The bedroom tax limps on

 

Carla Clarke reviews the recent Supreme Court decision in Rutherford and others, and where this leaves the bedroom tax and potential challenges.

The bedroom tax (spare room subsidy in official parlance) continues its controversial existence, reducing a person’s eligible rent for housing benefit (HB) by 14 per cent if s/he is considered to have one spare bedroom and by 25 per cent for two or more spare rooms. However, in a much-anticipated judgment, the Supreme Court, in Rutherford and others, has made a further in-road into its reach.1 R (Carmichael and others) v SSWP [2016] 1 WLR 4550 The Court held unanimously that where a disabled person has a ‘transparent medical need for an additional bedroom’ then there is ‘no reasonable cause to apply the same cap on housing benefit as if the bedrooms were truly under-occupied’. To do so in such circumstances amounts to unlawful disability discrimination.

It would have been difficult for the Supreme Court to have held otherwise. In an earlier decision on joined cases, Burnip and others,2 Burnip v Birmingham CC and others [2012] EWCA Civ 629 3 HB U3/2016, 9 November 2016the Court of Appeal had considered the equivalent to the bedroom tax in the private rental sector where, since 2008, a person’s maximum local housing allowance has been determined by reference, among other things, to the number of bedrooms he/she is entitled to. In Burnip, two of the appellants lived in independent accommodation but, because of the extentoftheir disabilities, they needed the presence of overnight carers and, therefore, an additional bedroom for them. When they first broughttheir case, the appellantswere onlyentitledtoa rentallowance for a one-bedroom property. Bythe time theircases reached the Court of Appeal, the government had already amended the relevant provision in the Housing Benefit Regulations 2006 to provide for an additional bedroom where a claimant (or her/his partner) required overnight care. A joined case, Gorry, concerned two sisters who were both disabled and for whom it was inappropriate for them to share a bedroom because of their individual disability-related needs. Nevertheless, under the regulations, their father’s rent allowance was calculated on the basis that the siblings, being of the same sex, were expected to share a bedroom.

The Court of Appeal had little difficulty in holding that the unamended regulations were discriminatory on the grounds of disability and that there was no justification for such discrimination. In the case of the two disabled adults, they had ‘an objectively verifiable need’ to a two-bedroom property. Furthermore, discretionary housing payments (DHPs), which were potentially available to cover any shortfall between the rental allowance and actual rent, were inadequate to justify the discrimination given their entirely discretionary nature, their unpredictable nature and the lack of guarantee that they would cover the shortfall in rent. Similarly, in the case of the two disabled children, separate bedrooms were needed in circumstances where, but for the disability, the siblings could be expected to share.

Fast forward to April 2013 and we have the introduction of the bedroom tax to the social housing sector via regulation B13 of the Housing Benefit Regulations 2006. Regulation B13 already provides for an additional bedroom in relation to a Burnip situation or a Gorry situation in line with the equivalent provisions for private sector housing. But what of the situations where it is a child/dependent of the claimant who needs overnight care and so an extra bedroom to accommodate the carer, or where it is the claimant and her/his partner who cannot be expected to share a bedroom because of the disabilities of one or both of them? Neither of these situations are provided for in regulation B13, though it is difficult to see on what basis the need is different or how the unjustified discrimination in one scenario could somehow be justified in the other.

The Supreme Court, in two of the cases before it (the Rutherford and the Carmichael cases), agreed that there was ‘no reasonable justification’ for these differences. Mrs Carmichael – who, because of her need for a specially adapted bed with enough space for wheelchair access, cannot share a bedroom with her husband – was in a ‘directly comparable’ position to the Gorry children. Mr and Mrs Rutherford – who look after their severely disabled grandson at home with support from a team of carers including overnight care – were in a comparable situation to Mr Burnip. The Supreme Court, in a unanimous decision on these two cases, could not ‘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’ nor ‘to distinguishing between adults and children in need of an overnight carer.’

While a very welcome decision, it is regrettable that the two cases had to go all the way to the highest domestic court. Considerable legal time and money, not to mention emotional energy and uncertainty on the part of the Carmichaels and Rutherfords, could have been avoided if the government had, of its own volition, acknowledged the lack of any reasonable basis for distinguishing these classes of cases and amended the regulations accordingly. Yet even now, and despite such a clear judgment, the government has merely said that it hopes to bring in amending regulations in compliance with the judgmentby April 2017. Its guidance to local authorities in the meantime is that they do not need to take any action in response to the judgment and must continue to apply the HB rules as they currently stand, though awarding DHPs to those considered to be in financial need.3 It is difficult to interpret this as anything other than the DWP directing local councils to act unlawfully under section 6 of the Human Rights Act in a Carmichael or a Rutherford-type situation. CPAG is currently considering what action should be taken if, prior to formal amendment to the 2006 regulations, full HB is not being awarded to claimants where there is a transparent medical need for the additional bedroom, particularly where a DHP does not cover the shortfall or there is no DHP in place.

Also before the Supreme Court were five other cases (Daly and others). Four of these again concerned individuals with differing mental and physical disabilities, but their challenges were unsuccessful because their disabilities were such not they had ‘a transparent medical need’ for an additional bedroom. The Supreme Court unanimously held that the lack of a blanket exemption from the bedroom tax for those with a disability was not unlawful. This is because the extent of the impact of the policy on them depends on the individual and her/his particular disabilities. Instead, the Court accepted that it is reasonable for the Secretary of State for Work and Pensions to operate an individualised system of DHPs, designed to cover any shortfall in a person’s HB because of the bedroom tax, where there are good reasons for her/him not to be expected to move accommodation due to her/his disability.

Applying such reasoning, the four appeals were dismissed on the basis that the individuals had no objective medical need for the additional bedroom, though they might have a strong case as to why they should not be expected to move accommodation and so to be awarded a DHP. For example, in one of the cases, the claimant lived in a house which had been specifically constructed to accommodate his disabled daughter: while there was no need for the two to live in a three-bedroom house and so there was under-occupation, the fact that the house had been specifically designed around the daughter’s complex needs meant that there was a strong claim to being awarded a DHP.

The one remaining case before the Court (A) concerned a woman living in sanctuary scheme accommodation following repeated domestic violence at the hands of her ex-partner. Her challenge was brought on the grounds of gender discrimination. Here, the Supreme Court was divided and held by a majority (five to two) that there was no unlawful gender discrimination: there was no objective need for the woman and her teenage son to have three bedrooms, one of which was unoccupied. That said, the majority recognised that, for as long as A needed the protection of sanctuary scheme housing, she should receive it – ie, she had a powerful case for remaining in her current property on grounds of need which were unrelated to the actual size of the property. Such personal need, unrelated to the size of the property, was best dealt with by the use of DHPs rather than blanket exemptions.

The minority, with a particularly strong dissent from Lady Hale, took as their starting point the positive obligation on the state to provide effective protection against gender-based violence. The provision of sanctuary scheme accommodation to A was a way of fulfilling this obligation. Denying her security in the provision of such accommodation through the application of the bedroom tax and the less than certain DHP system amounted, for the minority, to unlawful discrimination. Those acting for A are taking her case to the European Court of Human Rights.

Bar the European Courtcase in relation to sanctuary scheme accommodation, have we now seen an end to litigation around the legal application and parameters of the bedroom tax? This is unlikely. CPAG is already involved in a case before the Upper Tribunal where the local authority is arguing that, applying regulation B13, a family comprising two adults and two sons are only entitled to two rather than threebedrooms despite severe limitations in the size of both the smaller bedrooms. It is accepted that one of those bedrooms is unsuitable for sharing as the only position for a bunk bed would be in front of the window, blocking out natural light. However, according to the local authority, the other room can accommodate the two boys and a bunk bed with a few ‘reasonable’ adjustments – eg, fitting sliding doors rather than a hinged door to the wardrobe, the two boys not being in the room at the same time to change and their not needing a desk or chair in the room. Can it really be argued that there is under-occupation in such a situation? Let’s hope that the Upper Tribunal considers not.

Following the Supreme Court case, the touchstone when giving advice on the bedroom tax to disabled claimants, or claimants where somebody else using the property as their home is disabled, is to consider whether there is a transparent medical need for an additional bedroom such that there is no actual underoccupation in practice. This may be because the disabled person cannot be expected to share with another person when, absent the disability, s/he would be expected to share or because of the need for overnight carers to be accommodated.

What if a couple can share a double bed for part of the night but not the entire night or not every night because of their disabilities? Could they be required to share a double bedroom but with two single beds (assuming that there is not enough space to accommodate a double bed and a single bed in the same room)? In such a situation, it could be worth arguing that there is a transparent medical need for an additional bedroom, particularly given that the Supreme Court based its decision not on discrimination in relation to welfare benefits (Article 1, Protocol 1 ECHR) but discrimination in relation to the right to private and family life (Article 8 ECHR). A couple living together should be able to share a bed; if they cannot do this for the entire night/every nightbecause of disabilities, and so need a further bedroom to accommodate a single bed for one of them to use when they cannot share, there is no under-occupation in practice.

Before amendment of the regulations to cover a Carmichael or Rutherford situation, if you consider your client falls within one of these two categories but the local authority is not prepared to amend an existing HB award to provide full entitlement, please contact CPAG so that we can consider whether to challenge such a decision, particularly where there is no DHP in place or it is inadequate to cover any shortfall in HB.

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