The bedroom tax
In 2012 the Government through the Department of Works and Pensions (DWP) introduced changes to Housing benefit though the Housing Benefit Regulations 2006 (SI2006/2013) (Reg B13) “Removal of the spare room subsidy”. The legislation applied to people in social housing who were deemed to have a larger number of bedrooms than they needed and sought to make a deduction in their housing benefit entitlement of 14% for one bedroom and 25% for two bedrooms.
The principle they argued, already applied to private rented sector tenants, so it was one of “fairness”. The counter argument, was the new HB restrictions were not applied retrospectively, as the social housing tenant’s deductions would be – effectively coming into force in a big bang approach in April 2013. The further issue for social tenants was that the granting of social housing was not often a choice, as with private sector, with applicants ending up with a home that had more bedrooms than they may have required, (because of the shortage of single and two bedroom properties) with an applicant’s refusal to accept potentially impacting on any duty to provide further assistance.
When transitioning the legislation, the government knew there would be issues of contention providing wrap around protection for the elderly by means of an exemption for persons over pension credit age. The government also, anticipating some legal challenges, providing additional momentary resources to local authorities through topping up existing Discretionary Housing Payments (DHP) made possible under the Discretionary Financial Assistance Regulations (SI 2001/1167) which extends financial housing assistance in deserving cases.
The key word though is “discretionary”, with Local authorities being able to determine which criteria was to be satisfied for a successful claim. Further there is no automatic right to appeal if turned down, however, because the decision was administered by an “authority” DHP refusals were subject to judicial review. This judicial review process means a lengthy trawl through the 1st tier tribunal all the way up to the supreme court, the highest legal authority in the UK.
DHP therefore provided DWP backed discretionary assistance for such criteria as: fostering, armed forces personnel (where the family home remained the principle home), the need for overnight carers etc.
Since 2013 cases were also being brought by claimants arguing; the definition of a ‘bedroom’, reasonable size, duel parental access following divorce, and other circumstances. By far, the most contentious was the impact on people with life threatening or terminal illness and people with disabilities who were unable to share a bedroom because of their partner or sibling’s disability.
Many advocates argued that such cases were either known about or ignored by government and not adequately accommodated through an exemption or relief via the DHP funds. They also argued, had they done so, the case for introduction of the spare room subsidy would have been less attractive to parliament.
Perhaps the most prominent of these case, was Gorry v Wiltshire County Council; where it was successfully argued, that it was unreasonable for two children of the same sex who suffered severe disabilities to share a bedroom. Or Burnip v Birmingham City Council (2012) EWCA Civ 629,  LGR 954. Where the presence of a carer was required throughout the night. Both cases required the government to include a legislative amendment to B13.
The Supreme Court decisions
The recent November 9th 2016 decision of the Supreme Court considered that the Housing Benefit Regulations 2006 (SI2006/2013) (Reg B13) “Removal of the spare room subsidy, as it applied to 7 claimants who said the bedroom tax violated their rights, discriminating against the claimants’ right to family life, and or that the regulations were in breach of the public sector equality duty (PSED). In detail they;
- contend that there was a breach of the Secretary of State, Public Sector Equality Duty (PSED) under the Equality Act 2010, which obliges public authorities to have regard to the need to eliminate discrimination and advance equality of opportunity for those who share protected characteristics and those who do not.
- have a right to non-discrimination under Article 14 of the European Convention on Human Rights (ECHR), in conjunction with a right to family life under Article 8 and or property under Article 1 of the First Protocol (Housing Benefit falls within the Scope of these latter articles).
The supreme court considered the cases with each having different circumstances but covering the above alleged breaches. 6 claimants either had a disability or lived with a family member who had a disability, arguing they required an extra bedroom to enable them to cope with the medical consequences of the disability, and that the bedroom tax unfairly discriminated against them.
The 7th claimant (A) is a survivor of rape and assault being allocated a home with a secure “safe room”. She claimed the bedroom tax financially penalised the safe room and discriminated against women who live in a “sanctuary scheme”.
Conclusion of the cases
In considering the cases the supreme court dismissed 5 cases. While the judges accepted the bedroom tax had had a discriminatory impact on 5 of the claimants, there was no direct connection between disability and the need for an extra room, ruling theirs was a “social need”, rather than a medical one. Their “needs” could be met by applying for financial support (DHP). In A’s case, (included in the 5) the judges found in favour of the government by majority of 5-2 and that while she should continue to have “sanctuary”, the bedroom tax was not discriminatory against women.
The judges did however agree there were unreasonable differences in the way housing benefit regulations treated adults and children and found this “manifestly without reasonable foundation”.
The Carmichaels case, represented by Leigh Day solicitors, hinged on Jaqueline Carmichael who is disabled and cannot share a room with her husband, Jayson. The case is similar to that of Paul and Susan Rutherford who care for their severely disabled grandson, Warren (now 17), in a specially adapted three-bedroom bungalow in Pembrokeshire, Wales. Both require a separate bedroom to accommodate a disability.
The judges ruled that it was unfair that Jaqueline Carmichael, whose medical condition required her to sleep in a different bed to her husband, was hit by the bedroom tax, while households where children sharing with a severe disability needed separate rooms (Gorry).
Likewise, while adults who needed an extra room for overnight carer were exempt from the bedroom tax, children such as Paul and Susan Rutherford’s grandson Warren (now 17), who has a rare genetic disorder being unable to walk, talk or feed himself – were not. These differences were “manifestly without reasonable foundation” and ruled in favour of the two cases.
As a result of the claims brought by Carmichael and Rutherford households in similar circumstances will now be exempt from the bedroom tax with the DWP having to take steps to amend guidance to ensure it complies with the ruling.
The failure of A’s case means that there will be no exemption and no specific requirement for local authorities to utilise DHP to offset the bedroom tax in sanctuary schemes. However, A’s case is to be challenged in the European Court of Human Rights by her solicitors.
While many will take heart in the ruling by the 7 judges, it does not fundamentally challenge the legality of the bedroom tax. For many, the cases expose the sheer bloody-mindedness of the government to defend its policy in these cases all the way to the supreme court, wasting considerable public money and resources in doing so, when there is clearly a will of the people to end this cruel imposition placed on our severely disabled and terminally ill people.
In Scotland, the bedroom tax has been largely mitigated by the Scottish government while in Wales the bedroom tax still applies despite calls from the Welsh Tenants and others to do the same. Surly its time we put clear water between the conservative view of how we support disabled, chronically ill and children in Wales by introducing a similar measure as Scotland.