High Court judge rejects challenge to bedroom tax over separated families

A High Court judge has dismissed a judicial review challenge over the impact of the bedroom tax on separated families with shared custody of children.

In Cotton & Ors, R (on the Application of) v Secretary of State for Work and Pensions & Ors [2014] EWHC 3437 (Admin) the claimants were all parents who were either divorced or separated from the other parent of their children and looked after their children under shared care arrangements.

They each received housing benefit. The children alternated between living with each parent, spending approximately half their time with each and having their own bedroom at each premises.

In each case the housing benefit payable to the claimants, the parents with secondary responsibility, had been reduced as a result of the Housing Benefit (Amendment) Regulations 2012 with effect from 1 April 2013.

However, the shortfall has so far been made up by the payment of discretionary housing payments (‘DHPs’) from the claimants' local authorities.

Backed by human rights campaign group Liberty, the claimants argued that the amendments to housing benefit introduced by the 2012 Regulations were unlawful on three grounds, namely that they were:

• 
A breach of Article 8 of the European Convention on Human Rights (right to a private and family life);

• A breach of Article 8 of the Convention read with Article 14 (prohibition on discrimination); and

• Irrational
.

Rejecting the challenge, Mr Justice Males said: “A short answer to this claim is that as a result of the DHPs received by each of the claimants, which have completely compensated for the reduction in housing benefit paid to them (or would have done, in the case of Mr Hutchinson and Mr Cohen if the correct applications had been made), none of the claimants has suffered any interference with their family life capable of amounting to a breach of article 8.

“They continue to live where they lived before the changes in housing benefit. Their children continue to live with them to the same extent as they did before. They have the same net income.”

The judge said there was at most the possibility of a change in these circumstances in the future, “coupled with a degree of understandable anxiety about this possibility and the stress involved in making further applications for DHPs”.

Mr Justice Males cited a submission from the claimants’ QC in her skeleton argument that interference in the claimants' Article 8 rights comes at the point when the loss of their home becomes a real and immediate prospect. “On any view that point has not yet been reached,” he said.

The judge went on to say that he considered Article 8 would be engaged in circumstances in which loss of benefit compelled the claimant to move to premises in which their children could no longer live with them. This was for the same reasons as given by the Court of Appeal in the case of SG (a benefit cap case).

Mr Justice Males noted though that the issue of shared care had been drawn to the attention of Parliament, but that Parliament had nevertheless voted to approve the Regulations.

The judge said that while he recognised the difficulties which the claimants might face, “the situation with which I am dealing in the present case falls far short, in my judgment, of what would be required to constitute an interference with the claimants' Article 8 rights”.

He concluded for various reasons that even if the reduction in the claimants' housing benefit brought about by the 2012 Regulations had the effect of compelling them to move to a smaller property where their children could not live with them, that would not of itself be an interference with their rights under Article 8.

“Something more would be needed to reach the high threshold required in this context,” the judge said. “In practice, however, if that something more were to exist in any particular case, the probability is that DHPs would in fact be made by a claimant's local authority.”

In relation to whether the justifications advanced as showing that the benefit changes were a necessary and proportionate means of achieving policy objectives, the judge’s comments included that:

• He accepted that the particular issue of shared care had been expressly raised in Parliament. “That was an important consideration in MA and is equally so here.”
• Llike MA, this was a case where there was no readily definable category of persons who might be made the subject of an exemption. “If parents whose children stay with them for about half the time, why not one or two nights a week? Why not grandparents or other close family members?”

The judge concluded that the changes to housing benefit introduced by the 2012 Regulations were “not manifestly without reasonable foundation”.

Mr Justice Males said it was unnecessary to explore issues around the second ground of challenge (a breach of Article 8 read with Article 14). “It is common ground that the question of justification for any discrimination raises the same issues as arise under article 8 as a free-standing claim and should be given the same answer.”

On the third and final ground, the judge said: “[The] claimants say that the exclusion of parents with secondary responsibility from entitlement to housing benefit for their children's bedrooms is irrational, applying domestic public law principles.

“Ms Lieven [QC for the claimants] realistically accepts, however, that if the claims under the Convention fail, a case of irrationality is unlikely to succeed. I agree. For the reasons already given, the policy objectives of the benefit changes and the Regulations as a means to achieve those objectives are not irrational as that term is used in public law.”

Reacting to the judgment, Rosie Brighouse, Legal Officer for Liberty, said: “The bedroom tax is having a huge impact on separated families and [this] judgment confirms our Human Rights Act matters in these cases.
 
“The Government defended itself by hiding behind the discretionary payments scheme – but the guidance is silent on how separated parents should be treated.”

Brighouse added: “Instead of passing the buck to local authorities and creating uncertainty for children the Government should clarify the financial help available for those sharing custody.”