Case comment: the bedroom tax in the Supreme Court

high_court_1370274cOn 9th November 2016 the Supreme Court handed down judgment in four related appeals, challenging the discriminatory impact of the bedroom tax – sometimes referred to as ‘removal of the spare room subsidy’. Six of the cases were related to the impact on people with disabilities. The other case concerned the impact of the bedroom tax on a victim of domestic violence.

The full judgment is here. The Court’s press summary is here. References in square brackets are to paragraphs in the judgment.

Overview of the bedroom tax

Strictly speaking this case is about Housing Benefit, as the bedroom tax is actually a deduction taken from a tenant of a social landlord’s entitlement. Housing Benefit is paid for and administered by local authorities. It is a means-tested benefit which is meant to help those on low income pay for their rental costs, and can be claimed by those in or out of work, occupying private rented accommodation or social housing.

The bedroom tax was introduced by the coalition government and entered into force from 1st April 2013. The relevant legislation is the Housing Benefit Regulations 2006 (SI 2006/13), in particular Regulation B13, which was inserted following the passing of other amending regulations. It applies to tenants of social landlords, i.e. people living in council housing or renting from a housing association or other ‘registered social landlord’.

The effect of Regulation B13 is to amend a claimant’s ‘appropriate maximum housing benefit’ and ‘eligible rent’ by reducing Housing Benefit by a set percentage depending on how many spare bedrooms the claimant is deemed to have. The reduction is 14% where there is one spare bedroom, and 25% where there is more than one. There is no sliding scale, but obviously for larger properties that command a higher rent and therefore a more expensive Housing Benefit claim, a 25% reduction will mean a significant shortfall.

The number of bedrooms that a Housing Benefit claimant occupying social housing is entitled to claim for is set by Regulation B13(5) and (6). A Housing Benefit claimant is entitled to claim for one bedroom for each of the following categories of person:

  • adult couples
  • an adult over 16
  • a disabled child under 16 who can’t share a bedroom because of their disability
  • two children of the same sex under 16
  • two children under 10 (whether they are of the same sex or of the opposite sex)
  • a foster child (only 1 bedroom is allowed regardless of the number or sex of the children)
  • a child away at university who plans to return home
  • a child in the Armed Forces who plans to return home

There are a few exemptions from the bedroom tax. These are also contained in Regulation B13. Housing Benefit will continue to cover a spare bedroom in the property if:

  • you are a disabled adult and have an overnight carer;
  • you are a foster carer who’s been approved by social services and is between placements or newly approved (up to 52 weeks);
  • you have a child away in the armed or reserve forces, if they plan to return to live with you; or,
  • someone who normally lives with you is away for up to a year and they intend to return and are away for particular reasons (e.g. hospital)

So, in short: if you are a tenant of a social landlord, you claim Housing Benefit, and you have a spare bedroom that isn’t covered by one of the exemptions, your Housing Benefit will be reduced by 14%. If you have more than one spare bedroom, the reduction will be 25%.

For those affected by the bedroom tax, and unable to make up the shortfall or increase their income, there is the option of applying for a Discretionary Housing Payment (or DHP), also administered and paid by local authorities. DHPs are essentially grants paid by councils to top up a claimant’s Housing Benefit claim. They are, as the name suggests, discretionary, with each local authority setting its own criteria for making an award. Challenges to adverse decisions on DHP applications are limited and can be tricky.

Other options include asking your landlord if you can let out the room or applying to move or transfer to a smaller property. Remember that income from lodgers can affect your Housing Benefit claim too.

The facts of the cases

Six of the claimants in the case before the Supreme Court either had disabilities themselves or lived with dependent family members who had disabilities. The seventh claimant, A, lived in a ‘sanctuary scheme’ due to a severe risk of domestic violence [3].

All of the claimants were seeking to challenge the validity of Regulation B13 on equality grounds, under both the European Convention on Human Rights (specifically Articles 8 and 14, as well as Article 1 of the First Protocol) and the Equality Act 2010.

Mrs Carmichael is not able to share a bedroom with her husband because of her disabilities [44].

The Rutherford family need an overnight carer for their severely disabled grandson [45].

Mr Daly occupies a two-bedroom property. His severely disabled son, Rian, stays with him overnight regularly, but ‘less than half’ of the time [51].

Mr Drage suffers from obsessive compulsive disorder. He lives alone in a three-bedroom property, which is full of accumulated papers that he has hoarded [52].

JD lives with his adult daughter, AD, who is severely disabled. Their property contains three bedrooms and is specially constructed and designed to meet AD’s needs [53].

Mr Rourke and his disabled step-daughter live in a three-bedroom property. One of the bedrooms is used for the storage of equipment [54]. Mr Rourke is disabled himself [71].

A and her son live in a three-bedroom house. At the time of her offer of accommodation there was a shortage of two-bedroom properties, so she accepted the three-bedroom house. She is a victim of domestic violence and rape, and her attacker has made threats to her that the police regard as serious. Under a sanctuary scheme her property has been adapted to provide a high level of security [56 and 71].

None of the claimants therefore fell into one of the exemptions from the bedroom tax (set out above). Each claimant’s Housing Benefit was therefore reduced according to the number of spare bedrooms that they were deemed to have.

Arguments before the Court

A key preliminary argument before the court was about the correct legal test for determining whether Regulation B13 was discriminatory. The Court of Appeal had adopted the approach that the question to ask was whether the purported justification for any discrimination that arose because of the bedroom tax was ‘manifestly without foundation’.

This test had evolved following a series of earlier cases involving discrimination in welfare benefits, in particular Stec v United Kingdom (2006) 43 EHRR, which had been cited with approval by the Supreme Court in Humphreys v Revenue and Customs Commissioners [2012] UKSC 18.

The claimants sought to distinguish from these cases, on the basis that the policy itself was not being challenged, but rather that the manner in which it was being implemented was discriminatory, and that it is right to require ‘weighty reasons’ to justify said discrimination [33].

The Court’s decision

The Court began by stating clearly that the merits of the imposition of the bedroom tax (or lack thereof) were not the subject of the appeal; nor was the bedroom tax’s general legality [2]. No objection was being raised to the general policy of Regulation B13. The challenges were to the application of the bedroom tax in ways which unjustifiably discriminated against people on grounds of disability and sex [28].

The Court held that the ‘manifestly without foundation’ test was the appropriate one [38]. The reasoning of Lord Dyson MR in the Court of Appeal was upheld [34]. The bedroom tax Regulations were found to be an integral part of a high policy decision and could not be dismissed as a technical detail [36].

The Court reminded itself that in Burnip v Birmingham City Council [2012] EWCA Civ 629 and in Gorry v Wiltshire County Council the Court of Appeal held that there had been discrimination under Article 14 of the Convention. This was because Regulation B13 had a disparate adverse impact in persons with disabilities, which had not been justified, notwithstanding the potential availability of DHPs [19 and 20]. It was because of these cases that exemptions from the bedroom tax became available for adults with disabilities who require an overnight carer, and for disabled children who are unable to share a bedroom.

There was no reasonable justification for the differences between the situations for Ms Carmichael and the Rutherford family and the claimants in Gorry and Burnip [46]. Accordingly these two appeals were allowed.

As for the other claimants bringing the claim on grounds of disability discrimination, it was held that their requirements for an additional bedroom were not sufficiently connected to disability to amount to an objective need [51 to 55]. These cases merited being assessed on an individual basis, and the Court found that the DHP scheme met this requirement.

The Court’s majority held that in the case of A, whilst expressing sympathy for her situation, her case for staying where she was had nothing to do with the size of the property or the number of bedrooms, but more to do with social reasons and safety concerns [60, 63 and 70]. Her claim for unlawful sex discrimination therefore failed [59].

It was not established that Regulation B13 had deprived A of a safe haven, or that it might do so [65]. Further, because A had moved into her property due to a shortage of a size-appropriate one, and not due to her actual needs, the majority did not find a breach of s. 149 Equality Act 2010 (the ‘public sector equality duty’) [70]. The Court was satisfied that even if sanctuary schemes had not been specifically addressed, gender discrimination had been properly considered in implementing Regulation B13.

The dissent

Lady Hale delivered the dissenting judgment in the case of A. She highlighted that what made A’s case different to the disability cases was that her need was less to do with space and more to do with the need to stay living where she was [72].  The State has a positive obligation to provide effective protection for vulnerable people against ill-treatment and abuse, including from private individuals [73]. Sanctuary schemes provide that protection by offering a safe haven to people at risk of serious violence [75].

The bedroom tax puts A at risk of losing her home and therefore, according to Lady Hale, amounted to discrimination (women are more likely to be the victims of abuse and domestic violence) [76]. Given the difficulties and uncertainties that are associated with DHPs combined with A’s fear and anxiety, the availability of the DHP scheme is not sufficient to justify this discrimination [77].

As for the public sector equality duty, Lady Hale held that there had not been any assessment of the impact of the bedroom tax on victims of gender-based violence [79 – 80].

Comment

The Supreme Court’s decision marks the culmination of years of challenges to the bedroom tax. It remains one of the government’s most unpopular changes to the UK’s social security framework.

The government will have to re-draft the offending Regulation to comply with the Court’s decision and has already undertaken to do so. The list of exemptions to the bedroom tax will therefore expand slightly. Disabled children who require an overnight carer will be allowed to claim Housing Benefit for a spare bedroom for that carer; and adults who cannot share a room due to their disabilities will also be entitled to claim for their own bedroom.

Thus the results were something of a mixed bag for the claimants, and others who might be in similar positions. Gone is the inexplicable distinction between disabled adults who cannot share a room and disabled children who cannot either. Gone, too, is the distinction between children who need a room for an overnight carer and adults who do too. But it is not exactly a ‘back to the drawing board’ defeat for the government either. For now, ‘panic rooms’ for victims of domestic violence remain outside the exemptions from the tax.

The need to establish the requirement for a spare bedroom directly arising from, because of, or connected to disability is highlighted. For claimants in the position of Mr Drage and Mr Rourke and his step-daughter, the definition of ‘bedroom’ may in future be subject to more careful judicial scrutiny. In other words, it may become more necessary to properly examine whether an alleged spare bedroom is in fact a bedroom (this did not seem to be disputed in any of the cases before the Supreme Court). Presumably if Mr Drage, for example, occupied a one-bedroom property that had an office and a library instead of a three-bedroom property, he would not have been subjected to the bedroom tax. Equally it follows that if Mr Rourke’s spare bedroom was actually a large storage room he would not have had his Housing Benefit deducted.

The case highlights the increasing importance of DHPs in managing housing costs and, ultimately, preventing homelessness. DHPs are already becoming more important as the lower benefit cap is implemented. The amount of money in local authorities’ budgets to be spent on DHPs will be inevitably stretched. DHPs remain discretionary and the funds available to local authorities remain subject to allocations determined by central government. Councils will have to make increasingly tough decisions on applications; more and more families will inevitably be turned down. Such a heavy reliance on discretionary and hard-to-challenge grants is surely not a sustainable way of preventing families from eviction and homelessness.

An interesting aspect of the bedroom tax that was not before the Supreme Court is the potential repercussions and interplay with housing, particularly with regard to intentional homelessness and suitability of accommodation.

As things stand, a homeless applicant cannot be found to be intentionally homeless if they were evicted due to rent arrears that were caused by financial circumstances beyond the applicant’s control (s.191 Housing Act 1996; The Homelessness (Suitability of Accommodation) Order 1996, SI 3204; The Code of Guidance 2006, Chapter 11 and paras. 8.28 and 17.40).

It follows that if rent arrears accrue because of the bedroom tax, and the tenant is subsequently evicted, a local authority assessing that person’s homelessness application would not be able to find that they were homeless intentionally.

Also worth noting is that when local authorities make offers of accommodation to homeless applicants, those offers must be for accommodation that is suitable. Affordability is a factor that has to be taken into account when assessing suitability.

But what if, like the claimant A in the Supreme Court case, the tenant had been placed in accommodation that was too big for them in the first place? Would they be found intentionally homeless if they were unsuccessful in applying for a DHP and subsequently evicted for rent arrears? The current law and guidance suggests that they would not. But what would the position be if the tenant never applies for a DHP at all – and would there be a difference if they were advised to do so?

Looked at another way, is someone who is subject to the bedroom tax, who meets no exemption and who has not got a DHP, unreasonably occupying accommodation that is unsuitable for them – and therefore effectively ‘homeless at home’? What duties would a local authority have if someone in such a predicament presented themselves as homeless? At what point would the accommodation have to be treated as unaffordable?

Currently the case law (such as R v Hillingdon LBC ex p Tinn (1988) 20 HLR 305, Farah v Hillingdon LBC [2014] HLR 24, and Samuels v Birmingham CC [2015] HLR 47) suggests that each application has to be treated on a case-by-case basis. Flexibility when it comes to assessing affordability can have its advantages, as circumstances may change for the better or worse. The obvious trade-off is uncertainty.

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