The Supreme Court will this week look at whether the controversial ‘bedroom tax’ discriminates against vulnerable members of society, in a case that could have major ramifications for the entire housing benefit system.
The hearing will take place over three days before a panel of seven Supreme Court justices, headed by the court’s president Lord Neuberger. They will hear argument in four appeals against Court of Appeal rulings on the changes to housing benefit regulations.
One of the most politically charged benefit changes introduced by the coalition government, the social sector size criteria (‘bedroom tax’) came into effect on 1st April 2013 as part of wider government welfare changes. The size criteria in the social-rented sector allows for one bedroom for each person or couple living as part of the household, and states that two children under 16 of the same gender are expected to share, and two children under 10 are expected to share regardless of gender. Any bedrooms beyond this are deemed ‘spare’ by the government. Social tenants with a ‘spare’ bedroom are confronted with a choice between downsizing to a smaller property, or facing a cut in their housing benefit – 14% for people deemed to have one extra bedroom and 25% for those with two or more extra bedrooms.
Ministers at the Department for Work and Pensions (DWP) say the policy helps control welfare costs and addresses overcrowding in the social-rented sector by freeing up social housing.
According to the DWP’s own Equality Impact Assessment published in June 2012 before the policy was introduced, of the 660,000 people adversely affected by the bedroom tax, 420,000 of those have a disabled person in their household.
One of those 420,000 is Jayson Carmichael, the full-time carer of his wife Jacqueline. Jacqueline has spina bifida, which leaves her partially confined to a specialist bed. She and her husband have lived in an adapted two-bedroom Housing Association flat for almost 15 years. As a result of Jacqueline’s health issues, the couple cannot share a bed and there is no room in their bedroom for two beds so Jayson sleeps in the other room. Under the bedroom tax regulations, the government has said that the Carmichaels are under-occupying and that they have to move, or continue to face a 14% reduction (£12 a week) in their housing benefit.
Jayson Carmichael was one of 10 claimants who challenged the bedroom tax in the High Court in 2013, complaining that the regulations unlawfully discriminated against disabled people who need an additional bedroom by reason of their disability. The High Court accepted that the regulations discriminated against disabled adults, but said that the discrimination was justified and therefore lawful. Lord Justice Laws and Mr Justice Cranston accepted the DWP’s argument that it had recognised the discrimination and provided adequate mitigation, in the form of £25 million in ‘discretionary housing payment’ (DHP) – an extra pot of money available to local councils to help those affected by the penalties.
The Court of Appeal refused to overturn the High Court’s ruling in 2014, finding that the flexibility of DHPs was appropriate to meet the changing disability-related needs of disabled people. That decision is the subject of one of the appeals to be heard by the Supreme Court this week.
The Carmichaels’ appeal has been joined with those of a number of others who have challenged the discriminatory impact of the bedroom tax in the High Court and the Court of Appeal.
Paul and Sue Rutherford care for their 15-year-old seriously disabled grandson, Warren, in a specially adapted three-bedroom bungalow in Pembrokeshire.
Warren requires round-the-clock care from at least two people: he is unable to walk, talk or feed himself and is doubly incontinent. Whilst they provide the majority of Warren’s care, neither of his grandparents are in good health, so at least twice a week professional carers stay overnight to look after Warren – providing Mr and Mrs Rutherford with much-needed respite. Without the help of the carers, they could not cope; Warren would have to go into a care home.
Since 1 April 2013, the Rutherfords’ third bedroom, used by the carers, has been deemed ‘spare’ by the government, resulting in a 14% reduction in the family’s housing benefit. After an initial problem with the payment of DHP, the shortfall was eventually covered by the local authority’s discretionary fund. Nevertheless, the Rutherfords argued before the High Court that the bedroom tax unlawfully discriminated against them on grounds of disability.
‘A’ has lived in a three-bedroom council house since 1989, and is a victim of repeated and severe violence at the hands of a former partner, X, including the conception of a child as a result of her rape by him. She continues to receive threats from X and suffers from post-traumatic stress disorder and other mental health difficulties as a result of her experiences. A’s house has been specially adapted under the Sanctuary Scheme, to protect her and her son from X. One such adaption was to convert the third bedroom into a secure panic room.
Because A’s adapted home has three bedrooms (including a secure ‘safe room’), she was hit by the bedroom tax when it was introduced. A received DHPs which covered the shortfall in her rent. However, she maintained that the failure to make an exception under the bedroom tax regulations for victims of domestic violence living in accommodation adapted under the Sanctuary Scheme – the majority of whom are women – was unlawful sex discrimination.
Both the Rutherfords and A’s challenges to the bedroom tax failed before the High Court. But last month the Court of Appeal overturned both High Court rulings and found in each case that the government had failed to justify the discrimination.
In the Rutherfords’ case, the Court of Appeal could find no rational reason for why disabled adults, who required an overnight carer, were entitled to a spare bedroom under the regulations (following a previous legal challenge) and yet disabled children, who also required an overnight carer, were not. This was especially so where the Secretary of State was obliged to treat the rights of the child as a primary consideration, under the UN Convention on the Rights of the Child.
In A’s case, the Court of Appeal concluded that the bedroom tax regulations unlawfully discriminated against A on grounds of sex, as the availability of DHPs could not save them from having a discriminatory effect.
The government’s appeal against the Court of Appeal’s ruling is another of those to be heard before the Supreme Court this week.
In each of the many legal challenges to the bedroom tax, the government has relied heavily upon the availability of DHPs to justify the policy’s discriminatory effect. But the clue is in the name – local authorities making awards of DHP have a discretion as to whether or not to make a payment in a particular case, a discretion as to the amount of the payment, and a discretion as to the period for which the payment is to be made.
DHPs cannot continue to be relied upon as an adequate mitigating measure against the bedroom tax by the government; it offends the basic principles of fairness to replace a right (housing benefit) with a discretion.
Governments can always save money by behaving unfairly. In times of austerity, the courts ought to be vigilant to this.
Watch the hearing live on the Supreme Court website.
Mary-Rachel McCabe is a pupil barrister at Doughty Street Chambers. She tweets @MaryRachel_McC