Disabled woman wins human rights challenge over cut to housing benefit

A severely disabled woman in Glasgow has successfully challenged on human rights grounds the application of an under-occupancy reduction to her housing benefit.

The woman, who suffers from primary progressive multiple sclerosis, took Glasgow City Council to a tribunal after it decided that she should share a specially adapted bedroom with her husband.

Under the Government’s revised regulations, her housing benefit was cut by 14% on the basis that the couple had a spare bedroom. The appellant applied for an extra room allowance and then a discretionary housing payment but was refused both.

The reduction in the woman’s entitlement put the couple in arrears with their landlord, a housing association.

At the First-Tier Tribunal (Social Entitlement Chamber), Judge Boyd upheld the woman’s challenge and set aside the council’s decision of 21 February 2013.

The judge concluded that the appellant’s flat was not larger than she needed. “She does not have a spare or extra bedroom. Because of her severe disability she is not able to share a bedroom with her husband and he must have a bedroom of his own. Her flat is not under-occupied. As a result of her severe disability she and her husband require a bedroom each and the flat is fully occupied.”

The woman's solicitor, Mike Dailly of Govan Law Centre, described the judgment as “very robust as there was no dispute on the facts that the appellant was severely disabled and could not share her specially adapted bedroom with her husband”.

He added: “We think this decision - which we understand may be the first reported success in using unlawful discrimination and human rights law to challenge a bedroom tax decision in the UK - will be of great significance to other severely disabled people in similar circumstances to our client".

A spokesman for the DWP told the BBC that tribunal decisions at this level did not set a precedent.

He added: "We will need to look at this particular decision in detail, but in July the Divisional Court ruled that the Department had fulfilled its equality duties to disabled people who are affected by the policy."

He added: "Even after the reform we still pay over 80% of most claimants' housing benefit, but the taxpayer can no longer pay for spare bedrooms in the social housing sector."

Giving the tribunal’s decision, Judge Boyd ruled: “In terms of section 3(1) of the Human Rights Act 1998 regulation B13(5)(a) of the Housing Benefit Regulations 2006 can and should be read as follows:  ‘(a) a couple (within the meaning of Part 7 of the Act) (or one member of a couple who cannot share a bedroom because of severe disability).’ Not to so read it would be incompatible with the appellant's rights under Article 14 of the European Convention of Human Rights read with Article 1 of the First Protocol of the European Convention of Human Rights.

"Applying regulation B13(5)(a) as so read, the appellant is entitled to two bedrooms. Accordingly there should not be an under occupancy reduction of 14% in her housing benefit entitlement from 1 April 2013.”

In her statement of reasons for the decision, the judge said that – as was the case in Gorry ­– the tribunal was not suggesting that there should be a general exception from the bedroom test for all disabled people.

Judge Boyd distinguished the case from the unsuccessful claim in the English case of MA, ruling that the Court of Appeal decision in Gorry was in point with the facts and circumstances of the woman.

She said: “The judgement in MA, at paragraph 88, distinguished the ten cases before the High Court under judicial review procedure from the decision in Gorry on the basis that Gorry related to a discrete group; families with children who could not share a bedroom by reason of their disabilities.  This approach was not applied in MA as it was considered that there was no discrete group.

“As explained above, the Tribunal considers that the appellant is a member of a discrete group very similar to the group considered in Gorry – a person who cannot share a bedroom by reason of her severe disabilities – and as a result Gorry is the case most in point.”

Judge Boyd added: “The judgement in Gorry was made by a higher Court that the judgment in MA. It related to a statutory appeal, as is the case here, rather than a judicial review. It is noted that there will be no appeal against the decision in Gorry but that permission has been granted for an appeal to be made against the decision in MA, and this appeal is being expedited".

A redacted version of the judgment can be viewed here.