CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 octobre 2019

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AND A v. THE UNITED KINGDOM   (Applications nos. 32949/17 and 34614/17)         JUDGMENT     Art 14 (+ Art 1 P1) • Discrimination • Possessions • Reduction of benefit in order to incentivise social housing tenants to move into smaller accommodation • No distinction made in favour of certain categories of vulnerable tenants • Disability • Gender • Margin of appreciation • Proportionality • Test to be applied as regards the justification for a measure of social and economic policy       STRASBOURG   24 October 2019     FINAL   24/02/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of J.D. and A v. the United Kingdom, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ksenija Turković, President,   Krzysztof Wojtyczek,   Aleš Pejchal,   Pauliine Koskelo,   Jovan Ilievski,   Raffaele Sabato, judges,   Leeona June Dorrian, ad hoc judge, and Abel Campos, Section Registrar, Having deliberated in private on 17   September 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos.   32949/17 and 34614/17 against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, J.D. and A (“the applicants”), on 27 April 2017 and 5   May 2017 respectively. The President of the Section acceded to the applicants’ request not to have their names disclosed (Rule   47 § 4 of the Rules of Court). 2.     The first applicant, who had been granted legal aid, was represented by Ms K. Ashton, a lawyer practising at Coventry Law Centre. The second applicant was represented by Ms Rebekah Carrier of Hopkin Murray Beskine Solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr James Gaughan of the Foreign and Commonwealth Office. 3.     The applicants complained that a reduction in their benefit payments discriminated against them on the basis of their disability and gender. 4.     On 12 January 2018 notice of the applications were given to the Government. 5.     In addition, third-party submissions were received from Ms   Rosemary Lloyd on behalf of the Equality and Human Rights Commission and Ms   Saadia Chaudary on behalf of the AIRE Centre, who had been granted leave by the President to intervene in the written procedure (Article 36 §   2 of the Convention and Rule 44 § 2). 6.     Mr Tim Eicke, the judge elected in respect of the United Kingdom, was unable to sit (Rule 28). Accordingly, the President decided to appoint Lady   Leeona Dorrian to sit as judge ad hoc (Rule 29 § 1 (a)). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The facts of the case, as submitted by the applicants, may be summarised as follows. A.     The background facts 1.     The first applicant, J.D. 8 .     The applicant J.D. has lived with her adult, disabled daughter in a 3   bedroom property in the social rented sector since 1993. Her daughter has a type of brain damage associated with oxygen deprivation, severe physical and learning disabilities, is a permanent wheelchair user and is registered blind. J.D. cares for her daughter full time and their house was specifically designed to accommodate their needs including wide doors, an internal lift, a gradual slope at the front and rear to allow wheelchair access, ceiling hoists in the bathroom and bedroom, an accessible bathroom and a changing bed. 9 .     In 2012 the Government introduced the Housing Benefit (Amendment) Regulations 2012 (see Relevant domestic law, below). As a result the applicant’s Housing Benefit was reduced by 14%, because she is considered to have one more bedroom than that to which she is entitled (as the house has 3 bedrooms for 2 people). Because of the reduction, the applicant’s Housing Benefit no longer meets the cost of her rent. 10 .     The applicant applied for Discretionary Housing Payments (“DHP”) to meet the difference, which were awarded on a temporary basis. Her last award expired on 31 March 2017 and at the time of making her application she was awaiting a response to her most recent claim and had not been offered smaller accommodation which would meet her daughter’s needs. 2.     The second applicant, A 11.     The applicant A lives in a 3 bedroom house in the social rented sector with her son. She has lived there for more than 25 years. It appears that she was allocated a 3 bedroom house because of the shortage of 2   bedroom houses. 12.     In the past the applicant had a brief relationship with a man known as X who is considered extremely dangerous and has previously served a lengthy prison sentence for attempted murder. After his release from prison in 2002 X came to A’s home and violently attacked and raped her. Her son was conceived as a result of the rape. In 2012 X contacted A again and she was referred by the police to the “Sanctuary Scheme”. The scheme aims to protect those at risk from the most severe forms of domestic violence. As provided by the rules of her placement in the scheme, the applicant’s home was adapted to include the modification of the attic to render it a “panic room” where A and her son can retreat in the event of an attempted attack by X. 13 .     The applicant receives Housing Benefit to rent her home. Following the change in legislation in 2012, the applicant’s Housing Benefit was reduced by 14%, because the applicant is considered to have one more bedroom than that to which she is entitled (as the house has 3 bedrooms for 2   people). Because of the reduction, the applicant’s Housing Benefit no longer meets the cost of her rent. The applicant has applied for DHPs to meet the difference, which have been awarded on a temporary basis. 14 .     In early 2015, her application for DHP was refused by the local authority and she received a letter threatening her with eviction. The situation was brought to the attention of the Secretary of State who intervened on A’s behalf with the local authority, which reversed its decision to refuse her application for DHP. The Secretary of State informed the applicant that the refusal was the result of an ‘error in processing’ by the local authority where the fact that the applicant’s home had been specially adapted was not taken into account when the decision to refuse DHP was made. B.     The Domestic proceedings 1.     The first applicant 15.     On 1 March 2013 the first applicant brought proceedings for judicial review. The Divisional Court gave its judgment on 30 July 2013. It considered that the relevant Regulations did discriminate against those who had a need to occupy accommodation with a greater number of bedrooms than they were entitled to because of their own disability or that of a family or household member. However, they considered that there was no “precise class of persons” who could be identified as affected by the measure, by reason of their disability. Moreover, such discrimination would only breach Article   14 taken together with Article 8 and/or Article 1 of Protocol No. 1 of the Convention, if it were “manifestly without reasonable foundation”, and that test was not satisfied in the case. 16.     The applicant together with four other claimants, appealed to the Court of Appeal, which gave its judgment on 21 February 2014. The Court of Appeal held that the Regulations discriminated against disabled people who had a need for additional accommodation as compared with comparable non-disabled people who do not have such a need. The Court of Appeal considered whether it should be classified as direct or indirect discrimination although in its view the type of discrimination was not material in light of the Strasbourg case-law. The Master of the Rolls (Lord   Neuberger) giving the lead opinion concluded on this point: “47.     In case the classification question is material, I shall content myself with saying that ... the discrimination in this case is one of indirect or Thlimennos discrimination. It is not necessary to distinguish between these two. As a matter of substance, Regulation B13 discriminates against disabled persons on the ground of disability ...” 17.     However, applying the test of “manifestly without reasonable foundation” the Court of Appeal found that the discrimination was justified for three reasons. First, because the applicant did not form a very limited class, and to include an imprecise class to whom the Regulations would not apply would introduce more complexity into the assessment and be administratively intensive and costly. Second, discretionary payments were suitable to deal with disability-related needs as they can be imposed for shorter periods and demanded more rigorous financial discipline from local authorities. Third, the Secretary of State was entitled to take the view that there were certain groups of persons whose needs for assistance with payment of their rent are better dealt with by discretionary payments rather than Housing Benefits. 18.     The applicant appealed to the Supreme Court. The proceedings were joined with that of the second applicant and a number of other claimants (see paragraphs 22-30 below). 2.     The second applicant 19 .     The second applicant brought a claim for judicial review on the basis of gender discrimination on 24 May 2014; the High Court gave judgment on 29   January 2015. It concluded that the Regulations were prima facie discriminatory on grounds of gender but that the discrimination was justified. In its judgment, the High Court examined the system of Sanctuary Schemes, summarised as follows: “9.     Sanctuary Schemes A Sanctuary Scheme provides for the adaption of a property to make it secure. In particular there may be a secured room or space. The safe room provides a place to which the person can retreat if violence occurs or they are in fear of attack whilst they call the police and wait for assistance. The address is ‘tagged’ on police computer systems to ensure a quick response to a 999 call or the activation of a panic button. Specialist, tailored support is also provided, and A has (what is termed) a "complex package of multi-agency support". 10.     These Schemes have been successfully established across the country since 2006. Even a brief explanation of their aims and scope are sufficient to demonstrate what a good idea they are. One of the obvious benefits is that victims of domestic violence and the like can remain in their own homes (if they want to) rather than being forced out by the fear of violence. Leaving their home as a result of domestic violence can have serious consequences for the stability of their lives. Government statutory homelessness statistics show that domestic violence is consistently reported as the main reason for the loss of a last settled home for 12-13% of homelessness acceptances in England; see the witness statement of [ P.N.] of Women’s Aid at [C4]. [the applicant’s representative] submitted that Sanctuary Schemes are a means of homelessness prevention. Whilst the work costs money, it avoids the expense and upheaval of re-housing and (as A’s case well illustrates) of losing the support network of friends and neighbours that takes years to build up and which is so important for the continued safety and general wellbeing of people in A’s position. It is these people who help provide her with the day to day friendship and sense of community that she needs. ... 16.     None of that is particularly controversial. However, there is one further piece of evidence provided by the replies to these requests which was the subject of some argument. Local authorities were asked for the number of households in Sanctuary Schemes affected by the under-occupancy provisions. The answer was 120. The average gap in funding was £16.70 per week (above the average figure). Of that group of 120, the number receiving DHPs was 24 (or 20%). The Claimant relies upon that statistic to show that DHPs are not being provided to 80% of households in Sanctuary Schemes which are affected by these regulations and who should be receiving DHPs. The Defendant says that it proves nothing of the sort. [...] I observed during the course of argument that I would need to know more about the 80% before I could draw any conclusions from these figures. That remains my view. The statistic shows that DHPs are being paid to people in Sanctuary Schemes. Indeed that is A’s experience. What we do not know is why they are not being paid. It may be that it is because applications are being refused. Or it may be because claimants are bridging the gap in other ways.” 20 .     The applicant appealed to the Court of Appeal who concluded on 27   January 2016 that the discrimination against the second applicant was not justified, and was unlawful. The case proceeded on the basis that Regulation B13 constituted “ prima facie discrimination on grounds of sex and disability” (see § 5). The primary question before the court was therefore whether that discrimination had been justified. The court set out the situation of the second applicant: “10.     A has lived in a three bedroom house rented from the local council since 1989. In 1993-4 she had a brief, casual relationship with a man, X, who was subsequently convicted of attempted murder; he has been exceptionally violent to her. Whilst in prison he started to harass her and in 2002 he sought her out. A child was conceived as a result of his rape of her and was born in 2003. The child lives with her. The courts have refused contact between the son and X. 11.     In 2012, X contacted A again and made threats of violence to her. The police and other agencies took the threats seriously and under one of the schemes which are known as the "Sanctuary Schemes" her property was adapted. She is protected under that scheme with the support of the police. In consequence of the violence of X and the continued threats from him, she suffers from PTSD and has suicidal ideation. 12.     Sanctuary Schemes, which have been operating since 2006, provide for the adaptation of a house or flat to make it secure and for on-going security monitoring to enable people who have been subjected to violence, including what is often referred to a "domestic violence", to remain in their own home. There was powerful evidence before the judge from [P.N.], the Chief Executive of Women’s Aid, about the benefits and importance of Sanctuary Schemes.” In its conclusions under Article 14, the Court of Appeal commented: “ 47.     A and those in a similar position to A, who have suffered from serious violence, require the kind of protection offered by the Sanctuary Schemes in order to mitigate the serious effects of such violence and the continued threats of such violence. It cannot seriously be disputed that A and those in a similar position, who are within the Sanctuary Schemes and in need of an adapted "safe" room, are few in number and capable of easy recognition. There would be little prospect of abuse by including them within the defined categories in Regulation B13 and little need for monitoring. Moreover, with careful drafting, Regulation B13 could be amended to identify them as a discernible and certain class. ... 54.     In these circumstances, whilst we saw great force in the Secretary of State’s arguments, which we subjected to serious scrutiny, we feel constrained not to accept them. We acknowledge in particular that DHPs are discretionary, but that that discretion has to be exercised lawfully and in accordance with the guidance issued by the Secretary of State. If they were to be withheld inappropriately, the decision would be subject to review. We acknowledge that the evidence shows that the DHPs would cover the full deficit in Housing Benefit. We acknowledge that, even though the fund for DHPs is capped and may in theory be insufficient, there is no clear evidence that it will be; on the contrary, so far it has been sufficient. Thus, the evidence is that A has received what she would have received had those in her position been brought within a defined class in Regulation B13; she has not been disadvantaged. But that was the position in Burnip , and the same justification was not accepted. 55 .     Burnip obliges us also to decide that the Secretary of State was not entitled to decide that the better way of providing for A and those in a similar position was by way of DHPs, even though that would be a more flexible approach. 56.     In these circumstances, we have concluded that the appeal in A must be allowed on the ground that the Secretary of State has failed to show that his reasons amount to an objective and reasonable justification for the admitted discrimination in Regulation   B13.” 21.     The Government appealed that decision and the second applicant’s case was joined with that of the first applicant and a number of others to be heard together, before the Supreme Court. 3.     The proceedings before the Supreme Court 22 .     The Supreme Court gave its judgment on 9 November 2016. Both the applicants’ claims were dismissed. Lord Toulson gave the lead judgment, Lady Hale and Lord Carnwath dissented in the case concerning the second applicant. 23.     Lord Toulson first addressed the question whether the lower courts had applied the right test in asking whether the discriminatory treatment complained of was “manifestly without reasonable foundation”. Where the applicants had argued that in cases such as theirs involving disability or gender discrimination, weighty reasons for justification were required, he confirmed that the lower courts were correct to apply the test of “manifestly without reasonable foundation”. Lord Toulson clarified that: “32.     The fundamental reason for applying the manifestly without reasonable foundation test in cases about inequality in welfare systems was given by the Grand Chamber [of the European Court of Human Rights] in Stec (para 52). Choices about welfare systems involve policy decisions on economic and social matters which are pre-eminently matters for national authorities.” 24.     He then went on to consider whether the domestic courts had misapplied that test. He found that they had not. He said: “41.     ...There was certainly a reasonable foundation for the Secretary of State’s decision not to create a blanket exception for anyone suffering from a disability within the meaning of the Equality Act (which covers anyone who has a physical or mental impairment that has a more than minimal long term effect on the ability to do normal daily activities) and to regard a DHP scheme as more appropriate than an exhaustive set of bright line rules to cover every contingency. 42.     However, that is not the end of the matter, for there are some people who suffer from disabilities such that they have a transparent medical need for an additional bedroom...” 25 .     He then went on to examine the situation of other claimants in the proceedings in light of the distinction he had identified. In examining the case of the first applicant, he concluded: “53.     JD lives with [her] adult daughter, AD, who is severely disabled, in a specially constructed three-bedroom property. They have no objective need for that number of bedrooms. Because the property has been specially designed to meet [ADs] complex needs, there may be strong reasons for JD to receive state benefits to cover the full rent, but again it is not unreasonable for that to be considered under the DHP scheme.” 26 .     In respect of the second applicant, he considered that whilst A had a strong case for staying where she needed to be, she had no need for a three ‑ bedroom property: “59.     Notwithstanding my considerable sympathy for A and other women in her predicament, I would allow the Secretary of State’s appeal in A’s case. I add that for as long as A. and others in a similar situation are in need of the protection of Sanctuary Scheme housing, they must of course receive it; but that does not require the court to hold that A has a valid claim against the Secretary of State for unlawful sex discrimination.” 27.     He commented: “62... It was recognised from the time that [the Regulation (Reg B13)] was mooted that there will be some people who have a very powerful case for remaining where they are, on grounds of need unrelated to the size of the property. For reasons explained in the evidence (to which I have referred in para 40), it was decided not to try to deal with cases of personal need unrelated to the size of the property by general exemptions for particular categories but to take account of them through DHPs. ... 64.     So while I agree that there would have been no insuperable practical difficulty in drafting an exemption from the size criteria for victims of gender violence who are in a sanctuary scheme and who need for that reason to stay where they are, deciding whether they really needed to stay in that particular property would at least in some cases require some form of evaluation. I leave aside the question debated in the evidence about whether some people in a sanctuary scheme might safely be able to make use of a spare room by taking in someone else such as a family member. Likewise I do not suppose that there would be insuperable practical difficulties in drafting exemptions to meet other categories of people who may justifiably claim to have a need to remain where they are for reasons unconnected with the size of the accommodation, but this would again require an evaluative process. ” 28.     He considered whether the state has a positive duty to provide effective protection to victims of gender-based violence but decided not to examine the question of whether there was a duty, because this would not mandate the means by which such protection is provided. 29 .     Lady Hale, dissenting in respect of the second applicant’s case considered unfortunate that the cases had been joined underlining that the cases where it is clear that people need an extra room because of their disability, and the case of A are different: “72... A’s need is not for space but to stay where she is. The effect of the regulation is to deny her the benefit she needs in order to stay in the accommodation she needs. In my view this is unjustified discrimination against her on grounds of her sex. But the reasons are quite different from the reasons in the disability cases. ... 76.     The state has provided Ms A with such a safe haven. It allocated her a three ‑ bedroom house when she did not need one. That was not her choice. It later fortified that house and put in place a detailed plan to keep her and her son safe. Reducing her Housing Benefit by reference to the number of bedrooms puts at risk her ability to stay there. Because of its special character, it will be difficult if not impossible for her to move elsewhere and that would certainly put the State to yet further expense. Given these very special circumstances, I am tempted to regard this as an interference with her and her son’s right to respect for their home. But in any event, denying her the benefit she needs in order to be able to stay there is discrimination in the sense described in Thlimmenos v Greece 31 EHRR 15: treating her like any other single parent with one child when in fact she ought to be treated differently. 77.     Indeed, the appellant does not seriously dispute that Ms A needs to stay where she is. The Secretary of State accepts that she needs to stay in a Sanctuary Scheme and probably in this very house. The justification suggested for the interference, or the discrimination, is the availability of discretionary housing payments to make up the shortfall in her rent. But if the discretionary housing payment scheme is not good enough to justify the discrimination against the [other] households, it is not good enough to justify the discrimination against Ms   A’s household either. Its deficiencies were acknowledged in the Court of Appeal’s decision in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR   117, para 46. They are well-summed up by Mr Drabble QC [...]: it is discretionary, cash-limited and produces less certainty; it has a stricter means test; it offers different and less attractive routes of judicial challenge; it can be onerous to make applications; and it encourages short term, temporary and conditional awards. For a woman in a Sanctuary Scheme to have to endure all those difficulties and uncertainties on top of the constant fear and anxiety in which she lives cannot be justified. This is not a question of the allocation of scarce public resources: it is rightly acknowledged that public resources will have to meet this need one way or another.” 30 .     In relation to the first applicant’s case she commented: “78.... In the second example, the disability is indeed a status for article 14 purposes, and I have found the case of JD and [her daughter] an extremely difficult one and have been tempted to dissent in their case too. But the distinction between them and the victims of the sex discrimination entailed in gender-based violence, is that the state has a positive obligation to provide effective protection against gender-based violence and for this small group of victims this is the only way to make that protection effective.” 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 environ