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Joshua Rozenberg: Supreme Court to sort out bedroom tax mess — but it won’t be easy

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The background to this week’s human rights showdown explained by Britain’s best-known commentator on the law — in the first of his exclusive new series for Legal Cheek

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Does the so-called bedroom tax breach the human rights of disabled people by discriminating against them? That’s one of the questions that the Supreme Court will spend the next three days considering.

You can tell it’s a difficult question to answer because seven justices are sitting rather than the usual five. That’s usually a sign that the judges are thinking about overturning a decision by the Court of Appeal. On this occasion it’s inevitable that they’ll do so because the two leading members of the Court of Appeal have each had a go at the question and come up with different answers. Not for the first time, the Supreme Court will have to sort it out.

We are not meant to speak of the bedroom tax, of course. Indeed, it’s not really a tax at all. It’s a reduction in the benefit you receive if you live in rented social housing and you have what’s regarded as a spare bedroom. The cases before the Supreme Court are all about claimants who say that their extra bedroom isn’t spare at all.

And a tenant can’t claim that everyone in the house should have a room of their own. Couples are expected to share, of course, as well as two children of the same sex and two children under 10. Otherwise, it’s one room per occupier. These rules first appeared in regulation 13D of the Housing Benefit Regulations 2006.

One of the first people to complain about them was Ian Burnip, who was a student in the third year of his four-year BSc course in politics and international relations at Aston University in 2008. Aged 24, he was living in a rented two-bedroom flat in Warwickshire. Because of his spinal and muscular dystrophy, he needed somebody to help him from time to time overnight. During the rest of the night, his carer could sleep in the second bedroom.

However, Mr Burnip was allowed housing benefit at only the reduced rate for a one-bedroom flat. That was because his visiting carers were not regarded as “occupiers”, having homes of their own.

He challenged this ruling unsuccessfully before the first-tier tribunal and the upper tribunal. But the Court of Appeal was persuaded that Mr Burnip and others had been denied their rights under article 14 of the European convention on human rights. This says:

The enjoyment of the rights and freedoms set forth in the convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

There was no doubt that disability was covered by those last three words “or other status”. And there was no doubt that housing benefit was a right; because it was regarded as a “possession” protected by article 1 of protocol 1 to the convention.

Discrimination, under human rights law, was not restricted to cases where disabled people were given fewer rights. It included cases where the law failed to treat people differently when their circumstances were significantly different. This principle is named after a case called Thlimmenos.

And, said the Court of Appeal, there was no justification for the discrimination against Mr Burnip. So he won.

His case is not coming before the Supreme Court. But the principles it established are relevant to the cases that are. The first of these is known as MA, after one of the 10 original claimants. They claimed that a new provision in the Housing Benefit Regulations 2006, known as regulation B13, discriminated against disabled people. It restricts benefits to tenants in social housing in much the same way as regulation 13D, mentioned above.

The tenants’ claims for judicial review failed in both the High Court and the Court of Appeal. Lord Dyson, the Master of the Rolls, accepted that, on its own, regulation B13 discriminated against disabled people who needed an extra bedroom. This was either indirect discrimination or Thlimmenos discrimination.

But regulation B13 was part of a package that includes what are called discretionary housing payments, which are provided by local authorities. These are paid to people on housing benefit who need further help. Providing these payments was a reasonable way of helping these people, in Lord Dyson’s view, so the discriminatory effect of the government’s policy could be justified. The needs of certain groups of people were better met by discretionary housing payments than by housing benefit.

The other case that’s coming before the Supreme Court is called Rutherford. It was decided by the Court of Appeal as recently as last month. This time, though, Lord Thomas of Cwmgiedd, the Lord Chief Justice, was the presiding judge.

Paul and Susan Rutherford look after her grandson Warren, 15, who has severe disabilities. He needs round-the-clock care from at least two people. The couple’s housing benefit was reduced because regulation B13 allowed an extra bedroom for overnight carers of a disabled adult but not for those caring overnight for a disabled child. In their case, however, the shortfall was covered by discretionary housing payments.

The court also considered the case of a woman and her child whose three-bedroom property had been adapted to protect her from a violent former partner. She too received discretionary housing payments to make up for the reduction in her housing benefit.

Lord Thomas proceeded on the basis that the appeal courts had got the law on discrimination right. The only question was whether there was any justification for discriminating against the Rutherfords and the domestic violence victim, referred to as A, by reducing their benefits.

In the court’s view, there was not. If Mr Burnip had been the victim of discrimination, so had the Rutherfords and A. The Pensions Secretary could not decide that it was better for A and those like her to receive discretionary housing payments, even though that was a more flexible approach. Similarly, the court was not persuaded that the discretionary payments justified treating a child who needed an overnight carer differently from an adult who needed care overnight. In both cases, the Court of Appeal decided, there had been unlawful discrimination contrary to article 14 of the human rights convention.

The government has a very simple answer to all this. It’s expected to tell the Supreme Court that the overall effect of the scheme is not discriminatory when you take discretionary payments into account. That argument was not open to the Court of Appeal because it had to proceed on the basis that the Burnip decision was correct. The appeal judges could not overrule an earlier decision made by judges at the same level unless they were persuaded that the decision was wrong — and nobody had tried to argue that.

But why should the law discriminate against disabled people in the first place? Why should people who genuinely need an extra bedroom lose benefit? It’s likely to be some months before we discover the supreme answer.

Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. This is the first in a series of articles that he will be writing for Legal Cheek about law-related topics in the news.

Images via @alyxsteele and @stephmulz on Instagram.

38 Comments

G Millward

I think the issue here is the discretionary housing payment (DHP) paid by the local council to alleviate the effect of the “bedroom tax”
It is just that of course “discretionary” with all the uncertainty attached to it.

ProfPAS

I agree. A fair bedroom tax does not require people who do not have a “spare bedroom” to rely on “discretionary” payments.

It would be interesting to know how the bedroom tax is applied to Queen Elizabeth’s and Prince Philip’s homes now that their children are grown-up and have left behind the family homes.

pamela baumgartner

And usually just for a limited time.

Paul Cardin

Good luck to Paul and all involved. Fairness and humanity will prevail over callousness, greed and Tory depravity.

Jo

tory depravity? LOL

fred

Incisive and articulate as ever jo

Mr Schwac

The bedroom tax is fair and just when applied properly. It should not be a one size fits all system. It is plain common sense that disabled people should not have to have their benefits cut. There is a problem when single peope occupy 4 bedroom houses whilst families live 5 to a bedroom

Anonymous

Would completely agree if those single people were offered alternatives, but because Thatcher sold off all our social housing, often the only properties available are large ones. It’s stupid, but the answer is to build more social housing and move individuals into it, not to make poor people’s lives untenable.

Iain

If that were true why are the elderly fully protected no matter how much they under occupy their property. Can you imagine owning your own home and suddenly being told that you will pay significantly more Council TAx if you don’t have full occupation. This abhorrent policy is not fair and never has been.

Anonymous

The elderly wont be for much longer – the introduction of LHA maxima to social housing will mean that those of pensionable age will also have their HB restricted to the LHA amount for the bedrooms they require. In my LA area, the reduction is roughly equivalent to the 14% reduction of the bedroom tax.

fred

Another stepford buying into tory propaganda

fred

Easiest answer is removal of bedroom tax and adequate sustainable social housing

Anonymous

I don’t understand why a single unemployed person does not house share. The real problem lies in the lack of social housing available for low earners, councils should not have sold most of their housing stock to make a quick profit in the 80s. New council houses/flats should have been built during the Thatcher years to alleviate the mess we are in now.

Anonymous

This isn’t about single unemployed people – those, by their definition, are supported by government and/or their parents. They, generally speaking, couldn’t afford MORE than the cost of a house share and many move home.
However, there are several “real problems”: 1) how we treat disabled people, 2) how we treat poor people, 3) lack of housing which has gotten worse thanks to government policy, 4) the idea that you only get a house by “hard work” (good) yet fail to provide an economy or opportunities which allow for the hard work to do be done at a decent salary (bad)…. I could go on, but single unemployed people have nothing to do with this.

Anonymous

Hang on. The statement “councils should not have sold most of their housing stock to make a quick profit in the 80s” is just plain wrong. Councils did not sell housing stock in the ’80s to make a quick profit. They were forced to do so by central government – many objected. They were also legally required to invest all profits in clearing debt and were barred from investing the money made in the sale of social housing on reinvestment in new social housing. So if there is a reduction in stock its the central government of the day we need to blame, not the local authorities.

fred

So being unemployed is a premise for having to share?? Same sort of prejudice,employed by government!

Joe Halewood

Hopefully the Supreme ourt will look at the DHP angle in much more detail than the Appeal Court.

The DHP allocation from central to local government can only be mitigation IF the likelihood of receiving one is practical, yet it is not.

1. Bedroom Tax HB cut is currently £357 million per year and it is not moot that 63% of bedroom tax households are dissbled, hence this is a £225 million cut to disabled households.
2. DHP allocated in total is £125 million; however
(a) Only £60m of this is ‘allocated’ for bedroom tax
(b) Yet each LA can choose to spend all or nothing of the allocation on bedroom tax
(c) DHP is also allocated to pay for benefit cap and LHA cap and SAR cap and for many other purposes at the LA discretion.

In short is DHP actually available as the government argue? That cannot be taken at face value and the availability of DHP surely has to be considered.

3. To illustrate the shortly to be reduced overall benefit cap levels we see Liverpool has a DHP allocation of £1.6m per year and a bedroom tax cut of £6.8 million and just £0.35 million in HB cut from the overall benefit cap. Yet when the OBC reduces to £20k per year in the next few months Liverpool will see a benefit cap HB cut of at least £7.85 million per year that lso has to be mitigated from the DHP allocation.

The DHP allocation of £1.6m now ‘mitigates’ a £7.1 million HB cut. In 2015/16 this becomes £1.9m DHP allocation ‘mitigating’ a £14.5 million cut!

Available?!

Joy Boyd

I am waiting for this to be explained before the Court of Appeal Joe; just as you have done here. The DWP mantra DHP’s cover disabled people’s cuts to HB needs to be exposed as a complete and utter farce and downright lie.

G Millward

Is it also correct Joe (Halewood) that the council do not “ringfence” the DHP?

Elspeth Parris

The whole DHP/Disability argument fails in practice. My experience of assisting people suffering under the BT is that if they are disabled they don’t get DHP because the council takes their DLA/PiP into account as income.

Anonymous

Totally agree. DHP runs out in October and because of hospital profile bed and through floor lift in bedroom it is impossible to share a room but the law says we have to because we are a married couple…if not…pay up! That’s discrimination.

Anonymous

Just let Parliament rewrite the law to create an exemption for the disabled with a list of criteria they have to fulfill, instead of using Art 14 to bulldoze their way through every legislation.

Anonymous

What a brilliant idea. Parliament should definitely do that. I’m sure it’s not thought of a definition.

I propose: “A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

Just like section 6(1) of the Equality Act 2010.

Cretin.

Anonymous

All the better to leave it to judges with no clear guidelines on what should be exempted!

Anonymous

Good Lord! You should be in Parliament my man. Well ahead of the curve. it’s a pity there isn’t a clear list set out somewhere. There should be some form of regulations. We could call them The Equality Act 2010 (Disability) Regulations and we could set out what’s excluded. At regulations three and four.

Double cretin.

Anonymous

The provisions in the Equality Act 2010 is insufficient to provide such guidelines – not all disabled people need an extra room. Hence the need for clear-cut exemptions to the bedroom tax.

fred

Just arguing on government agenda,and who is deserving and undeserving.far better to argue re discriminatory and unfair specific targeting of a particular demographic,anything else is piecemeal and arbitrary abrogatory.
I.e you choose who deserves to suffer?!

David Allen Green

Great to see LC publishing pieces like this.

Anonymous

I always thought the easiest answer to this question was to allow people one “spare” room. This would mean that the carer/child in army coming home/visitor etc. could be dealt with without all the legal argument, and still deal with the issue of those with 2 or more spare rooms. OK – it would not have saved as much, but would have been seen as so much fairer.

Anonymous

And also not make it so difficult to find those smaller accomodation units, the lack of which is also a major problem Reasonable suggestion.

Anonymous

That sort of defeats the purpose of the bedroom tax being a cost-saving measure for the government.

Alison

Thats what it was always like before the bedroom tax

fight back

A vast number of councils do not issue DHP because, the claimant is receiving DLA or PIP, that in itself is discriminating against the disabled.

jb

Am I correct in saying the admin costs of this farce far out way the savings that have been made ? . another few million on court costs we have to pay!

Law Mice

Superb piece of legal journalism that covers the issues on a level suitable for the layperson as for the lawyer.

Harley watch

Where is Lord Harley when you need him?

Anonymous

How can they take so long to come up with their ruling March to Sept

Anonymous

If it gets abolished theyll only introduce another tax by a different name thats just as bad.like poll tax to council tax.

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