'Bedroom tax' - exemptions and legal challenges

 

In Bulletin 232, we examined the rules restricting the housing benefit (HB) entitlement of social sector tenants who are deemed to have excess bedrooms. Since then two new exemptions have been announced, the government has dropped its appeal against a CPAG test case in the Supreme Court and a number of judicial review challenges have been launched. Mike Spencer explores these developments.

Changes to the Housing Benefit Regulations,1 Reg 5 HB (Amendment) Regulations 2012, SI No.3040, which inserts new regs 12BA, A13 and B13 into the HB Regulations 2006 which came into force on 1 April 2013, extend the size criteria used to calculate HB in the private rented sector to working-age tenants in the social rented sector. The maximum eligible rent is reduced by 14 per cent if they have one excess bedroom, or by 25 per cent if they have two or more excess bedrooms. Claimants are entitled to 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. One additional bedroom is permitted if the claimant or her/his partner ‘requires overnight care’.

On 12 March 2013, in response to concerns raised by MPs and the public, the government announced that it was introducing two amendments to protect foster carers and parents of armed forces personnel.2 The HB (Amendment) Regulations 2013, SI No.665; DWP Circular HB/CTB A10/2013 The amendments apply to HB in the private rented sector, as well as the social rented sector, from 1 April 2013. To fund the changes, the government has reduced the discretionary housing payment fund by £5 million.

Since November 2010, foster children had been excluded from the definition of ‘occupier’ in the HB Regulations.3 Reg 2(3) SI 2010 No.2449, amending reg 21(3) HB Regulations 2006 As the definition is the same under the new rules, this would have meant that foster parents in social housing would have been subject to the under-occupation charge for rooms put aside for foster children. The amendments provide that a foster carer should be entitled to an additional room where s/he either: (a) currently has a foster child or young person placed with her/him; or (b) has been approved as a foster parent and has a child or young person placed with her/him within the last 52 weeks.4 Regs 2(1)(e) and B13(6) HB Regs 2006, as amended

The amendment only allows for one additional room for each couple, so claimants with two or more spare rooms for foster children will still be expected to pay the charge (unless s/he also happens to be a person who requires overnight care). The claimant must have an extra bedroom that is additional to those used by the persons who occupy the household. DWP guidance confirms that although prospective adoptive parents may need to show they have an extra room in order to adopt, they will not be entitled to one under the size criteria until the child forms part of the household.5 DWP Circular HB/CTB A10/2013

The amendments also provide that armed forces personnel who are away from home on operations will continue to be treated as living at home for the purposes of applying the size criteria.6 Reg B13(8) HB Regs 2006, as amended This change applies to any adult son, daughter, stepson or stepdaughter who is a member of the armed services and has been deployed on operations. ‘Operations’ includes operations away from home but within the UK.7 HB/CTB A10/2013 paragraph 33The additional room allocation only applies where the adult son or daughter was a non-dependant before deployment on operations and has an intention to return to live with her/his parents.

In a circular published on 12 March 2013, the DWP announced its intention to drop its appeal to the Supreme Court against the Court of Appeal’s decision in Burnip, Trengove and Gorry [2012] EWCA Civ 629.8 DWP Circular HB/CTB U2/2013This was a human rights test case relating to the size criteria for claimants in the private rented sector (see Bulletin 228, p4). Mr Gorry, who was represented by CPAG, has two disabled daughters who are unable to share a room because of their disability. Under the size criteria, they were only allowed one room between them. The Court of Appeal found that this breached the family’s rights under Article 14 of the European Convention of Human Rights, which prohibits discrimination on grounds of disability.

According to the circular:

The guidance confirms that the judgment applies to the size criteria in both the private and social rented sectors. Although the regulations have not been amended, the guidance says the judgment is ‘now considered to be caselaw’ and, as such, local authorities are ‘legally bound to apply the judgment’.

The DWP’s view on the extent of the judgment is restrictive, maintaining that an extra room should not be provided ‘in other circumstances, for example, where the claimant is one of a couple who is unable to share a bedroom or where an extra room is required for equipment connected with their disability’. In CPAG’s view, there is no logical reason why such claimants should be treated differently to two children who are unable to share a bedroom. This is likely to be considered in the judicial review cases below.

The High Court has granted permission in 10 judicial review challenges against the changes on behalf of claimants who have expertly assessed needs for their own rooms for a variety of reasons.9 R (MA and others & Daly & Drage & JD & Carmichael & Rourke) v Secretary of State for Work and Pensions (CO/2483, 2488, 2494, 2486, 2482, 2492, 2491, 2502, 2503 and 2507/2013)As well as children who are unable to share because of disability, the claimants include:

An urgent hearing is listed for May 2013. The campaign group Liberty has also launched three separate judicial reviews on behalf of separated parents with shared custody under Articles 8 and 14 of the European Convention on Human Rights.

Tenants who have been subjected to the charge but believe they should be entitled to the extra room(s) on human rights grounds should appeal to the First-tier Tribunal, referring to the caselaw mentioned above. This ensures that if the outcome of any of the judicial review claims is successful, the appellant will not be affected by the ‘anti-test case’ rules.'10 See p1149 of CPAG’s Welfare Benefits and Tax Credits Handbook 2012/2013 (p1341 of the new 2013/2014 edition)

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