Bedroom tax challenge success

The Court of Appeal recently ruled that the so-called 'bedroom tax' was unlawful in its impact on victims of domestic violence and disabled children. Michael Deacon examines the judgment.

The Court of Appeal has given its judgment in Susan Rutherford and others v Secretary of State for Work & Pensions and A v Secretary of State for Work & Pensions [2016] EWCA CIV 29, a conjoined appeal of two of the latest challenges to the bedroom tax/removal of spare room subsidy (delete as you see fit), holding that it was unlawfully discriminatory in its application to:

1.  A female victim of serious domestic violence living in a home significantly adapted (including the provision of a “safe room”) to ensure her safety in the face of threats from her former partner; and

2.  A severely disabled 15-year-old boy cared for by his grandmother and her partner, who required a carer to stay in their home two nights per week.

It is worth setting out exactly what is meant by “bedroom tax”, and reprising some of the most recent decisions on challenges to it, in order to set this case in proper context.

The bedroom tax regime

Regulation B13 was added into the Housing Benefit Regulations 2006 with effect from 1 April 2013. Its effect is to provide for a reduction in housing benefit where the recipient(s) of such benefits live in a house where the number of bedrooms exceeds the number said to be required by them. However, those classes of persons specified in Regulation B13(5) to (7) are allowed an “extra” bedroom, such that the bedroom tax will not apply to such classes.

Separately, if one has an extra bedroom, does not fall into one of those defined classes, but has a specific and reasonable need for an extra bedroom, one can apply for Discretionary Housing Payments (“DHPs”). In other words, the bedroom tax applies, but the shortfall will be made up by a DHP award, at the discretion of the local authority, which of course must be exercised in accordance with public law principles.

Burnip

The Court of Appeal in May 2012 gave its judgment in Burnip, a conjoined appeal of three cases challenging the effect of the precursor to Regulation B13 as discriminatory. In two of those cases, single severely disabled persons occupied a two-bedroom flat, and in the third case a family with three children (two of whom were severely disabled) occupied a four-bedroom flat. In the latter case the two severely disabled children could not share a room due to the nature of their disabilities.

In holding that the precursor to Regulation B13 was indeed discriminatory without objective and reasonable justification under Article 14 of the ECHR, there were two important planks to the Court’s reasoning. First, (at paragraph 46) DHPs could not be regarded as a satisfactory answer to the allegation of discrimination, particularly due to the discretionary nature of their award. Secondly, (at paragraph 64) the classes of persons whom it was argued by each of the appellants should be provided with protection from housing benefit reduction were very narrow, namely those with a disability of such severity that an extra bedroom was required to sleep a carer, and those where separate bedrooms were required for children whose disabilities were so severe that they could not reasonable expected to share a single room. As the Court of Appeal in the present case noted at paragraph 32 when analysing Burnip, that meant that:

“…such cases were by their very nature likely to be relatively few in number, easy to recognise, not open to abuse, and unlikely to undergo change or need regular monitoring.”

MA

Burnip was followed by the Court of Appeal’s decision in MA. That case concerned five conjoined appeals in each of which it was established that an extra bedroom was required due to the needs of one disabled member of the household. The defined classes set out in Regulation B13(5) to (7) (following Burnip) allowed an extra bedroom where the claimant of housing benefit or their partner necessitated overnight care, but none of the cases in MA involved such disabilities.

The Court of Appeal in MA held that Regulation B13 did discriminate against disabled persons, but the central issue was whether such discrimination was justified. In holding that it was justified, the court distinguished Burnip by finding that the appellants’ contention was in effect that a broad and imprecise class of disabled persons should be added to the specific classes listed in Regulation B13, such that the benefits listed in the quote above would not apply. Further, the changing nature of such disabled persons’ needs could be addressed by way of DHPs.

The decision in MA is being appealed to the Supreme Court.

The present case – A

It was in the context of the above authorities that the present case arose.

“A” had been the victim of repeated and severe violence at the hands of a former partner, including the conception of a child as a result of her rape by him. She continues to receive threats from him and suffers from PTSD and other mental health difficulties as a result of her experiences. Her home has been adapted pursuant to the Sanctuary Scheme, which ensures that it is secure and monitored for her own safety and that of her child. As A’s adapted home had three bedrooms (including a secure “safe room”) and her case did not fall within one of the defined classes set out in Regulation B13, the bedroom tax applied. A received DHPs which did fully make up the shortfall. However, she maintained that she was the victim of unlawful discrimination on the grounds of sex pursuant to Article 14 of the ECHR by virtue of her case not falling within one of the defined classes which would exempt her from the bedroom tax as of right. Her argument was that victims of such violence are predominantly women, and that bedroom tax affected women disproportionately as a result.

The Secretary of State, while admitting discrimination, argued that such discrimination was justified and therefore lawful on the basis that the overall scheme was working effectively through the use of DHPs.

The Court of Appeal found on the evidence before it that A and other victims of violence who require a safe room are small in number and capable of easy recognition. The central issue was therefore to decide whether it was bound to follow Burnip and find the discrimination unjustified and therefore unlawful, or alternatively that MA should be read as providing that the legislative scheme as a whole, and the provision of DHPs in particular, meant that the discrimination contained in Regulation B13 was justified, as per the Secretary of State’s argument.

The court found in essence that the effect of Burnip and MA, on a proper reading, is that the relevance of DHPs as a justification for discrimination only comes into play if the class which it is said is being discriminated against is not so small and readily identifiable as to be capable of being readily included as a defined class within Regulation B13. As such, A’s appeal was allowed, as the availability of DHPs could not save Regulation B13 from having discriminatory effect.

The present case – SR, PR and WT

WT is 15 years old, severely disabled and requires 24 hour care by at least two people. He lives with his grandmother, SR, and her husband, PR, in a three-bedroom house which has been adapted for WT’s needs, and it has been confirmed that there is no other two or three-bedroom house available which would be suitable for his needs. Neither SR nor PR enjoy good health. WT’s assessed needs are that he should remain in the current household and that a carer should stay overnight two nights per week to afford SR and PR respite.

SR and PR’s housing benefit was reduced pursuant to the bedroom tax on the basis that they have an “extra” bedroom, but again the deficit was topped up by DHPs. Had SR or PR been disabled such that they themselves required overnight care, they would have been included within the defined classes in Regulation B13 and therefore avoided the application of the bedroom tax at all, and would not have required DHPs. Their argument, therefore, was that there was no reasonable justification for including severely disabled adults within the defined classes in Regulation B13 but excluding severely disabled children from its ambit.

The Court of Appeal agreed with that position, placing particular reliance on the fact that the best interests of a child should be a primary consideration. It again did not find that the operation of the scheme as a whole, and in particular the award of DHPs, as sufficient justification for discriminatory treatment.

Analysis

The Court of Appeal gave permission to the Secretary of State to appeal to the Supreme Court against its decision, and they will be heard alongside MA over a three-day hearing beginning on 29 February.

It is clear from the tenor of the Court of Appeal’s judgment in this case that its finding was made with some reluctance, stating at paragraph 53 and again in concluding at paragraph 77 that it felt “bound” to follow Burnip and MA, and specifically noted in the latter paragraph that no arguments were made that either case was wrongly decided. Such statements might be read as an invitation to the Supreme Court to step in and take a different view. One should therefore watch this space for an authoritative assessment of lawfulness of the bedroom tax.

The argument that DHPs are capable of justifying any discrimination arising from the non-inclusion of particular classes of housing benefit claimant in Regulation B13 as exempt from the bedroom tax has a certain appeal. The question arises: if there is no shortfall in the sum actually received, then what is the problem?

However, it might be thought that what really lies at the heart of the issues raised in this case is the distinction between a right enshrined in black letter law and a right which is subject to the exercise of a discretion of a local authority, albeit that the discretion is necessarily exercised according to public law principles. Indeed, it might be thought that, notwithstanding that it felt “bound” to do decide as it did, the Court of Appeal got it right; if there is a readily identifiable class of individuals who require an extra bedroom, why not include them as a defined class in Regulation B13? The fact that the most vulnerable in society have a greater need than most to be able to rely on a predictable financial position (a point made before the Court of Appeal in this case) surely also supports that analysis.

Michael Deacon is a barrister at 1 Crown Office Row. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on the set's UK Human Rights Blog.