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Supreme Court finds DWP acted unlawfully in two 'bedroom tax' cases

The Government’s introduction of the so-called ‘bedroom tax’ or ‘spare room subsidy’ was unlawful in two judicial review cases, the Supreme Court has ruled.

However, in MA & Ors, R (on the application of) v The Secretary of State for Work and Pensions [2016] UKSC 58 the judges ruled in favour of the Department for Work & Pensions in five other cases brought before the court.

The claimants in the cases all lived in social sector housing where the number of bedrooms exceeded the number to which they were entitled to under Regulation B13 of the Housing Benefit Regulations 2006 (SI 2006/2013).

The ‘bedroom tax’ has, since 1 April 2013, seen people in the social rented sector deemed to have one spare bedroom have their housing benefit reduced by 14%. Those deemed to have two, or more, spare bedrooms have meanwhile had their housing benefit reduced by 25%.

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The claimants, whose housing benefit was capped as a result, challenged the validity of Reg B13 as it applied to their individual circumstances on the basis that it violated their right to non-discrimination under article 14 of the European Convention on Human Rights, in conjunction with their right to family life under article 8 and/or property under article 1 of the First Protocol (there was no dispute that housing benefit falls within the scope of these latter articles). They also argued that there had a breach of the Public Sector Equality Duty.

The Supreme Court ruled that the Government had acted unlawfully against Jacqueline Carmichael, and her husband, full time carer, Jayson, after their housing benefit was reduced by 14%. Mrs Carmichael has spina bifida and requires a hospital-type bed that she cannot share with her husband. There is no space for another bed in the bedroom.

Unanimously allowing Mrs Carmichael’s appeal, the judges said her position was directly comparable to the children in the Gorry case. Lord Toulson said: “There is no reasonable justification for these differences. The Court of Appeal … was persuaded … that there was an objective reasonable justification for treating Mrs Carmichael less favourably than a child in like circumstances, because the best interests of children are a primary consideration. I can see that there may be some respects in which differential treatment of children and adults regarding the occupation of bedrooms may have a sensible explanation. Expecting children to share a bedroom is not the same as expecting adults to do so.

“But I cannot, with respect, see a sensible reason for distinguishing between adult partners who cannot share a bedroom because of disability and children who cannot do so because of disability. And the same applies also to distinguishing between adults and children in need of an overnight carer.”

The judges dismissed the DWP’s appeal in the case of Paul and Susan Rutherford who provide around-the-clock care for their disabled grandson in a specially-adapted three-bedroom home in Pembrokeshire. The third bedroom is used by overnight carers. The couple have received discretionary payments from the local authority to cover the shortfall in rent as a result of the bedroom tax.

The Court of Appeal ruled that the bedroom tax policy unlawfully discriminated against children with disabilities who need overnight care, and the Supreme Court agreed.

Sophie Earnshaw from the legal team at Child Poverty Action Group, who acted for the Rutherfords, said: “Today’s judgment at last establishes that disabled children have the same rights to accommodation for care as disabled adults. It is a just result -  any other outcome would have been nonsensical.

“In this case, disabled children were being treated worse than adults. For Paul and Susan Rutherford, the judgment lifts an enormous burden of uncertainty about their grandson’s future – an uncertainty they’ve had to live with since 2013 when the legal process started.”

The Supreme Court concluded in relation to the other MA claimants (Mr Rourke, Mr Drage, JD and Mr Daly) that their need for an additional bedroom was not connected, or not directly connected, to their/their family member’s disability.

Lord Toulson said there may be good reasons for them to receive state benefits to cover the full rent, but it was not unreasonable for their claims to be considered on an individual basis under the Discretionary Housing Payments (DHPs) scheme.

Karen Ashton of Central England Law Centre, solicitor for three of those claimants (Mr Daly, Mr Drage and Ms JD), said: “The Supreme Court’s decision remedies the anomaly whereby disabled adults and children were treated differently if they needed a bedroom for overnight carers or where a bedroom could not be shared. This is to be welcomed.

“But their judgment leaves thousands of disabled people - who need larger accommodation for other reasons connected to their disability - without an entitlement to housing benefit to pay their full rent, despite the fact that they are unable to work to find the extra money. The court may have found this to be lawful, but that does not mean that it’s fair.”

In the final case, relating to A, whose current house had been adapted under the Sanctuary Scheme for women under severe risk of domestic violence, the Supreme Court by a 5-2 majority allowed the Secretary of State’s appeal and dismissed A’s cross appeal over the rejection of her Equality Act claim.

Lord Toulson said: “….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.”

The judge said he had considerable sympathy for A as she had strong social and personal reasons for staying, however, these were unrelated to the property size. The fact that people may have strong reasons unrelated to the number of bedrooms, for wanting to stay in their property was though taken account of through the DHPs. It therefore did not follow that A had a valid claim for unlawful sex discrimination.

Lord Toulson added that he did not see that the duty to victims of gender-based violence mandated the means by which such protection was provided. “A has not established that the adoption of Reg B13 has deprived her, or is likely to deprive her, of a safe haven.”

Lady Hale and Lord Carnwath would have dismissed the DWP’s appeal.

A’s lawyers, Hopkins Murray Beskine, said they intended to challenge before the European Court of Human Rights the failure of the majority of the Supreme Court to require the Government to create a formal exemption from the size criteria for those who live in Sanctuary Schemes. 

Rebekah Carrier, A’s solicitor, said: “Although we welcome today’s ruling that A must continue to receive Sanctuary Scheme protection for as long as she needs it, we are disappointed and frankly baffled by the majority’s finding that there is no need to formally exempt Sanctuary Scheme users from the effects of the bedroom tax.”

In a bulletin to local authorities' housing benefit staff the DWP said: “No immediate action needs to be taken by local authorities (LAs ) following this judgment. The Court did not strike down the legislation underpinning the size criteria. As such LAs must continue to apply the rules when determining Housing Benefit claims as they did before today’s judgment and the judgment does not require any LA to re -assess the HB of existing claimants. LAs should continue to award DHPs to claimants who they consider require additional financial support.

“The Department is considering the Court’s judgment and will take steps to ensure it complies with its terms in due course. The Department will notify LAs once a decision has been taken.”

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