Latest update: At the hearing on Tuesday 5 March, the judge gave DWP 14 days to make a case against the judicial review, saying it was too soon to have a full hearing before 1 April. However, if the case does goes ahead, there could be a full hearing in early May. Some of the judge’s comments were encouraging… we just need to wait to see what will happen next!
Next month, the Coalition Government’s welfare reform policies will start to bite; our fears will become reality. One of the first policies likely to cause significant hardship is the so-called bedroom tax, more properly known as the under-occupancy rules for housing benefit claimants in social housing, Regulation B13. We first wrote about this in October last year, when we published a Parliamentary briefing, by Sue McCafferty, to inform committee debates on the under-occupancy rules.
As April gets closer, many media reports have focused on the fundamental unfairness of this provision and the possible outcomes for individual families, disabled people, children and social landlords. Opposition MP’s have spearheaded debates in which they have given numerous accounts of the reality of their constituents’ lives and what will happen when Regulation B13 comes into force.
There are strong legal arguments, on human rights and equality grounds, against the application of Regulation B13 to disabled people, so we have been determined to challenge it in the courts; we identified two disabled claimants whose circumstances make them suitable to take the case.
On Friday 1 March, Leigh Day solicitors issued an application for judicial review against the Secretary of State for Work & Pensions on behalf of disabled clients Jacqueline Carmichael and Richard Rourke. Very much in line with the thrust of our briefing, our barrister – Kate Markus of Doughty Street Chambers – has made under Article 14 of the European Convention on Human Rights, the UN Convention on the Rights of Persons with Disabilities and the Equality Act, summarised below:
- The statutory criteria as to the permitted number of bedrooms are discriminatory in that they fail to take into account the different needs of disabled people as compared to non-disabled people. In other words, under the under-occupancy regulations, housing benefit is not available for the number of bedrooms required to meet the objective needs of disabled people who may need the extra room – for example, because a disabled partner cannot share a room or because a room is used storing disability-related equipment.
- The reduction in maximum rent fails to take into account the different consequences of the reduction for disabled people as compared with non-disabled people – for example, the need to live close to those who provide vital informal support or the need to retain the adaptations made to their current home.
- There is no justification for the discriminatory effect of Regulation B13.
- The DWP’s Equality Impact Assessment is insufficient to discharge the public sector duty to promote equality as it has no regard to the different impact of the regulations on disabled people.
- The DWP has failed to consider whether or how to mitigate the impacts of the regulations on disabled people – who are also generally less able to fund the shortfall or to downsize.
- The availability of discretionary housing payments (DHP’s) is not sufficient mitigation of the impacts on disabled people, especially as there is unlikely to be sufficient funding to meet the shortfall for all disabled claimants who need help. There is no consideration of the impact on disabled people who do not qualify for DHP’s.
Because Regulation B13 comes into force next month, a request has been made for an urgent hearing and for interim relief, since claimants will be expected to pay the under-occupancy charge from April.
The initial hearing in these cases and other cases involving disabled adults and children* is to take place on Tuesday, 5th March. We will provide an update as soon as there is more news.
*An application for judicial review has also been lodged by Hopkin Murray Beskine solicitors on behalf of five families with disabled children who have a medical need for a separate room but are expected to share under the under-occupancy rules. For further details, see: Children launch legal challenge to bedroom tax