Judicial review to go ahead on impact of 'bedroom tax' on separated families

Human rights campaign group Liberty has been given permission by a High Court judge to bring a judicial review claim over the impact of the Government’s spare-room subsidy or ‘bedroom tax’ on separated families with shared custody of children.

Liberty said it was challenging the lawfulness of regulations that cut parents’ housing benefit if they have a ‘spare room’, “even if that room is used by a child who lives with them on a part-time basis”. A child is only entitled to a bedroom in the household where their parent or guardian receives child benefit (more likely, on average, to be the mother’s household).

The group, which is representing three claimants, said the challenge would be on the basis that the regulations were irrational and a violation of Articles 8 and/or 14 of the European Convention on Human Rights (the right to a private and family life and no discrimination).

One of the claimants has a son who lives with him four days a week in his two-bedroom house. According to Liberty, the scheme means the son is not considered part of his household. The father has therefore seen his housing benefit cut by 14%.

Rosie Brighouse, Legal Officer for Liberty, said: “A child’s bedroom is their sanctuary and these parents are providing stable and secure homes, not ‘under-occupying’ their properties.

“This one-size-fits-all rule discriminates against families outside a certain narrow mould, meaning that our clients represent thousands of parents who want to be part of their children’s lives.”

Liberty said it would be seeking a ruling that the relevant provision – Regulation B13 of the Housing Benefit (Amendment) Regulations 2012 – is incompatible with its clients’ and their children’s rights under Article 8 and/or Article 14 of the European Convention – and thus unlawful under section 6 of the Human Rights Act.

The group will argue that Article 8 requires the existing level of housing benefit to be preserved in order to enable family life to continue. It will also claim that Regulation B13 is discriminatory under Article 14 on the grounds of its clients’ status as the ‘secondary’ carer of their children and indirectly discriminatory on grounds of sex, “given that in separated families the majority of resident parents are female while the majority of non-resident parents are male”.

News of the challenge came as one of the appellants in the recent Court of Appeal case of R (MA & Ors) v The Secretary of State for Work and Pensions [2014] EWCA Civ 13 won an appeal.

The Tribunal is reported to have found that the cut in housing benefit amounted to unjustified discrimination on the grounds of disability, contrary to Article 14, and that the regulations had to be interpreted so as to allow Jaqueline and Jayson Carmichael separate rooms.

For an analysis of the Carmichael ruling, which is thought to be the first such decision since the Court of Appeal’s decision in MA and is significant given the CA's comments in relation to the couple's circumstances, go to the Nearly Legal site. The Carmichaels were represented by Sarah Steinhardt of Doughty Street Chambers, instructed by Leigh Day.

See also: Room for manoeuvre – Dean Underwood's analysis of the Court of Appeal ruling in MA.