From bedroom to courtroom: challenging the ‘bedroom tax’

 

There have been several recent challenges to the much criticised bedroom tax/removal of the spare room subsidy. CPAG’s Legal Officer Mike Spencer gives an update and advice on how affected tenants can appeal.

As reported in Bulletins 232 and 233, restrictions on the amount of housing benefit that can be claimed by working-age tenants in the social sector came into force in April 2014.1 Reg 12BA, A12 and B13 Housing Benefit Regulations 2006, as amended by the HB (Amendment) Regulations 2012, SI No.3040 and the HB (Amendment) Regulations 2013, SI No. 665 The maximum eligible rent is reduced by 14 per cent if the tenant has one excess bedroom, or by 25 per cent if there are two or more excess bedrooms. The change has been dubbed a ‘bedroom tax’ by its critics, while the government insists on calling it ‘the removal of the spare room subsidy’.

The size criteria allow for one bedroom for each ‘occupier’, except that two children under 10 are expected to share a room, as are two children under 16 of the same sex and adult couples. Claimants are also entitled to an extra bedroom if they or their partner require overnight care (see Burnip below), and there are also exemptions for foster carers and parents of armed forces personnel.

A major problem with the size criteria is they make little allowance for disabled people who may need an extra room for a variety of reasons. According to the DWP’s own equality impact assessment, two-thirds of claimants affected are disabled.2 Housing Benefit: size criteria for people renting in the social rented sector, equality impact assessment, DWP, June 2012The DWP claims that any problems can be addressed through the extra provision for discretionary housing payments (DHPs) (£25 million in 2013/14). Critics point out that DHPs are only a temporary solution and the pot is too small to cater for the large numbers affected.

The key authority on disability discrimination and the size criteria remains Burnip, Trengove and Gorry v SSWP [2012] EWCA Civ 629, in which the Court of Appeal last year considered identical criteria for the local housing allowance (LHA) rules in the private rented sector. Two of the appellants (Burnip and Trengove) were disabled adults who needed a room for a carer to stay overnight. The Gorry family had two children who were unable to share a room because of their disabilities. The Court found that the failure to allocate an additional room to such groups breached Article 14 of the European Convention on Human Rights, and could not be objectively justified by the provision of DHPs.

The regulations now allow for an extra room where the claimant or her/his partner requires overnight care, or two rooms if they both do (the Burnip and Trengove scenarios).3 Reg B13(5) HB Regs 2006, as amended However, regulations are yet to be published allowing for an extra room for children who are unable to share a room (the Gorry scenario). DWP guidance merely advises local authorities to allocate an extra room in such cases outside of the regulations.4 DWP Circular HB/CTB U2/2013

The first case to consider the operation of the size criteria in the social rented sector is MA and others [2013] EWHC 2213 (QB), a judicial review brought by a group of disabled people affected by the bedroom tax in various ways. The claimants in that case include: an adult couple who have to sleep in separate bedrooms because of their disability (the Carmichaels); tenants who need the room to store disability equipment; a tenant with mental health problems; and a number of families with children who cannot share a room because of their disability. They all argue that the regulations discriminate broadly against disabled people who have ‘a need for extra bedroom space arising from [their] disability’.5 para 51, DWP Circular HB/CTB U2/2013 In a judgment delivered in July, the High Court followed Burnip in finding that the regulations discriminate against disabled people, but found on the facts of these cases that such discrimination was justified by the provision of advice and DHPs. Unlike the appellants in Burnip and Gorry, the claimants were too broadly defined and could not be said to form an identifiable ‘discrete group’.

With regard to disabled children who cannot share a room, the Court found that the Secretary of State was ‘obliged’ to introduce regulations to implement the Gorry judgment, but in the meantime local authorities ‘retain their discretion as to the administration of DHPs’.6 paras 90–93, DWP Circular HB/CTB U2/2013 This has left decision makers in an uncertain position with regard to disabled children: should they follow the Court of Appeal in Gorry and the DWP’s guidance by allocating them an extra room, or follow the High Court’s suggestion in MA and others and provide them with a DHP instead? Permission has been granted to all of the claimants to appeal to the Court of Appeal and a hearing is expected in November 2013.

We are aware of two other ongoing cases: one, represented by Liberty, concerns separated families with shared custody of children (Cohen and others); the other, represented by CPAG, concerns a family with a disabled child who requires overnight care (the existing exemption for overnight carers only applies if the claimant or her/his partner requires overnight care) (Rutherford and Todd).7 CO/13841/2013

A further problem for authorities is deciding what counts as a bedroom. The term is not defined in the regulations. It is open to claimants and advisers to argue that rooms considered by the local authority (LA) to be bedrooms are not in fact bedrooms but some other kind of room. These arguments do not have to be based on disability related needs. The DWP insists that ‘the only consideration’ should be the ‘number of bedrooms as designated by the landlords’.8 HB Circulars U6/2013 and A4/2012 The First-tier Tribunal in recent appeals seems to have taken a more nuanced approach, and took the following factors into account:

The DWP says it plans to appeal against these cases to the Upper Tribunal.

To summarise, the legal position is far from settled: MA is on appeal to the Court of Appeal; other judicial review cases are ongoing and the ‘bedroom’ appeals are going to the Upper Tribunal. In the meantime, there is at least an argument that each of the following categories of occupier should be entitled to an extra room despite not being covered by the regulations currently in force:

In all such cases, it may be worth appealing to the tribunal, in addition to applying for a DHP. Whether they succeed will depend on the outcome of the lead cases in the higher courts, and so such appeals may well be stayed pending the outcome of the lead cases.

UPDATE: Since writing, the Social Security Advisory Committee (SSAC) has announced a consultation on draft amendment regulations for disabled children who cannot share a room. The draft amendments allow for an additional room where a child is: (a) entitled to the care component of disability living allowance (DLA) at the higher or middle rate; (b) is unable, by virtue of her/his disability, to share a room with another child and (c) for whom there is a bedroom in the dwelling which is additional to the number of bedrooms to which the claimant would otherwise be entitled under the size criteria. The deadline for consultation responses is 18 October 2013.

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