Tuesday, 30 July 2013

What the Bedroom Tax case reveals about Equality law

The much-despised "bedroom tax" (actually an under-occupancy penalty, which is the accurate as well as the official description of a reduction in benefit occasioned by the presence of what are deemed to be spare bedrooms) does have a reasonable purpose. By forcing social tenants on Housing Benefit to pay rent for bedrooms they don't need, it discourages people from clinging on to large houses once their children, whose existence was the reason they were awarded the properties in the first place, have grown up and moved out. Social housing is in short supply. In many areas there's a huge backlog of families needing to be housed. Encouraging people to downsize once they no longer need so much space, freeing accommodation for families who really do need it, is no bad thing.

The rationale of the policy is rather undermined by the fact that it doesn't apply to pensioners, when it is often pensioners who are over-occupying social housing. There are other practical problems with it. For one thing, there are often no suitable smaller properties for tenants to move into.  Many councils (for example Cambridge) have been bulldozing perfectly viable smaller properties claiming that there is insufficient demand for them.  But the bedroom penalty, as I'm going to call it, will inevitably increase the demand for smaller properties. Which is a good thing. It becomes oppressive and counterproductive when tenants who can't afford to pay the penalty are unable to move - or if they do move, can only be housed by private landlords at a higher rent than the social rents that they are already paying. The basic problem, the shortage of affordable housing, is in no way addressed by the vindictive hammering of some of the poorest people in society if they have no alternative but to live in the properties they already occupy. Nor is it likely to save much money.

The penalty can be rather harsh when applied to disabled people, or to the parents of disabled children, who may live in homes that have been specially adapted to their needs (often at considerable public cost) or who can't share bedrooms without the lives of other family members being unacceptably disrupted. It was the situation of such claimants that led a number of them, together with their supporters, to bring a case at the High Court, judgement in which was delivered this morning.

On the face of it, they had a reasonable case that the rules was discriminatory, since the impact of the bedroom penalty might often fall more harshly on them than on most able-bodied people. The government has established a discretionary fund to alleviate hard cases; but a discretionary fund is by definition discretionary, and it is also limited. Campaigners want the right to receive full housing benefit, and they want the court to agree that failing to grant that right amounts to unlawful discrimination. The court didn't oblige. It held that the existence of a discretionary fund (which the government has now generously doubled) was sufficient to address any issues with the policy. In particular, the court decided that government policy in a democratic system was not really any of its business.

The judgement, delivered by Lord Justice Laws, is significant for several reasons. Much initial comment has picked out paragraph 74, in which Laws clearly signposts the limits of judicial activism. It will be music to the ears of many worried about interference by the courts in the nitty-gritty of political decision-making, and will be much quoted by government lawyers in the years to come:

Much of our modern law, judge-made and statutory, makes increasing demands on public decision-makers in the name of liberal values: the protection of minorities, equality of treatment, non-discrimination, and the quietus of old prejudices. The law has been enriched accordingly. But it is not generally for the courts to resolve the controversies which this insistence involves. That is for elected government. The cause of constitutional rights is not best served by an ambitious expansion of judicial territory, for the courts are not the proper arbiters of political controversy. In this sense judicial restraint is an ally of the s.149 duty, for it keeps it in its proper place, which is the process and not the outcome of public decisions.

It's not the purpose of the court to decide whether or not a policy is right, he declares, merely that it has been rightly arrived at. At issue is the Public Sector Equality Duty (s.149 of the Equality Act 2010, Harriet Harman's poisoned legacy), which requires public authorities to carry out impact assessments before policies are implemented. The purpose of such exercises, in theory, is to ensure that minority or vulnerable groups (or women) will not be adversely affected, or (more pointedly) that any such adverse effect can be justified. Laws LJ explained his thinking very clearly immediately before the paragraph just quoted:

It is plain that the PSED sets an important standard for public decision-making. Where the protected characteristics specified in s.149 of the 2010 Act are potentially affected by a forthcoming public measure, the decision-maker is obliged to conduct a rigorous examination of the measure's effects, including due enquiry where that is necessary. He does not, however, have to undertake a minute examination of every possible impact and ramification...

... As I have indicated the duty of due regard is not a duty to achieve a particular result. The courts will not administer s.149 so as in effect to steer the outcome which ought in any particular case to be arrived at. The evaluation of the impact on equality considerations of a particular decision clearly remains the responsibility of the primary decision-maker... So, as I have said, the discipline of the PSED lies in the required quality, not the outcome, of the decision-making process. This is well borne out by the learning; but in my judgment it reflects a more general constitutional balance.

The only question then became whether the assessment process was "sufficiently rigorous"; in other words, whether the civil servants had gone through the motions convincingly enough. If they have, then the PSED is fulfilled and the government's decision can only then be overturned by the court if it is "manifestly unreasonable".

The effect of Laws' decision, it seems to me, is to make the assessment process under the PSED even more of a bureaucratic dance than it is already. It denudes it of any real significance beyond the opportunity it gives to civil servants to exercise their ingenuity (for which they are rightly famed). It doesn't prevent policies harmful to particular groups from emerging, but it does require ministers to marshall convincing-sounding arguments to defend them. Which is rarely a problem. The PSED was always liable to be a box-ticking exercise; requiring it to be done "rigorously" makes little difference if the ultimate result isn't open to challenge. Indeed, going through the motions with apparent rigour makes the ultimate result less open to challenge. A point Laws LJ hammered home. To repeat: "In this sense judicial restraint is an ally of the s.149 duty, for it keeps it in its proper place, which is the process and not the outcome of public decisions."

So PSED does little to help members of minority groups who will be adversely affected by government decisions, beyond making them a judicial review less likely to succeed. It rather secures government decisions against challenge, by providing convenient insulation. That's the true purpose of box-ticking exercises: not to help members of vulnerable or minority groups but to help bureaucrats shore up their decisions by setting out procedures for them to follow. Achieving equality means, in a bureaucratic context, achieving adherence to procedural norms, established in the name of equality but which are in most respects neutral administrative tools. Boxes must be ticked; it doesn't really matter which boxes get ticked as long as you tick some boxes. Like other parts of the Equality and Diversity culture, for example many of the obligations laid on employers, the chief beneficiaries of PSED are not people with "protected characteristics" but the cadre of Equality and Diversity professionals who form one of this country's few remaining growth industries.

It's nice to have the true position set out so clearly by a judge, especially one as perceptive and distinguished as Lord Justice Laws.