Prohibition of discrimination (Article 14 of the Convention)
II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Social Security Contributions and Benefits Act 1992 31. Housing Benefit is a means tested benefit provided under section 130 of the Social Security Contributions and Benefits Act 1992 and subordinate regulations. It is a financial payment available to claimants on low incomes who meet certain eligibility criteria. Its purpose is to help claimants with their rental costs whether they rent private or social housing. There is a prescribed mechanism for determining in each case the appropriate maximum Housing Benefit. 32. Regulation B13 was introduced into the Housing Benefit Regulations 2006 (SI 2006/213) in 2012. The Regulation provides for adjustment of the eligible rent and “Appropriate maximum Housing Benefit” in the area of social sector housing. Where the number of bedrooms in a dwelling exceeds that to which a claimant is entitled under the relevant provisions, a deduction is calculated in the claimant’s entitlement to benefits. The deduction is: 14 % where the number of bedrooms in the dwelling exceeds by one the number of bedrooms to which the claimant is entitled; and 25 % where the number of bedrooms in the dwelling exceeds by two or more the number of bedrooms to which the claimant is entitled. 33. The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant’s dwelling as their home: “(a) a couple (within the meaning of Part 7 of the Act); (b) a person who is not a child; (ba) a child who cannot share a bedroom; (c) two children of the same sex; (d) two children who are less than ten years old; (e) a child... The claimant is entitled to one additional bedroom in any case where - (a) a relevant person is a person who requires overnight care; or (b) a relevant person is a qualifying parent or carer. ... (9) In this regulation ‘relevant person’ means - (a) the claimant; (b) the claimant’s partner; (c) a person (“P”) other than the claimant or the claimant’s partner who is jointly liable with the claimant or the claimant’s partner (or both) to make payments in respect of the dwelling occupied as the claimant’s home; (d) P’s partner.” B. Discretionary Housing Payments 34. There is also a statutory scheme for enabling Discretionary Housing Payments (DHPs) to be made to persons who are entitled to Housing Benefit and/or some other benefits. According to the Discretionary Financial Assistance Regulations (set out in Statutory Instrument 2001/1167), a payment may be made for such period as the authority considers appropriate in the particular circumstances of the case, and the authority is required to give reasons for its decision. 35. There is no statutory right of appeal, but such decisions are in principle subject to judicial review. The practice is for the Department of Work and Pensions to make an annual DHP grant to local authorities in respect of their anticipated expenditure. 36. In 2013 the Government issued a DHP guidance manual and good practice guide to local authorities. It was summarised in an Appendix to the Supreme Court judgment in the present cases (see paragraph 22 above) as follows: “29. This document of April 2013 (the Discretionary Housing Payments Guidance Manual) (“the DHP Guidance Manual”) contains very full guidance as to the use of DHPs. It reminds authorities, at para 1.10, that their DHP funds are cash limited. It reviews the whole scheme. It canvasses the possibility of allowing applications in advance from persons affected by the [Housing Benefit], at paras 4.5-6, and making an award not limited in time to a disabled claimant likewise affected, at para 5.3. A “Good Practice Guide” is included in the DHP Guidance Manual. It contains a substantial discussion of the [Housing Benefit]. It states: “1.10 The Government has provided additional funding towards DHPs following the introduction of the benefit cap. This additional funding is intended to support those claimants affected by the benefit cap who, as a result of a number of complex challenges, cannot immediately move into work or more affordable accommodation.” Specific types of case are then enumerated, at para 1.11, and carefully discussed, and worked examples are given. I should note these passages: “2.5 For claimants living in specially adapted accommodation, it will sometimes be more cost-effective for them to remain in their current accommodation rather than moving them into accommodation which needs to be adapted. We therefore recommend that local authorities identify people who fall into this group and invite a claim for DHPs. 2.7 The allocation of the additional funding for disabled people broadly reflects the impact of this measure and the additional funding needed to support this group. However, due to the discretionary nature of the scheme, [Local Authority]’s should not specifically exclude any group affected by the removal of the spare room subsidy or any other welfare reform. It is important that LAs are flexible in their decision making.” Other types of case discussed include adopters (paras 2.9-11) and foster carers, in particular (para 2.13) carers for two or more unrelated foster children. 30. At paras 5.4-5.5 the Good Practice Guide poses a series of practical questions under two heads, “The household’s medical circumstances, health or support needs” and “Other circumstances”. The bullet points under the latter head (13 in number) demonstrate a series of different cases, none of them necessarily involving disability, in which the claimant may encounter particular difficulty or hardship in seeking alternative accommodation in response to the reduction in his/her [Housing Benefit] which the local authority may think it right to consider in deciding whether to make an award of DHP. I will just set out the first two instances: “Is the claimant fleeing domestic violence? This may mean they need safe accommodation on an emergency basis so the concept of having time to shop around for a reasonably priced property is not appropriate. Does the household have to live in a particular area because the community gives them support or helps them contribute to the district?” C. The Human Rights Act 1998 (“HRA”) 37. Pursuant to section 6 of the HRA, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. D. The Equality Act 2010 38. Section 149 of the Equality Act introduced the Public Sector Equality Duty. It provides that: “(1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. ... (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to - (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.” 39. Disability and sex are among the protected characteristics set out in Section 149 (7) of the Act. E. Relevant case-law 40. In Burnip v. Birmingham City Council and others ([2012] EWCA Civ 629) the Court of Appeal on 15 May 2012 first examined the issue of discrimination in the context of the ‘bedroom tax’. The court’s conclusions were later summarised as follows by the Court of Appeal in the second applicant’s case: “32. Burnip concerned two cases of single severely disabled persons occupying two bedroom flats, and one family with three children including two severely disabled daughters occupying a four bedroom flat. In the third case ( Gorry ), it was inappropriate for the two disabled daughters aged 8 and 10 to share a bedroom because of their disabilities. In each case, their Housing Benefit had been reduced by the effect of [...] Regulation B13. The Court of Appeal (Maurice Kay and Hooper LJJ and Henderson J) held that the claimants had established a prima facie case of discrimination under Article 14 of the ECHR, and that the Secretary of State had failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria (paragraph 24 of Maurice Kay LJ’s judgment). Henderson J (with whom the other members of the court agreed) held that DHPs could not be regarded as a complete or satisfactory answer to the problem (paragraphs 46 and 64). He also held in paragraph 64 that there was no question of a general exception from the normal bedroom test for disabled people of all kinds. The exception was sought for only a very limited category of claimants, namely those with a disability so severe that an extra bedroom is needed for a carer to sleep in, or in Gorry’s case where separate bedrooms were needed for children whose disabilities were so severe they could not be reasonably expected to share a single room. He made clear that such cases were by their very nature likely to be relatively few in number, easy to recognise, not open to abuse, and unlikely to undergo change or need regular monitoring.” 41. In the judgment of Burnip itself, the Court of Appeal commented in more detail on why it could not regard DHP’s as a “complete or satisfactory answer to the problem”: “46. ...This follows from the cumulative effect of a number of separate factors. The payments were purely discretionary in nature; their duration was unpredictable; they were payable from a capped fund; and their amount if they were paid at all, could not be relied upon [to replace] the full amount of the shortfall. To recognise these shortcomings is not in any way to belittle the valuable assistance that [DHPs] are able to provide, but is merely to make the point that, taken by themselves, they cannot come anywhere near providing an adequate justification for the discrimination in cases of the present type. 47. A further aspect of the problem is that housing, by its very nature, is likely to be a long term commitment. This is particularly so in the case of a severely disabled person, because of the difficulty in finding suitable accommodation and the probable need for substantial physical alternations to be made to the property in order to adapt it to the person’s needs. Before undertaking such a commitment, therefore, a disabled person needs to have a reasonable degree of assurance that he will be able to pay the rent for the foreseeable future, and that he will not be left at the mercy of short term fluctuations in the amount of his housing-related benefits. For the reasons which I have given, [DHP’s] cannot in practice provide a disabled person with that kind of reassurance.” 42. In R (Hurley and others) v. Secretary of State for Work and Pensions [2015] EWHC 3382 (Admin), the High Court considered a part of the Housing Benefit Regulations 2006 which introduced a limit (a ‘cap’) on the total amount of benefits an individual could receive. The claimants provided unpaid care to severely disabled persons for at least 35 hours per week, for which they received a “Carer’s Allowance”. That allowance was considered a benefit and so ‘capped’ as a result of the Regulations, resulting in a reduction in the amount that the claimants received. 43. One of the claimants cared for her disabled grandmother in London but as a result of the reduction in her benefits fell into debt with her rent payments and was evicted with her four children from her local authority flat. She was offered homeless accommodation in Birmingham, but refused this as she could not have cared for her Grandmother if she moved to that city with her family. She moved with her children to live in one bedroom in her Grandmother’s house in London in “intolerable” conditions (see § 30). She applied to two local, London boroughs for DHP who refused her request on the basis that they had run out of DHP funds (see § 30). 44. In its judgment of 15 May 2019 in R (on the application of DA and others) (Appellants) v. Secretary of State for Work and Pensions (Respondent), and R (on the application of DS and others (Appellants) v. Secretary of State for Work and Pensions (Respondent) [2019] UKSC 21 the Supreme Court examined appeals brought by various lone parent mothers and their young children to challenge legislative provisions known as the ‘benefit cap’, which capped specified welfare benefits at a certain amount per household. 45. The Supreme Court considered the appropriate test by which to assess the justification under Article 14 for “an economic measure introduced by the democratically empowered arms of the state...” (see § 55). Lord Wilson giving the lead judgment stated: “65. ... there was - and there still remains - clear authority both in the Humphreys case and in the bedroom tax case for the proposition that [...] in relation to the government’s need to justify what would otherwise be a discriminatory effect of a rule governing entitlement to welfare benefits, the sole question is whether it is manifestly without reasonable foundation. Let there be no future doubt about it .” 46. Lady Hale and Lord Kerr dissented. Lady Hale opined: “147. Lord Kerr is surely right to question whether the test which the Strasbourg court will apply in matters of socio-economic policy should also be applied by a domestic court. The Strasbourg court applies that test, not because it is necessarily the proper test of proportionality in this area, but because it will accord a “wide margin of appreciation” to the “national authorities” in deciding what is in the public interest on social or economic grounds. The national authorities are better able to judge this because of their “direct knowledge of their society and its needs” (see Stec, para 52). It does not follow that national courts should accord a similarly wide discretion to national governments (or even Parliaments). The margin of appreciation is a concept applied by the Strasbourg court as part of the doctrine of subsidiarity. The standard by which national courts should judge the measures taken by national governments is a matter for their own constitutional arrangements. 148. Not only that, it has been noted that, in Stec, the Grand Chamber cited James v United Kingdom (1986) 8 EHRR 123 as authority for its “manifestly without reasonable foundation” standard. But in James, it is fairly clear that the Strasbourg court drew a distinction between two questions: first, was the measure “in the public interest” for the purpose of A1P1 (or, in article 8 terms, does it pursue a legitimate aim); and second, was there a reasonable relationship of proportionality between the means employed and the aim sought to be realised. This latter requirement had been expressed in Sporrong and Lönnroth v Sweden 5 EHRR 35, at para 69, as “whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” (see James, para 50). The “manifestly without reasonable foundation” standard was applied to the first but not the second question.” III. RELEVANT INTERNATIONAL AND EUROPEAN MATERIAL A. The United Nations Convention on Rights of Persons with Disabilities 47. The United Kingdom signed the United Nations Convention on the Rights of Persons with Disabilities on 30 March 2007 and ratified it on 8 June 2009. The purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity (for details see Guberina v. Croatia, no. 23682/13, §§ 34 ‑ 37), 22 March 2016). 48. Article 28 of the Convention states: “1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.” 49. In its concluding observations on the initial report of the United Kingdom under the Convention of 3 October 2017 (CPRD/C/GBR/CO/1), the Committee on the Rights of Persons with Disabilities raised concerns under Article 28 of the Convention about the impact of austerity measures and anti-poverty initiatives introduced following the financial crisis in 2008/9 which “resulted in severe economic constraints among person with disabilities and their families”. B. The Council of Europe Convention on preventing and combating violence against women and domestic violence (the “Istanbul Convention”) 50. The United Kingdom signed the Istanbul Convention on 8 June 2012. It has not ratified the Convention, nor brought it into force. The Convention aims to protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence. It also aims to contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women. 51. Article 18 of Chapter IV “Protection and support”, states that: “2. Parties shall take the necessary legislative or other measures, in accordance with internal law, to ensure that there are appropriate mechanisms to provide for effective co-operation between all relevant state agencies, including the judiciary, public prosecutors, law enforcement agencies, local and regional authorities as well as non-governmental organisations and other relevant organisations and entities, in protecting and supporting victims and witnesses of all forms of violence covered by the scope of this Convention, including by referring to general and specialist support services .... 3. Parties shall ensure that measures taken pursuant to this chapter shall: –be based on a gendered understanding of violence against women and domestic violence and shall focus on the human rights and safety of the victim; –be based on an integrated approach which takes into account the relationship between victims, perpetrators, children and their wider social environment; –aim at avoiding secondary victimisation; –aim at the empowerment and economic independence of women victims of violence ...” THE LAW I. JOINDER OF THE APPLICATIONS 52. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 53. The first applicant complained that she had been discriminated against on the basis of her daughter’s disability. She relied in that connection on Article 14 of the Convention in conjunction with Article 8 and Article 1 Protocol 1. 54. The second applicant complained that she had been discriminated against on the basis of her gender as the victim of gender based violence. She relied in that connection on Article 14 of the Convention in conjunction with Article 8. 55. The Government have not disputed that disability and gender are identifiable characteristics and that the applicants can claim to have been discriminated against on the basis of those characteristics. In this connection it recalls that there is no doubt the first applicant may claim to have been discriminated against as a carer for a disabled person (see Guberina, cited above, §§ 76-79). 56. The applicants have complained under Article 14 in conjunction either with Article 8 and/or with Article 1 Protocol 1. However, the Court is the master of the characterisation to be given in law to the facts of the case and does not consider itself bound by the characterisation given by an applicant or a government (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). It notes that the gravamen of the applicants’ complaints is their alleged discriminatory treatment contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 resulting from the application of Regulation B13 governing Housing Benefits, and the DHP scheme. 57. Therefore, it considers that the cases fall to be examined under Article 14 in conjunction with Article 1 of Protocol No. 1. Those provisions read as follows: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 Protocol 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. The parties’ submissions 58. The Government argued that the Court has previously considered inadmissible ratione materiae complaints about the failure of public authorities to take positive steps to ensure that special provision be made for disabled people to provide them with support for ordinary living, even where domestic law provided for or even required such steps to be taken. The applicant’s cases are therefore inadmissible for the same reason. 59. They also submitted that the applicants have received financial support to meet their housing needs and there is no significant difference between Housing Benefit and DHP. Accordingly, the applicants can no longer be considered victims within the meaning of the Convention, and for the same reasons they have not suffered any significant disadvantage. 60. The applicants argued that their complaints were admissible as they had been directly and disproportionately affected by the reduction in their Housing Benefit under Regulation B13 due to their disability and gender. They submitted that there were significant differences between Housing Benefit under Regulation B13 and DHP, both in terms of the manner of allocation and the available review schemes, which meant that they were put at a disadvantage by applying for DHP. 61. They considered that they remained victims from the perspective of the Convention as the domestic courts have not recognised any violation nor awarded them compensation. Moreover, in light of the differences between the two benefit regimes, they had suffered a ‘significant disadvantage’ by being made subject to the DHP regime and their cases were therefore admissible. 2. The Court’s assessment 62. In respect of the Government’s argument that the applicants complaints are inadmissible ratione materiae, the Court notes that the Government has made reference to cases concerning treatment of disabled persons. The Court therefore considers that these arguments relate to the first applicant’s complaint. The Government relied on a series of inadmissibility decisions: Botta v. Italy, 24 February 1998, Reports of Judgments and Decisions 1998 ‑ I, Zehnalová and Zehnal v. the Czech Republic (dec.), no. 38621/97, Sentges v. the Netherlands (dec.), no. 27677/02, 8 July 2003 and Farcas v. Romania, no. 32596/04, 14 September 2010). The Court found those cases to be inadmissible because they concerned complaints of a general nature, such as a failure to provide disabled persons with access to beach facilities or public buildings (see Botta and Zehnalová and Zehnal, cited above), or they were unsubstantiated (see Sentges and Farcas, cited above). As such, they are significantly different from the present cases and are not relevant to the Court’s decision on the admissibility of the present applications. 63. According to the Court’s well established case-law the prohibition of discrimination enshrined in Article 14 applies generally in cases under Article 1 of Protocol No. 1. where a Contracting State has in force legislation providing for the payment as of right of a welfare benefit - that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Vrountou v. Cyprus, no. 33631/06, § 64, 13 October 2015). To assess admissibility the question is whether, but for the condition of entitlement under domestic law about which the applicant complains, he or she would have had a right enforceable under domestic law, to receive the benefit in question (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 55, ECHR 2005 ‑ X). It follows that the first applicant’s complaint falls within the scope of Article 1 Protocol No. 1 and that is sufficient to render Article 14 of the Convention applicable, and the complaint admissible ratione materiae. 64. The Court also rejects the Government’s argument that the applicants are not victims from the perspective of Article 34 of the Convention. A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V; Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012). The Court does not consider that permitting the applicants to apply for DHP could be considered a measure which was favourable to them in this context. It also notes that the national authorities have not acknowledged, either expressly or in substance a violation and then afforded redress for a breach of the Convention. Accordingly, the Court considers that the applicants can be considered victims under Article 34 of the Convention. 65. As to whether the applicants suffered a ‘significant disadvantage’, the Court recalls that the admissibility criterion in Article 35 § 3 (b) reflects the view that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed, taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case. In the context of allegations of discrimination, the question of what amounts to a ‘significant disadvantage’ for an applicant requires particularly careful scrutiny. Moreover, an alleged violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting an applicant’s pecuniary interest. It may also be that, even in the absence of a “significant disadvantage”, a question of principle raised by an application is of a general character affecting the observance of the Convention, such that, under the terms of the second element in Article 35 § 3 (b), “respect for human rights defined in the Convention ... requires an examination of the application on its merits” (see Daniel Faulkner v. the United Kingdom, no. 68909/13, § 26, 6 October 2016, with further references). 66. In the present case, what is at a stake, taking into consideration the applicants’ subjective perceptions and the discrimination alleged, raises general questions of principle which warrant consideration by the Court. Consequently, without needing to determine whether the applicant can be said to have suffered a “significant disadvantage”, the Court is led to dismiss the Government’s objections on the basis of the second element in Article 35 § 3 (b) of the Convention (see Daniel Faulkner, cited above, § 27). 67. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants 68. The first applicant submitted that she had been discriminated against in the enjoyment of her rights under Article 14 and Article 1 Protocol 1 on the ground of disability because she had been treated less favourably than others as regards entitlement to Housing Benefit. Those who do not have objective housing needs based on their disability will receive a contribution which could cover all of their housing needs, whereas her Housing Benefit contribution does not cover her housing needs. This amounts to a failure to make a reasonable accommodation in the case of disability within the meaning of Çam v. Turkey, no. 51500/08, § 84, 23 February 2016. 69. That difference in treatment was not justified because justification requires a reasonable relationship of proportionality between the legitimate aim and the means; in her case it had been disproportionate. Justification of discrimination on the grounds of disability requires “very weighty reasons”; the Government has not put forward any weighty reasons which could have justified the discrimination. 70. The second applicant submitted that by reducing her Housing Benefit allocation, the government had discriminated against her on the basis of her gender within the meaning of Thlimmenos v. Greece ([GC], no. 34369/97, § 44, ECHR 2000 ‑ IV), as she was the victim of domestic violence and victims of domestic violence are overwhelmingly women. 71. That discrimination could not be justified. The aim of the Government in implementing the bedroom criteria was to reduce expenditure and encourage social sector tenants to move or to work, such an aim was legitimate but there was no rational connection between the aim and its application. As a consequence of the violence and threats from X, the applicant suffered from post-traumatic stress disorder, depression and suicidal ideation, was unable to work, and lived in constant fear. It was accepted by the Supreme Court that she needed to stay in her adapted accommodation as long as she needed it. DHP payments could not alleviate the disadvantage caused by the reduction in her Housing Benefit because they were discretionary and precarious, in contrast to the entitlement to a benefit. 72. Where there is prima facie gender discrimination, the arguments for justification must be subject to “strict scrutiny” and call for “weighty reasons”, not a justification of “manifestly without reasonable foundation” even in the context of allocation of benefits. It would only be appropriate to apply a test of “manifestly without reasonable foundation” where the measure was designed to correct a historic injustice, which was not so in her case. Applying the test of “strict scrutiny” and “weighty reasons” in her case meant that the reduction in her Housing Benefit was discriminatory. (b) The Government 73. The Government argued that the aim of the legislative measures was “saving of public funds in the context of a major state benefit” and “shifting the place of social security support in society”. Those are social and fiscal matters which were approved by Parliament. 74. The applicants had not been discriminated against since they have received financial support to meet their actual housing needs (and have received the same payment as the comparators); they have not been evicted from their homes and therefore they cannot contend that they have been discriminated against in the enjoyment of any possession. The scheme does not require the applicants to move out of their properties. It is designed to effect “behavioural changes” to incentivise families who feel they are under-occupying properties to move but there is no obligation to move and no reason for the applicants in the present cases to move. 75. The requirement for the applicants to apply for DHP cannot be considered discriminatory because there is no uncertainty about whether DHP funds can be allocated. Moreover, whilst payments under the scheme are discretionary, there is a limit on that discretion because local authorities must have regard to their general duties in law, including duties under the Convention. A refusal to grant DHP can be challenged before the courts and it is usual in the context of any benefit payment that applicants must make an application to receive it. The DHP scheme is appropriate and suitable for claimants who cannot mitigate the reduction in of their Housing Benefit by any other available measure (such as moving, working or taking in a lodger, which will be options also available to other disabled and non-disabled persons). Payment by DHP instead of Housing Benefit is therefore justified. 76. There has been no discrimination on the basis of Thlimmenos, cited above, because the principle in Thlimmenos cannot require a State to take positive steps to allocate a greater share of public resources to a particular person or group, and it has never been applied in the context of allocation of State benefits. The Court should apply an appropriate, prior limit in such cases by applying the principles of direct/indirect discrimination (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, ECHR 2007 ‑ IV), or there must be a “significant difference” in treatment between the comparator groups. In the present cases, there has been no difference of treatment between the applicants and comparator groups. The measure limiting payment of Housing Benefit in some cases is neutral; the only place where a difference of treatment could arise is at the stage of deciding whether to make a DHP payment. However, it cannot be said that the decision at this stage of the proceedings is based solely on the status of disability or gender, and therefore that decision does not require “very weighty reasons” in order to be justified. 77. Even if the applicants have suffered discrimination, such discrimination is justified on the basis that it served a legitimate aim and was not “manifestly without reasonable foundation”, which is the relevant test concerning the margin of appreciation in light of the Supreme Court’s judgment. 2. Third party interveners (a) The Equality and Human Rights Commission 78. The Equality and Human Rights Commission (“EHRC”) is the United Kingdom’s national human rights institution. It intervened in both applicants’ cases. With reference to the Court’s case-law the EHRC considered that the Court takes a purposive and practical approach to Article 14. It outlined seven reasons related to the functioning of the DHP Scheme to explain how payments made under the scheme are discretionary and may not be awarded. The EHRC made reference to a number of international legal instruments including the Council of Europe Istanbul Convention, the UN Convention on the Rights of Persons with Disabilities and the UN Commission on the Elimination of All Forms of Discrimination against Women (CEDAW). In respect of the latter it noted that the United Kingdom’s sixth periodic CEDAW report relies on the existence of ‘Sanctuary Schemes’ to discharge its duty to protect women from gender based violence. (b) The AIRE Centre 79. The AIRE Centre is a non-governmental organisation running a specific project on obligations of states to victims of gender based and domestic violence, it intervened in the second applicant’s case. With reference to the Court’s case-law it considered that it was well-established that victims of domestic violence have a right to physical and moral integrity under Article 8 of the Convention. The Centre referred to the Council of Europe Istanbul Convention emphasising that this imposes an obligation on states to provide protection to victims. Finally, it underlined that domestic violence frequently raises issues of gender based discrimination and that there is a uniform acceptance of the fact that women and girls are the predominant victims of serious and life threatening forms of violence. 3. The Court’s assessment (a) The general principles 80. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in relevantly similar situations (see, among many other authorities, Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). 81. The Court also recalls that the provisions of the Convention do not prevent Contracting States from introducing general policy schemes by way of legislative measures whereby a certain category or group of individuals is treated differently from others, provided that the interference with the rights of the statutory category or group as a whole can be justified under the Convention (see Andrejeva v. Latvia [GC], no. 55707/00, § 83, ECHR 2009 and Ždanoka v. Latvia [GC], no. 58278/00, § 112, ECHR 2006 ‑ IV). Indeed, measures of economic and social policy often involve the introduction and application of criteria which are based on making distinctions between categories or groups of individuals. 82. Furthermore, not every difference in treatment between persons in relevantly similar situations will entail a violation of Article 14. Only differences in treatment based on the grounds enumerated in that Article are capable of resulting in discrimination within the meaning of Article 14 ( see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010 and Clift v. the United Kingdom, no. 7205/07, §§ 56-57, 13 July 2010). Thus, the prohibition enshrined in Article 14 encompasses differences of treatment based on an identifiable characteristic, or “status”, (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017, with further references). In this regard, the Court has already held that a person’s health status, including disability and various health impairments, fall within the term “other status” in the text of Article 14 of the Convention (see Guberina, cited above, § 76 with further references). The Court has also considered that a discriminatory treatment of a person on account of the disability of his or her child, with whom he or she has close personal links and for whom he or she provides care, is a form of disability-based discrimination covered by Article 14 of the Convention (ibid., § 79). The Court has further held that victims of gender based violence may be able to invoke the protection of Article 14 in conjunction with the relevant substantive provisions of the Convention (see Opuz v. Turkey, no. 33401/02, ECHR 2009; Bălșan v. Romania, no. 49645/09, 23 May 2017). 83. For the purposes of Article 14, a difference of treatment based on a prohibited ground is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Mazurek v. France, no. 34406/97, §§ 46 and 48, ECHR 2000 ‑ II). 84. Thus, the Contracting States must refrain from subjecting persons or groups to different treatment where, under the above principles, such treatment would qualify as discriminatory. However, this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different (see Thlimmenos, cited above, § 44; Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, § 35, 10 May 2007; D.H. and Others v. the Czech Republic, cited above, § 175; Eweida and Others v. the United Kingdom, no. 48420/10, 15 January 2013; and Kurić and Others v. Slovenia [GC], no. 26828/06, § 288, ECHR 2012). The prohibition deriving from Article 14 will therefore also give rise to positive obligations for the Contracting States to make necessary distinctions between persons or groups whose circumstances are relevantly and significantly different. 85. The Court has also held that a policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory, regardless of whether the policy or measure is specifically aimed at that group. Thus, indirect discrimination prohibited under Article 14 may arise under circumstances where a policy or measure produces a particularly prejudicial impact on certain persons as a result of a protected ground, such as gender or disability, attaching to their situation. In line with the general principles relating to the prohibition of discrimination, this is only the case, however, if such policy or measure has no “objective and reasonable” justification (see, among other authorities, S.A.S. v. France [GC], no. 43835/11, § 161, ECHR 2014 (extracts), and D.H. and Others v. the Czech Republic, cited above, §§ 175 and 184-185). 86. Furthermore, Article 14 does not preclude States from treating groups differently even on otherwise prohibited grounds in order to correct “factual inequalities” between them. Moreover, in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (see Thlimmenos, cited above, § 44; Stec and Others, cited above, § 51; D.H. and Others v. the Czech Republic, cited above, § 175). 87. In the context of Article 1 of Protocol 1 alone, the Court has often held that in matters concerning, for example, general measures of economic or social strategy, the States usually enjoy a wide margin of appreciation under the Convention (see Fábián, cited above, § 115; Hämäläinen v. Finland [GC], no. 37359/09, § 109, ECHR 2014; Andrejeva, cited above, § 83). Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”. 88. However, as the Court has stressed in the context of Article 14 in conjunction with Article 1 Protocol 1, although the margin of appreciation in the context of general measures of economic or social policy is, in principle, wide, such measures must nevertheless be implemented in a manner that does not violate the prohibition of discrimination as set out in the Convention and complies with the requirement of proportionality (see Fábián, cited above, § 115, with further references). Thus, even a wide margin in the sphere of economic or social policy does not justify the adoption of laws or practices that would violate the prohibition of discrimination. Hence, in that context the Court has limited its acceptance to respect the legislature’s policy choice as not “manifestly without reasonable foundation” to circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality (see Stec and Others, cited above, §§ 61-66; Runkee and White, cited above, §§ 40-41 and British Gurkha Welfare Society and Others v. the United Kingdom, no. 44818/11, § 81, 15 September 2016). 89. Outside the context of transitional measures designed to correct historic inequalities, the Court has held that given the need to prevent discrimination against people with disabilities and foster their full participation and integration in society, the margin of appreciation the States enjoy in establishing different legal treatment for people with disabilities is considerably reduced (see Glor v. Switzerland, no. 13444/04, § 84, ECHR 2009), and that because of the particular vulnerability of persons with disabilities such treatment would require very weighty reasons to be justified (see Guberina, cited above, § 73). The Court has also considered that as the advancement of gender equality is today a major goal in the member States of the Council of Europe, very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention ( Konstantin Markin v. Russia [GC], no. 30078/06, § 127, ECHR 2012). (b) Application to the present case (i) The issue 90. The Court notes at the outset that, as set out in paragraph 32 above, the changes made in the Housing Benefit Regulations entailed that where the number of bedrooms in a dwelling exceeded that to which a claimant was entitled under the relevant provisions, a deduction is calculated in the claimant’s entitlement to benefits. This applied to all beneficiaries under the scheme without any distinction by reference to their characteristics such as disability or gender. In the present case, the applicants have been treated in the same way as other recipients of the Housing Benefit in that their entitlements have been reduced on the same grounds and according to the same criteria as those of other recipients. Thus, the issue arising in this case is one of alleged indirect discrimination. 91. The question to be examined is whether there has been a discriminatory failure by the authorities of the respondent State to make a distinction in the applicants’ favour on the basis that their relevant circumstances were significantly different from those of other recipients of the Housing Benefit who were adversely affected by the contested policy. More specifically, the issue is whether, as a result of a failure to make a distinction, the impugned general measure, in the form of the legislative changes affecting the recipients of the Housing Benefit, was put in place in such a manner as to produce disproportionately prejudicial effects on the applicants because of their particular circumstances which, in respect of the first applicant, were linked to her daughter’s disability and, in respect of the second applicant, to her gender. (ii) The treatment of the applicants 92. As regards the effects of the measure, the Court observes that it was an anticipated consequence of the reduction of the Housing Benefit that all benefit recipients who experienced such a reduction could be at risk of losing their homes. Indeed, the Government argued that this precarity was the intention of the scheme; to incentivise families to move (see paragraph 74 above). The Court accepts the applicants’ arguments that in this respect, they were in a significantly different situation and particularly prejudiced by the policy because they demonstrated they had a particular need to be able to remain in their specifically adapted homes for reasons directly related to their status. In the case of the first applicant, loss of her home would cause exceptional hardship given her daughter’s severe mental and physical disabilities. In the case of the second applicant, loss of her home would risk her personal safety. Thus, for these reasons, the consequence of the measure was much more severe for the applicants than for others whose entitlement to Housing Benefit was reduced. 93. The legislative scheme also anticipated that those who experienced a reduction in their Housing Benefit would be able to mitigate their loss by taking in tenants and/or working (see paragraph 36 above). The Government has argued that these possibilities to make up for the reduction in Housing Benefit were available equally to disabled and non-disabled persons (see paragraph 75 above). However, the Court notes that because of their vulnerable status the applicants were significantly less able than other Housing Benefit recipients to mitigate their loss by taking in tenants or by working (see paragraphs 8 and 71 above). Accordingly, they did not have the same possibilities available to them to mitigate their loss as other recipients of Housing Benefit. 94. The Court concludes that in light of the above the applicants, having been treated in the same way as other recipients of Housing Benefit who were subject to a reduction in their Housing Benefit, were particularly prejudiced by that measure because their situation was significantly different for reasons of disability, as regards the first applicant, and gender, as regards the second applicant. 95. The Government have argued that they eliminated the failure to treat the applicants differently from other recipients of the Housing Benefit by providing the applicants with the option to apply for and receive DHP. The Court considers it would be possible to examine the provision of DHP from this perspective. However, as the domestic courts considered it more appropriate to examine this element in the context of justification for the treatment, the Court will follow the same approach. (iii) Whether the treatment was objectively and reasonably justified 96. Having established that the applicants, who were treated in the same way as other recipients of the Housing Benefit even though their circumstances were significantly different, were particularly prejudiced by the impugned measure – because they had a particular need to be able to remain in their specifically adapted homes for reasons directly related to their vulnerable status and were less able to mitigate the reduction in their Housing Benefit – the Court must ask whether the failure to take account of that difference was discriminatory. Such treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Guberina, cited above, § 69). 97. In the circumstances of the present cases – where the alleged discrimination was on the basis of disability and gender, and did not result from a transitional measure carried out in good faith in order to correct an inequality – very weighty reasons would be required to justify the impugned measure in respect of the applicants (see paragraph 89 above). 98. As to the legitimate aim of the legislation, the domestic courts accepted that it was to curb public expenditure by ensuring that social sector tenants of working age who were occupying premises with more bedrooms than required should, wherever possible, move into smaller accommodation. The applicants also accepted this aim as legitimate in general terms (see paragraph 71 above). It therefore remains to be examined whether the treatment afforded to the applicants was justified on the basis that there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised. 99. The applicants argued that the measure was disproportionate in its impact on them in the sense of not corresponding to the legitimate aim of the measure. It is true that the Government has not put forward any detailed reasons as to how imposing the measures on the applicants might achieve the stated aims of reducing benefit payments; managing housing local authority stock; and encouraging employment. It was accepted that the applicants should be able to receive DHPs in order that they could remain in their adapted housing (see paragraphs 25 and 26 above). Accordingly, it does not appear that the aims envisaged by the legislative changes could have been achieved by applying them to the applicants. 100. However, as with most complaints of alleged discrimination in a welfare or pensions system, the issue before the Court for consideration goes to the compatibility of the system with Article 14, not only to the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation (see British Gurkha Welfare Society and Others, cited above, § 63). It is therefore appropriate to look at the system as a whole. (α) The first applicant 101. Turning to the scheme as a whole, with reference to the case of the first applicant, the Court finds that whilst it has been acknowledged that any move would be extremely disruptive and highly undesirable for the first applicant, it would not be in fundamental opposition to the recognised needs of disabled persons in specially adapted accommodation but without a medical need for an ‘extra’ bedroom to move into smaller, appropriately adapted accommodation. 102. In that context, the Court takes account of the Government’s decision to provide for those who did not fall under the exemptions set out in the Regulation to apply for DHP. The Court acknowledges that the DHP scheme had a number of significant disadvantages which were identified by the domestic courts, namely that the awards of DHP were purely discretionary in nature; their duration was uncertain; they were payable from a capped fund; and their amount could not be relied upon to replace the full amount of the shortfall (see paragraph 41 above). On the other hand, the scheme had some advantages in that it allowed local authorities to take individualised decisions, which the Court has identified as an important element to ensure proportionality (see a contrario Guberina ¸ cited above, § 93). Moreover, the awards of DHP are made subject to certain safeguards, in particular the requirement on local authorities to take their decisions in light of the Human Rights Act and their Public Sector Equality Duty which in the Court’s understanding would prevent them from refusing to award DHP where that could mean the applicant’s need for appropriately adapted accommodation was not met. The Court observes that the first applicant has in fact been awarded DHP for several years following the changes to the Housing Benefit Regulation. Whilst the DHP scheme could be characterised as not ensuring the same level of certainty and stability as the previous, unreduced Housing Benefit, its provision with attendant safeguards, amounts to a sufficiently weighty reason to satisfy the Court that the means employed to implement the measure had a reasonable relationship of proportionality to its legitimate aim. Accordingly, the difference in treatment identified in the case of the first applicant was justified. (β) The second applicant 103. In the case of the second applicant the Court notes that the legitimate aim of the present scheme – to incentivise those with ‘extra’ bedrooms to leave their homes for smaller ones – was in conflict with the aim of Sanctuary Schemes, which was to enable those at serious risk of domestic violence to remain in their own homes safely, should they wish to do so (see paragraphs 19-20 above). 104. Given those two legitimate but conflicting aims the Court considers that the impact of treating the second applicant, or others housed in Sanctuary Schemes, in the same way as any other Housing Benefit recipient affected by the impugned measure, was disproportionate in the sense of not corresponding to the legitimate aim of the measure. The Government have not provided any weighty reasons to justify the prioritisation of the aim of the present scheme over that of enabling victims of domestic violence who benefitted from protection in Sanctuary Schemes to remain in their own homes safely. In that context, the provision of DHP could not render proportionate the relationship between the means employed and the aim sought to be realised where it formed part of the scheme aimed at incentivising residents to leave their homes, as demonstrated by its identified disadvantages (see paragraph 102 above). 105. Accordingly, the imposition of Regulation B13 on this small and easily identifiable group has not been justified and is discriminatory. In coming to that conclusion, the Court also recalls that in the context of domestic violence it has found that States have a duty to protect the physical and psychological integrity of an individual from threats by other persons, including in situations where an individual’s right to the enjoyment of his or home free of violent disturbance is at stake (see Kalucza v. Hungary, no. 57693/10, § 53, 24 April 2012). (iv) Conclusion 106. There has accordingly been no violation of Article 14 in conjunction with Article 1 Protocol 1 of the Convention in respect of the first applicant. 107. There has been a violation of Article 14 in conjunction with Article 1, Protocol 1 of the Convention in respect of the second applicant. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 108. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 109. The second applicant claimed twelve thousand euros (EUR 12,000) in respect of non-pecuniary damage. 110. The Government considered that nothing in the second applicant’s case justified an award of just satisfaction. 111. The Court considers that the second applicant has undoubtedly suffered some distress and awards her ten thousand euros (EUR 10,000) in respect of non-pecuniary damage. B. Costs and expenses 112. The second applicant did not submit any claim for costs and expenses. Accordingly, the Court makes no award in that respect. C. Default interest 113. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 1 (protection of property) of Protocol No. 1 in respect of the second applicant. It noted in particular 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 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. Moreover, the UK 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.