Yasaman Yousefi – University of Milan
In the case of J.D. and A. v. UK, the European Court of Human Rights touches the scope of discrimination set out in Article 14 of the European Convention on Human Rights. The decision of the court in this case can have significant implications for the way in which cases of discrimination involving social and economic measures are approached in the future.
Facts
The case concerned the introduction of the Housing Benefit Regulation in 2012 by the UK government, according to which the tenants in the social housing sector had their housing benefit reduced if they had a spare bedroom more than the number they were entitled to have; which became widely known as the “bedroom tax”.
Both applicants in this case were tenants in a three-bedroom house in the social sector, living with their child.
The first applicant, J.D., lived in a specially adapted and accommodated 3-bedroom property, designed to meet the needs of her severely disabled daughter. With the introduction of the bedroom tax, her housing benefit was reduced by 14%. She claimed that she had been discriminated against on the basis of her daughter’s disability.
The second applicant, A., was a victim of extreme domestic violence; she had been in a brief relationship with an extremely dangerous man who had previously served a lengthy prison sentence for attempted murder. She was attacked and raped by this man, resulting in conceiving her son. She was referred to the “Sanctuary Scheme” by the police; The scheme aims to protect those at risk from domestic violence. Her home was adapted to include a panic room within the attic, for A and her son to retreat in the event of an attempted attack by the man. Following the introduction of the new regulations in 2012, her housing benefit was reduced by 14% because of having one extra bedroom in her house. She claimed that she had been discriminated against on the basis of her gender as the victim of gender-based violence.
Both applicants applied to the court alleging a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) and Article 1 of Protocol No. 1 (protection of property).
The government argued that the applicants had received Discretionary Housing Payments (DHPs) to meet the differenceand that this was an appropriate way of dealing with their situation. The first applicant had received DHP on a temporary basis, and the second applicant’s request was refused at first as a result of an error in processing and not taking into account her situation. The government also argued that in cases involving general measures of economic or social strategy the appropriate test was whether the justification for the policy was ‘manifestly without reasonable foundation’; and that the policy was appropriate under that test. This argument had been previously the winning card of the government in the decision of the Supreme court in 2016, while the applicants had argued that in cases such as theirs involving disability or gender discrimination, weighty reasons for justification were required.
The procedure
The court opted to examine the complaint under Article 14 in conjunction with Article 1 of Protocol 1; explaining that Member States generally have a wide margin of appreciation in the context of economic and social policy measures, the court stated that such measures must not violate the prohibition on discrimination. When a policy is introduced to correct a historical inequality, the court is to intervene only if the policy is manifestly without reasonable foundation. But because of the importance of gender equality as a goal of member states of the Council of Europe, gender discrimination cannot be regarded lawful unless “very weighty reasons” are given. (Paragraphs 87-89)
A noteworthy point about this case is precluding the British judge, Tim Eicke, who had represented one of the parties in the Supreme Court in 2016, in accordance with Rule 28 of the Rules of Court.
Furthermore, in its examination, the court concluded that regarding the applicants’ situations, having been treated in the same way as other recipients of housing benefit who were subject to a reduction according to the bedroom tax, was prejudiced by that regulation because their situation was different for reasons of disability and gender. (paragraph 94)
The aim of the bedroom tax was to encourage people to leave their homes for smaller ones, which was in conflict with the aim of Sanctuary Schemes; namely, to enable people at risk of domestic violence to remain in their homes safely. By not providing any weighty reasons to justify this discrimination, the government’s action was considered unlawful. The court noted that in cases 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 herhome free of violent disturbance is at stake” (paragraphs 103-105)
The decision
The court held that in the case of the first applicant there has been no violation of Article 14 in conjunction with Article 1 Protocol 1 of the Convention; in respect of the second applicant, the court held by five votes to two that there has been a violation of Article 14 in conjunction with Article 1 Protocol 1 of the Convention.
Furthermore, the court ruled that the respondent State has to pay the second applicant within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000, plus any tax that may be chargeable, in respect of non-pecuniary damage.
Making a distinction between the two applicants’ situations can be regarded as the difficulty in making this decision. The court emphasized on the importance and the advancement of gender equality and the need to prevent discrimination against disabled people; but in terms of proportionality, the court acknowledges the reduced housing benefit disproportionate in relation to the second applicant who was the victim of gender-based violence, and proportionate in relation to the first applicant that was disabled. The Supreme Court had previously applied the test of “manifestly without reasonable foundation” with reference to the judgment of Grand Chamber in Stec and others v. United Kingdom.
The European Court of Human Rights took a different approach by stating that the test applies to circumstances ‘where an alleged difference in treatment resulted from a transitional measure forming part of a scheme is carried out in order to correct an inequality. The justification for this test in such cases is because the State is best placed to decide how and when to correct an inequality. Outside of the specific circumstances of transitory measures designed to correct an inequality, the ‘very weighty reasons’ test must be applied. This decision that was in contrary with the decision of the Supreme Court, shows the importance of the role of gender in the ECHR in cases of social security, and the importance of role of international judgements in cases with social and economic grounds where the decision of national authorities are usually respected.
Bibliography
Ewing, A. (2019, 11 12). UK Human Rights Blog. From “Bedroom tax” unlawful – Strasbourg Court: https://ukhumanrightsblog.com/2019/11/12/bedroom-tax-unlawful-strasbourg-court/
CASE OF J.D. AND A v. THE UNITED KINGDOM, 32949/17 and 34614/17 (European Court of Human Rights October 2019, 24).
Press-Release. (2019, October 24). Joint press release from Hopkin Murray Beskine, Matrix Chambers and Doughty Street. . From EUROPEAN COURT OF HUMAN RIGHTS RULES AGAINST THE UNITED KINGDOM IN ‘BEDROOM TAX’ CASE: https://www.matrixlaw.co.uk/wp-content/uploads/2019/10/European-Court-of-Human-Rights-rules-against-the-UK-in-Bedroom-Tax-case.pdf