.'
Equally, the conflation of justification and proportionality considerations with the secretary of state’s compliance with the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010 will spark academic interest and legal argument.
Last week, the High Court threw out an appeal against the Government’s spare room subsidy made by ten housing benefit claimants.Legally, the judgment sits rather uncomfortably with that of the Court of Appeal in Gorry and the appeals joined with it. In Gorry, for example, the Court felt able to identify with sufficient certainty a class of person against whom the Local Housing Allowance rules – the private sector equivalent of the Social Sector Size Criteria (SSSC) - discriminated unlawfully: those with a severely disabled child, unable to share a bedroom by reason of his or her disability.
It is difficult to see why then it felt unable to do so in this latest case. Moreover, the courts’ treatment of the secretary of state’s reliance on the DHP fund to justify the disparate and adverse effect of the SSSC is markedly different.
In Gorry, reliance on DHP availability, to make up the shortfall between benefit entitlement and rent in appropriate cases, was treated with something marginally short of contempt. The fund is finite, intended as a temporary expedient only and its allocation necessarily uncertain. Here, by contrast, it weighed favourably in the balance of proportionality.
The explanation, perhaps, lies in the court’s approach to the question of justification. As the SSSC were found to involve ‘high policy’ - aimed at saving public funds and shifting the place of social security support in society – the threshold for the claims’ success was particularly high: proof that the SSSC policy was ‘manifestly without reasonable foundation’. Whether that was the right test to apply and whether the court was right to conflate the question of justification with that of PSED compliance are questions the Court of Appeal may yet have to consider.
Meanwhile, politically and practically, application of the SSSC will remain controversial. Anecdotal and empirical evidence suggests they have contributed already to an increase in tenant arrears and landlord bad debt. While 2014 is likely, therefore, to be a critical year for the SSSC in the Court of Appeal, it is likely to prove just as critical in the county court for the tenants and landlords to whom it applies.
Dean Underwood is a barrister at Hardwicke Chambers.
