European Court of Human Rights rules against the UK in 'bedroom tax' case

Today the European Court of Human Rights has ruled, in the case of A v the United Kingdom, that the so-called ‘bedroom tax’ unlawfully discriminates against vulnerable victims of domestic violence.

The application to the European Court of Human Rights was brought by a woman known only as ‘A’ because her identity must be protected for her own safety. The case concerned the effect of the ‘bedroom tax’ policy on women living in ‘Sanctuary Scheme’ homes – properties which are specially adapted to enable women and children at serious risk of domestic violence to live safely in their own homes.

A is a victim of rape, assault, harassment and stalking at the hands of an ex-partner. Her challenge was to the UK Government’s reduction in housing benefit for ‘under-occupation’ of social housing, colloquially known as the ‘bedroom tax’.  She claimed that the housing benefit regulations which introduced the scheme are discriminatory and have devastating consequences for her and her 11-year-old son.  Under the ‘bedroom tax’, A and her son are only entitled to receive housing benefit for a two-bedroom property.  However they live in a three-bedroom property which has been specially adapted for them by the police pursuant to a Sanctuary Scheme.  This includes a panic space and extensive security measures.  A’s housing benefit has been reduced by 14% because of the UK Government’s policy.

According to figures obtained in freedom of information responses from 79 local authorities, almost 1 in 20 households using the Sanctuary Scheme for people at risk of severe domestic violence have been affected by the under-occupancy penalty or bedroom tax, totalling 281 households across the country.  The vast majority of people in the Sanctuary Scheme are women.

In November 2016, a majority of the Supreme Court of the United Kingdom decided that, while the government had a positive obligation to provide Sanctuary Scheme housing for women who need it, there had not been unlawful discrimination. The European Court of Human Rights today disagreed with the Supreme Court and found that the ‘bedroom tax’ unlawfully discriminates against A and those in her position.

In its judgment today, the European Court of Human Rights clarified the legal test applicable to discrimination claims in social security cases.  The Court explained that while Member States generally have a wide margin of appreciation in the context of economic and social policy measures, such measures must not violate the prohibition on discrimination.  Where a policy is introduced to correct an historical inequality (e.g. allowing widowers equal access to widows’ pension), the Court will only intervene if the policy is “manifestly without reasonable foundation”.  However, outside this context, because the advancement of gender equality is a major goal in the member States of the Council of Europe, “very weighty reasons” must be given before gender discrimination could be regarded as lawful.  The same applies to disability discrimination (paragraphs 87-89).

The Court found that A was particularly prejudiced by the 'bedroom tax’ because her situation was significantly different from other housing benefit recipients because of her gender (paragraph 94).  The aim of the ‘bedroom tax’ (to encourage people to leave their homes for smaller ones) was in conflict with the aim of Sanctuary Schemes (to enable those at risk of domestic violence to remain in their homes safely).  The UK Government did not provide any “weighty reasons” to justify the discrimination, so it was unlawful.  The Court also noted that in the context of domestic violence, “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” (paragraphs 103-105).

Caoilfhionn Gallagher QC and Katie O’Byrne have represented A in domestic and international proceedings since 2013.

The judgment of the European Court of Human Rights is available here.

Press release can be found here.