Claimants lose judicial review over housing benefit and spare bedrooms

A group of disabled claimants have lost their judicial review challenge over housing benefit regulations dubbed by critics as a ‘bedroom tax’.

The proceedings related to changes introduced into the Housing Benefit Regulations 2006 by the Housing Benefit (Amendment) Regulations 2012.

The changes at the centre of the dispute altered the basis on which maximum housing benefit is calculated in relation to rents in the public sector.

Applying to existing as well as new tenancies, the reforms reduce the eligible rent for the purpose of the calculation in cases where the number of bedrooms in the property let exceeds the number permitted by reference to criteria set out in Regulation B13.

The reduction in eligible rent is 14% where there is one excess bedroom and 25% where there are two or more.

The Secretary of State for Work & Pensions, the defendant in the claim, has estimated that the moves will save £500m from the total housing benefit bill. The regulations came into force on 1 April 2013.

The challenge was made on three grounds:

1. The new measures were “unlawfully discriminatory because they fail to provide for the needs of people in [the position of the claimants]”. The claimants were said to “represent a range of individuals who are typical of those who are adversely affected by these changes for reasons relating to disability in a way that violates their Article 14 rights...”. The reference was to Article 14 of the European Convention on Human Rights (ECHR).
2. The new measures constituted or involved a violation by the Secretary of State of the public sector equality duty (PSED), imposed by s. 149 of the Equality Act 2010.
3. The Secretary of State had unlawfully deployed guidance, in the shape of Circular HB/CTB U2/2013, to prescribe the means of calculating the appropriate maximum HB for certain classes of case. That could only be done by secondary legislation; and in any event the guidance could not cure the discriminatory effects of the Regulations.

Birmingham City Council, the housing benefit authority for one of the claimants, appeared as the interested party. Shelter and the Equality and Human Rights Commission intervened in the case.

Lord Justice Laws and Mr Justice Cranston rejected the claim in the High Court today (30 July).

Giving the judgment of the court, Lord Justice Laws agreed that the regulations were discriminatory. However, he ruled that this discrimination was justified save in cases where disabled children were unable to share a bedroom because of their disabilities.

The judge also concluded that the public sector equality duty had been fulfilled “and the effects of the HB cap were properly considered in terms of the discipline imposed by the requirement of proportionality”.

Lord Justice Laws did, however, criticise the Department for failing to issue regulations – as required by the Court of Appeal case of Burnip/Gorry – providing that there should be no deduction of housing benefit where an extra bedroom is required for children unable to share because of their disabilities.

The judge said he had considered whether relief should be granted so as now to require the Secretary of State to make new regulations (it being more than 14 months since the judgments in Burnip/Gorry had been delivered).

However, on being told that drafting was “under consideration”, he said he would not grant relief today. “I assume that new regulations will be made very speedily,” he added.

A spokesperson for the DWP said: “We are pleased to learn that the court has found in our favour and agreed that we have fulfilled our equality duties to disabled people.

“Reform of housing benefit in the social sector is essential, so the taxpayer does not pay for people’s extra bedrooms. But we have ensured extra discretionary housing support is in place to help those who need it and today we have announced a further £35m of funding to councils to aid residents.”

The three law firms acting for the claimants – Hopkin Murray Beskine, Leigh Day and Public Law Solicitors – have vowed to fight on, arguing that the discriminatory impact of the measures on people with disabilities could not be justified.

They also said disabled children and their families would appeal “as they are now left in a position where they do not know whether in fact they are entitled to full housing benefit to meet the costs of the homes that they need.

“This is because the Government has declined to confirm that the new Regulations, which the Court says must be made, will cover their situations, or to provide a date by which the new regulations will be made.”

Richard Stein, a partner at Leigh Day, described the High Court ruling as “a most disappointing result”.

He added: “We will be seeking an urgent appeal to the Court of Appeal. Many people with disabilities including our clients may lose their homes unless the law is changed. Their lives are already difficult enough without the fear of losing their accommodation which has been provided specifically to meet their exceptional needs.”

Shelter said the ruling was “devastating news for disabled adults and children”.