Challenging the bedroom tax: update
Simon Osborne describes a current split in the caselaw on the question of whether someone’s ability to ‘mobilise’ with a manual wheelchair refers only to functional limitations, or to wider personal factors such as the ability to store the chair. The split will hopefully be resolved in a forthcoming decision of a three-judge panel of the Upper Tribunal.
Introduction
The
article on the ‘bedroom tax’ in Bulletin 236 referred briefly at the end to draft amendment regulations to the ‘bedroom tax’ rules, subsequent to the court decisions in
Gorry v SSWP and R(MA and others) v SSWP. Following a consultation and report by the Social Security Advisory Committee (SSAC), the government has published the final version of the new regulations, which take effect from 4 December 2013. The regulations introduce what is in effect a two-stage test.
An additional bedroom for a child will be allowed where:
•the child is entitled to the middle or higher rate care component of disability living allowance (DLA); and
•the relevant authority is satisfied that s/he is not reasonably able to share a bedroom with another child by virtue of her/his disability.
In the case of the local housing allowance, the additional bedroom must actually exist within the home.
1 The Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013, SI No.2828; The Rent Officers (Housing Benefit Functions) Amendment (No.2) Order 2013, SI No.2827Submissions
Several organisations, including CPAG, argued that the proposed regulations were too limited in scope. In particular, the introduction of a ‘DLA gateway’ risked excluding children unable to share a bedroom because of disability, but who are not in receipt of DLA or are in receipt of the mobility component or the lower rate care component only. Examples could include a child who disrupts a sibling at night but does not satisfy the conditions for the middle or higher rate care component, and a child who needs to use or store disability-related equipment which is disruptively noisy or uncomfortable for another child. Submissions also pointed out that the use of discretionary housing payments (DHPs) only provided an uncertain temporary solution for families with chronically disabled children.
SSAC report
The SSAC accepted many of the points made in the submissions and recommended that the ‘DLA gateway’ should be extended to include entitlement to the mobility component and the lower rate care component.
2 The Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013, (SI 2013 No.2828) report by the SSAC and statement by the Secretary of State for Work and Pensions, November 2013, available from the SSCA website Additionally, the report recommended the inclusion of an ‘exception provision’ for children not in receipt of DLA, but which could nevertheless satisfy the relevant authority that they are unable to share a bedroom because of their disability.
The government rejected the SSAC’s recommendations, arguing that entitlement to the middle or higher rate of DLA was an appropriate gateway because it indicated day and/or night needs, whereas nonentitlement indicated no significant night needs ‘either in the form of carer intervention or oversight’ and no ‘significant risk of physical harm or disruption to either child’. It also pointed out that it was not possible for the rules to cater for every conceivable circumstance (including the rare situation where a disabled child not entitled to the required rates of DLA cannot share a bedroom), that it would be difficult for local authorities to adjudicate on an ‘exception provision’ and that DHPs are adequate to cater for exceptions.
3 The Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013, (SI 2013 No.2828) report by the SSAC and statement by the Secretary of State for Work and Pensions, November 2013, available from the SSCA website With regard to the law, the government argues that the regulations comply with the Court of Appeal judgment in Gorry, which held that:
....there is no question of a general exception from the normal bedroom test for disabled people of all kinds. The exception is sought only for a very limited category of claimants, namely those whose disability is so severe that an extra bedroom is needed for...children who, in the absence of disability, could reasonably be expected to share a single room.
The government claims that the SSAC report ‘sought to extend the scope of the policy beyond this narrow consideration’.
DWP guidance
The DWP has now produced official guidance
4 See Housing Benefit Circular HB A21/2013 to local authorities on how to implement the new regulations. In particular, the guidance states that whether or not a child’s disability makes it unreasonable for them to share a bedroom is a judgement to be made on the basis of the facts taking into account:
•whether the child is currently sharing a bedroom without difficulty;
•whether the child needs overnight care, and if so, the frequency and nature of the care (the policy intent is stated as being that the care is sufficient to disrupt the sleep of another child if it is regularly required for prolonged or repeated periods);
•whether the overnight care would cause disturbance to another child sharing the bedroom and the nature of the disturbance;
•whether sharing a bedroom would pose a risk of physical harm to either child;
•how long the situation is likely to last (it should be ‘long term’ to qualify).
The guidance goes on to advise that:
When considering the facts of a case, keep in mind the policy intention which is to safeguard the wellbeing of children and prevent them being put at risk of physical harm or having their sleep frequently and significantly disrupted by virtue of sharing a bedroom when it is inappropriate to do so because of severe disability.
The guidance states that where a child is not entitled to the DLA middle or higher rate care component, the local authority should consider a DHP in appropriate cases. It also states that local authorities should review all cases dealt with under previous guidance to see whether reassessment is appropriate in the light of the new regulations.
Implications for challenges
CPAG believes there remains scope for challenging the rules based on the grounds set out in the
article in Bulletin 236. As was pointed out, some of the issues relating to the bedroom tax remain under litigation, including
R(MA and others) which is to be appealed. Also, there may still be an argument that the regulations are more restrictive than the law as laid down in Gorry, and that claimants with disabled children who do not satisfy the DLA gateway criteria could rely on
Gorry to argue that they are entitled to an additional bedroom.
With regard to local decisions on whether a child’s disability makes it unreasonable or not to share a bedroom, it should be borne in mind that the guidance referred to above is not law. It is only the DWP’s interpretation of the law and includes references to criteria and policy intentions which are not in the regulations. If the guidance assists in a particular way, it can be quoted in support of representations, but the fact that a claimant does not fit the criteria quoted does not mean that there can be no entitlement to an additional bedroom.
Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.