Government's 'bedroom' tax unlawful

The so-called ‘bedroom tax’ introduced by the government as part of a wide-ranging series of benefit cuts in 2013 was unlawful, the Supreme Court has ruled, upholding two claims that the rule breached the applicants’ right to be protected against disability discrimination.

The seven justices considered seven applications challenging the decision to remove the ‘spare room subsidy’ that was introduced through regulation B13 – an amendment to the Housing Benefits Regulations 2006.

One claimant, Jacqueline Carmichael, suffers from spina bifida and cannot share a bedroom with her husband because of her disabilities. The other claimant, Paul and Susan Rutherford both have disabilities and also care for their severely disabled grandson around the clock with the help of an overnight carer.

Lord Toulson, who delivered the lead judgment, said disabled people with a transparent medical need should be entitled to an additional bedroom without being taxed. He condemned the ‘ironic and inexplicable inconsistency’ in the government’s approach in both cases.

Sophie Earnshaw, a solicitor at Child Poverty Action Group, which acted for the Rutherfords, said: ‘Today’s judgment at last establishes that disabled children have the same rights to accommodation for care as disabled adults. It is a just result - any other outcome would have been nonsensical.’

In a joint statement Mr and Mrs Carmichael said: ‘We are overjoyed at the Supreme Court decision. We have been through almost four years of the sheer hell of the bedroom tax policy, and this decision vindicates our long and difficult fight. Out of this human rights victory over the bedroom tax we ask Theresa May to now reconsider the whole policy for everyone.’

Giles Peaker, a partner at Anthony Gold Solicitors, said changes should now be made to regulation B13.

‘While the Supreme Court accepted that a general exception for disability would not be required to avoid discrimination – with individual cases being considered for discretionary housing payments – there was no reasonable foundation for not excluding those with a clear medical need for the “additional room”, including the “inexplicable inconsistency” of treating children requiring overnight carers differently to adults with the same need.’

‘The secretary of state will have to add further exceptions to regulation B13 to avoid the unlawful discrimination. Hopefully this will not be as delayed as it was after the comparable decision in Burnip.’

Five other parties were unsuccessful in their challenges, including ‘A’, a domestic violence victim who lives in a sanctuary scheme house and had claimed the tax amounted to sex discrimination.

In January, the Court of Appeal ruled in her favour and said applying the size criteria to scheme users constituted unlawful gender discrimination. However, five of the Supreme Court justices disagreed.

Lord Toulson said regulation B13 was not intended to deal with cases, no matter how powerful, unrelated to the size of the property as they were accounted for through discretionary housing payment schemes. He added, however, that A and other women in a similar position must be provided with sanctuary scheme housing while they need it.

Dissenting, Lady Hale, with whom Lord Carnwath agreed, said the state had a positive obligation nationally and internationally to provide effective protection for victims of domestic violence and a failure to do so constituted discrimination.

Baroness Hale said: ‘Her need is not for space but to stay where she is. The effect of the regulation is to deny her the benefit she needs in order to stay in the accommodation she needs. In my view this is unjustified discrimination against her on grounds of her sex.’

‘For a woman in a sanctuary scheme to have to endure all those difficulties and uncertainties on top of the constant fear and anxiety in which she lives cannot be justified. This is not a question of the allocation of scarce public resources: it is rightly acknowledged that public resources will have to meet this need one way or another.’

A’s solicitor, Rebekah Carrier of Hopkin Murray Beskine, condemned the ‘cruel’ and ‘illogical’ tax and called on the government to guarantee her client accommodation and that of women in a similar position.

‘It is essential that the secretary of state for work and pensions now takes two steps to comply with the judgments. First, he must immediately issue urgent guidance to all local authorities, making clear that any individuals in need of sanctuary scheme accommodation continue to receive it. Second, he must ensure that sufficient funding is provided to local authorities for this purpose.’

‘Although we welcome today’s ruling that A must continue to receive sanctuary scheme protection for as long as she needs it, we are disappointed and frankly baffled by the majority’s finding that there is no need to formally exempt sanctuary scheme users from the effects of the bedroom tax.

‘I confirm that we are instructed to challenge the UK in the European Court of Human Rights, for breach of the rights of A and other vulnerable women whose lives are at risk.’

After years of fighting, the Carmichaels and Rutherfords will now be keeping a watchful eye on any changes to regulation B13 by the secretary of state for work and pensions, Damien Green MP. Following Lady Hale’s dissenting view, however, Green may have to make further exceptions if the ECtHR finds the ‘bedroom tax’ amounts to sex discrimination.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress