The background to this week’s human rights showdown explained by Britain’s best-known commentator on the law — in the first of his exclusive new series for Legal Cheek

Does the so-called bedroom tax breach the human rights of disabled people by discriminating against them? That’s one of the questions that the Supreme Court will spend the next three days considering.

You can tell it’s a difficult question to answer because seven justices are sitting rather than the usual five. That’s usually a sign that the judges are thinking about overturning a decision by the Court of Appeal. On this occasion it’s inevitable that they’ll do so because the two leading members of the Court of Appeal have each had a go at the question and come up with different answers. Not for the first time, the Supreme Court will have to sort it out.

We are not meant to speak of the bedroom tax, of course. Indeed, it’s not really a tax at all. It’s a reduction in the benefit you receive if you live in rented social housing and you have what’s regarded as a spare bedroom. The cases before the Supreme Court are all about claimants who say that their extra bedroom isn’t spare at all.

And a tenant can’t claim that everyone in the house should have a room of their own. Couples are expected to share, of course, as well as two children of the same sex and two children under 10. Otherwise, it’s one room per occupier. These rules first appeared in regulation 13D of the Housing Benefit Regulations 2006.

One of the first people to complain about them was Ian Burnip, who was a student in the third year of his four-year BSc course in politics and international relations at Aston University in 2008. Aged 24, he was living in a rented two-bedroom flat in Warwickshire. Because of his spinal and muscular dystrophy, he needed somebody to help him from time to time overnight. During the rest of the night, his carer could sleep in the second bedroom.

However, Mr Burnip was allowed housing benefit at only the reduced rate for a one-bedroom flat. That was because his visiting carers were not regarded as “occupiers”, having homes of their own.

He challenged this ruling unsuccessfully before the first-tier tribunal and the upper tribunal. But the Court of Appeal was persuaded that Mr Burnip and others had been denied their rights under article 14 of the European convention on human rights. This says:

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.

There was no doubt that disability was covered by those last three words “or other status”. And there was no doubt that housing benefit was a right; because it was regarded as a “possession” protected by article 1 of protocol 1 to the convention.

Discrimination, under human rights law, was not restricted to cases where disabled people were given fewer rights. It included cases where the law failed to treat people differently when their circumstances were significantly different. This principle is named after a case called Thlimmenos.

And, said the Court of Appeal, there was no justification for the discrimination against Mr Burnip. So he won.

His case is not coming before the Supreme Court. But the principles it established are relevant to the cases that are. The first of these is known as MA, after one of the 10 original claimants. They claimed that a new provision in the Housing Benefit Regulations 2006, known as regulation B13, discriminated against disabled people. It restricts benefits to tenants in social housing in much the same way as regulation 13D, mentioned above.

The tenants’ claims for judicial review failed in both the High Court and the Court of Appeal. Lord Dyson, the Master of the Rolls, accepted that, on its own, regulation B13 discriminated against disabled people who needed an extra bedroom. This was either indirect discrimination or Thlimmenos discrimination.

But regulation B13 was part of a package that includes what are called discretionary housing payments, which are provided by local authorities. These are paid to people on housing benefit who need further help. Providing these payments was a reasonable way of helping these people, in Lord Dyson’s view, so the discriminatory effect of the government’s policy could be justified. The needs of certain groups of people were better met by discretionary housing payments than by housing benefit.

The other case that’s coming before the Supreme Court is called Rutherford. It was decided by the Court of Appeal as recently as last month. This time, though, Lord Thomas of Cwmgiedd, the Lord Chief Justice, was the presiding judge.

Paul and Susan Rutherford look after her grandson Warren, 15, who has severe disabilities. He needs round-the-clock care from at least two people. The couple’s housing benefit was reduced because regulation B13 allowed an extra bedroom for overnight carers of a disabled adult but not for those caring overnight for a disabled child. In their case, however, the shortfall was covered by discretionary housing payments.

The court also considered the case of a woman and her child whose three-bedroom property had been adapted to protect her from a violent former partner. She too received discretionary housing payments to make up for the reduction in her housing benefit.

Lord Thomas proceeded on the basis that the appeal courts had got the law on discrimination right. The only question was whether there was any justification for discriminating against the Rutherfords and the domestic violence victim, referred to as A, by reducing their benefits.

In the court’s view, there was not. If Mr Burnip had been the victim of discrimination, so had the Rutherfords and A. The Pensions Secretary could not decide that it was better for A and those like her to receive discretionary housing payments, even though that was a more flexible approach. Similarly, the court was not persuaded that the discretionary payments justified treating a child who needed an overnight carer differently from an adult who needed care overnight. In both cases, the Court of Appeal decided, there had been unlawful discrimination contrary to article 14 of the human rights convention.

The government has a very simple answer to all this. It’s expected to tell the Supreme Court that the overall effect of the scheme is not discriminatory when you take discretionary payments into account. That argument was not open to the Court of Appeal because it had to proceed on the basis that the Burnip decision was correct. The appeal judges could not overrule an earlier decision made by judges at the same level unless they were persuaded that the decision was wrong — and nobody had tried to argue that.

But why should the law discriminate against disabled people in the first place? Why should people who genuinely need an extra bedroom lose benefit? It’s likely to be some months before we discover the supreme answer.

Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. This is the first in a series of articles that he will be writing for Legal Cheek about law-related topics in the news.

Follow @JoshuaRozenberg

Images via @alyxsteele and @stephmulz on Instagram.