ECHR judgment of 24 October 2019 in the case of J.D. and A v. The United Kingdom (J.D. and A v. United Kingdom) (applications Nos. 32949/17 and 34614/17).
In 2017, the applicants were assisted in preparing applications. Subsequently, the applications were consolidated and communicated to the United Kingdom.
In the case, applications on the lack of differentiation in favor of certain vulnerable categories of residents of socially rented apartments when applying the amended scheme for paying housing allowances were successfully considered. There was a violation of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of the second applicant and no violation of the first applicant.
Circumstances of the case
The applicants lived in apartments under a social contract of employment. After amendments to the law, the amount of housing allowances for which the applicants were previously entitled to reduce (through a subsidy) the payment of accommodation in apartments were reduced, because according to the new statutory scheme, the applicants had an extra bedroom. Most of the difference in the amount between their housing payment and the reduced amount of housing allowance was replaced by payments under an independent housing allowance scheme, for which the applicants had to apply separately.
The applicants claimed that these changes put them in a more vulnerable position compared to other persons who were affected by the reduction in benefits due to their personal circumstances: the first applicant was taking care of the disabled child around the clock, and the second applicant was included in the “asylum scheme” to protect people who have been affected by domestic violence and who are still at risk of using it.
QUESTIONS OF LAW
Concerning compliance with Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention. (a) General principles. In the context of Article 1 of Protocol No. 1 to the Convention, in matters relating to general measures of an economic or social strategy, States generally enjoy wide discretion under the Convention, and the Court generally respects the choice of the legislator, unless it “clearly had no reasonable basis”.
However, in the context of Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention, although the margin of appreciation in the context of general economic and social measures was in principle extensive, these measures should nevertheless be implemented in such a way as not to violate the Convention prohibition of discrimination and comply with the requirement of proportionality. Accordingly, even the wide limits of discretion in economic or social policy did not justify the adoption of laws or practices that would violate the prohibition of discrimination. Consequently, in this context, the Court limited its consent to respect the choice of the legislator when it was “manifestly ill-founded” if the alleged discrepancy in treatment was due to a temporary / transitional measure, which is part of the scheme used to correct historical inequalities. Outside of this context, given the need, for example, to prevent discrimination against persons with disabilities or to enhance gender equality, “extremely compelling reasons” must be given before such a difference in treatment is deemed relevant to the Convention.
(b) Application of the above principles in the present case. The amendments applied to all persons who used the benefits scheme without distinction with reference to their characteristics, including disability or gender. The applicants were treated the same way as other recipients of housing allowance, since their right to an allowance was reduced on the same grounds and by the same criteria as other recipients of the allowance. Thus, the question arose of indirect discrimination. It was necessary to consider whether the UK authorities had made a discriminatory mistake without making an exception in the applicants' favor on the ground that their personal circumstances were significantly different from those of other beneficiaries and caused damage to them as a result of the application of the appealed policy.
The foreseeable consequence of the reduction in housing allowance was that all recipients of the allowance, to which the reduction spread, risked losing their housing. Indeed, authorities in the United Kingdom argued that this instability was the purpose of applying the new scheme: forcing families to move. The applicants were in a significantly different situation, and such a policy caused them particular harm, since they had an urgent need to stay in their specially equipped homes for reasons directly related to their status.
Having found that the applicants who were treated in the same way as other recipients of housing allowance, although their personal circumstances were completely different and who were particularly affected by the measure complained of, the Court must find out whether the failure of the Government to accept this distinction is considered discriminatory. In the circumstances of the applicants' cases, when the alleged discrimination was based on the principle of disability and gender and was not caused by a provisional measure taken in good faith to remedy the inequality, very good reasons were required to justify the application of the complained measure to the applicants.
(i) The first applicant. Although it was recognized that for the first applicant any relocation was extremely destructive and extremely undesirable, relocation to a smaller, properly equipped housing would not in principle contradict the recognized needs of persons with disabilities living in specially equipped housing, but without the medical need for “additional "bedroom.
The independent apartment payment scheme had a number of significant drawbacks, including, inter alia, that the decision to pay these amounts was free discretion and the duration of these payments was not determined. In fact, the first applicant was provided with payments for several years after the amendment of the legislation on benefits. Although the independent apartment payment scheme could not be described as guaranteeing the same level of confidence and stability as the previous scheme of the established housing allowance, its presence, together with the accompanying guarantees, was a good enough reason to convince the Court that the methods used to implement the scheme, they had a reasonable proportional relationship with the legitimate aim pursued. Consequently, the difference in treatment indicated in the first applicant's case was substantiated.
There was no violation of Article 14 of the Convention in respect of the first applicant (accepted unanimously).
(ii) The second applicant. In the second applicant’s case, the legitimate aim of the scheme to force persons in houses with “extra” bedrooms to change their housing to a smaller one was contrary to the goal set by the scheme for providing shelter from domestic violence and to allow those at risk of violence to be safe at home if would want it.
Considering two conflicting legitimate goals, the Court decided that the consequences of the treatment of the second applicant or other persons living in houses protected by the asylum scheme, as well as other recipients of housing allowance, who suffered from the new scheme, were disproportionate in the sense that they did not meet the legitimate aim of this measure. The United Kingdom did not provide any good reason to justify why the objectives of this scheme were set above the scheme that allowed victims of domestic violence who were protected to remain safe at home. In this context, the provision of independent payments to compensate for the payment of housing did not make proportional the relationship between the methods used and the goal set, which was part of a scheme aimed at forcing residents to move out of their homes, which was confirmed by established shortcomings.
Consequently, the application of legislative changes to a small and easily defined group of the population was not justified and was discriminatory.
In the case, there was a violation of Article 14 of the Convention in respect of the second applicant (adopted by five votes in favor and two against).
In application of Article 41 of the Convention. The Court awards the second applicant EUR 10,000 in respect of non-pecuniary damage.