For the latest news on the judicial review, see http://www.leighday.co.uk/News/2013/September-2013/Bedroom-Tax-to-be-challenged-in-the-Court-of-Appea
Ten claimants, five adults and five children, submitted an application for judicial review of the under-occupancy penalty or “bedroom tax”. Leigh Day & Co and Public Law Solicitors are acting for five disabled adults and Hopkin Murray Beskine solicitors are acting for five disabled children.These ten cases were heard in the High Court in May 2013 and the judgment was handed down on 30 July 2013. The judge found in favour of the Government but the claimants have been given leave to appeal to the Court of Appeal; it is expected that the appeal hearing will take place in October. For further details, see http://www.leighday.co.uk/News/2013/September-2013/Bedroom-Tax-to-be-challenged-in-the-Court-of-Appea
Documents relating to the judicial review:
- Full judgment: http://wearespartacus.org.uk/wp-content/uploads/2013/07/Bedroom-tax-judgement.pdf
- Statement from Richard Stein, Leigh Day & Co: http://wearespartacus.org.uk/wp-content/uploads/2013/07/Richard-Stein-statement.pdf
- Pre-judgment briefing (with full details of all ten cases): http://wearespartacus.org.uk/wp-content/uploads/2013/07/Bedroom-Tax-briefing-July-2013.pdf
Successful tribunal cases
Four tribunal cases have been won in Fife, on the basis of room size – for details see http://www.insidehousing.co.uk/regulation/full-details-of-first-bedroom-tax-tribunal-rulings/6528701.article, and for further insights, see http://www.disabilityrightsuk.org/news/2013/september/bedroom-tax-rulings-concern-dwp.
DWP has decided to appeal the Fife judgements and has also issued further guidance to local authority benefit departments – see http://www.disabilityrightsuk.org/news/2013/september/dwp-appeal-fife-bedroom-tax-decisions
In addition, a blind claimant in Westminster has won his tribunal appeal on the basis that his spare “bedroom” was not a bedroom at all, see http://www.disabilityrightsuk.org/news/2013/september/first-english-bedroom-tax-tribunal-win
There has been one successful tribunal case on human rights grounds (Article 14 ECHR) – that of a severely disabled woman in Glasgow who is unable to share her bedroom with her husband - http://govanlc.blogspot.co.uk/2013/10/european-convention-of-human-rights.html This highly significant case is discussed on Joe Halewood’s blog: http://speye.wordpress.com/2013/10/01/the-bedroom-tax-is-manifestly-without-reasonable-foundation-says-judge-at-appeal-appeal-appeal/ and in the Guardian: http://www.theguardian.com/society/2013/oct/01/bedroom-tax-breached-human-rights
Links, articles and downloads
- The bedroom tax court judgment has thrown up some puzzling anomalies (30 July 2013, Guardian)
- “Bedroom tax” judgement to be appealed (30 July 2013)
- The bedroom tax and disabled tenants (9 July 2013, Chartered Institute of Housing)
- Legal round-up (2 June 2013)
- This week, the High Court will decide the future of the bedroom tax (14 May 2013)
- “Bedroom tax” hearing starts 15 May (9 May 2013)
- Update on We are Spartacus legal challenges (23 April 2013)
- Challenging your ‘bedroom tax’ decision (Govan Law Centre toolkit, April 2013)
- Government fails to prevent legal challenge to the bedroom tax (March 2013)
- The ‘bedroom tax’ is the Coalition’s latest omnishambles (March 2013)
- Disabled people mount legal challenge to the bedroom tax (March 2013)
- The bedroom tax undermines disabled people’s human rights (October 2012)
- Closing the Door on the Law - Parliamentary briefing (October 2012)
- Loaves and Fishes – Discretionary housing payments (August 2012; written in response to DWP consultation on DHP’s)
The ‘bedroom tax’ is a nickname for the under-occupancy penalty for housing benefit claimants in social housing, introduced under the Welfare Reform Act 2012 and coming into effect in April 2013. Under the new rules, claimants deemed to have one ‘spare’ bedroom will lose 14% of their housing benefit and those deemed to have two or more ‘spare’ bedrooms will lose 25%. Claimants will be expected to move to a smaller home or to meet the cost out of other benefit money, and many are saying they will have to cut down on food or heating to do so. In most parts of the country, there is a major shortage of smaller homes for claimants to move to. The Housing Benefit (Amendment) Regulations 2012 state that claimants are entitled for a bedroom for each of the following:
- a couple
- a single adult (who is not part of a couple)
- two children of the same sex
- two children (of different sexes) who are less than 10 years old
- a child (where there is no other child with whom they can share)
- someone (who lives elsewhere) who provides overnight care to the claimant or his or her partner, if one or both is disabled
In addition, in response to political pressure, a ministerial statement was published on 12 March, providing for:
- approved foster carers to be allowed an additional room, and
- adult children in the Armed Forces, who are deployed on operations but who continue to live with their parents, to be treated as continuing to live at home.
The Government initially allocated around £25m to local authorities to enable them to provide help via discretionary housing payments to disabled people; another £35m was allocated following the publication of the High Court judgment in July. The Minister has stated:
“I am also issuing guidance to local authorities emphasising that Discretionary Housing Payments remain available for other priority groups including the needs of people whose homes have had significant disability adaptations and those with longterm medical conditions that create difficulties in sharing a bedroom.”
The latest version of the guidance for local authorities on allocation of DHP’s is available at http://www.dwp.gov.uk/docs/discretionary-housing-payments-guide.pdf.
On 12 March 2013 the DWP took the decision not to proceed with their appeal in the Burnip, Trengrove & Gorry case; the implication of this for local authorities is explained in an urgent bulletin to local authorities: 980-HB-CTB-U2-2013-Final. Briefly, local authorities are instructed to follow the precedent set by the decision of the Court of Appeal, to allow a separate bedroom for a disabled child if they have medical evidence of the need. In the judgment handed down on 30 July, the Government was criticised for failing to enshrine the Burnip ruling in regulations; such regulations are expected to be published in the Autumn, 2013.
In October 2012, Sue McCafferty produced a Parliamentary briefing - Closing the Door on the Law - to inform both peers and MP’s considering the regulations in committee. The briefing explains why the ‘bedroom tax’ is discriminatory and undermines disabled people’s human rights and why discretionary housing payments are not a suitable vehicle for mitigating its effect on those who are unable to either move or pay the penalty.
Political pressure has been intense, since MP’s of all parties have been consulted by constituents who will be unable to either pay the penalty or move home. The issue was raised in Prime Minister’s Questions on Wednesday 6 March when David Cameron made incorrect statements about how the rules will operate, but which appeared to result in the Ministerial Statement explained above. However, since the alterations being made are piecemeal and confusing, we very much hope that either political pressure or the appeal against the judgment of 30 July – or both – will result in the regulations being repealed, so that there won’t be ‘difficult cases’ needing protection at the whim of local authorities’ discretion.
Problems with Discretionary Housing Payments
In Loaves and Fishes, written in August 2012 in response to a DWP consultation on DHP’s, Sue McCafferty explains that since the Government has not allocated sufficient funding to meet the needs of those in the specific circumstances stated, and since DHP’s will also be needed as a result of other aspects of welfare reform (such as the benefit cap and the changes to council tax benefit), there will not be sufficient resources to help all disabled people who need to remain in their current home. Sue also explains a number of other reasons why DHP’s are not suitable to mitigate the effects of the policy on disabled people, including that their discretionary nature means claimants cannot appeal apparently unreasonable or irrational allocations and that DHP’s are more usually considered suitable to provide temporary help. The means test for DHP’s is also very tight, and some councils are taking DLA income into account when assessing a family’s income, despite obiter comments by the Court of Appeal in Burnip that DLA and ESA are not intended to be used for rental payments.