Chipping away at the bedroom tax: disabled families win at the Supreme Court

‘Closing the blinds on mediocrity’ from billaday, Flickr, creative comms

The Supreme Court last week ruled that the ‘bedroom tax unlawfully discriminates against disabled children who need overnight care and disabled adults who cannot share a bedroom. For the Rutherfords who care for their severely disabled grandson, Wednesday’s judgment marked the end of their three year legal ordeal.

The seven Supreme Court judges unanimously agreed with the previous court’s ruling that there was no justification for the discrimination and dismissed the Secretary of State for Work and Pensions’ appeal. The Court also allowed the appeal in the case of Jacqueline Carmichael who has spina bifida and is unable to share a bedroom with her husband.

This is a momentous outcome for the two families and the thousands of people it will benefit, and without a doubt a significant blow to the government’s bedroom tax policy. However, it was a victory in part. The other five linked cases concerning people with disabilities who have varying needs and a victim of domestic violence living under a protective Sanctuary Scheme, were not successful. In light of the judgment and the effect it has on people pushing them into hardship, the government should repeal the bedroom tax policy in its entirety.

What is the bedroom tax?
The bedroom tax, or the removal of the spare room subsidy, was introduced on 1 April 2013 extending restrictions to the amount of housing benefit social sector tenants can receive if deemed to be under occupying their property. Previously, the restrictions included in regulation B13 of the Housing Benefit Regulations 2006 had only been applied to private sector rented tenants. The restrictions mean that tenants are subject to a reduction in their housing benefit of 14% for one ‘spare room’ and 25% reduction for two or more additional bedrooms.

The controversial policy has proved to be widely unpopular cross party and with the public. Of those affected by the bedroom tax, two thirds are disabled and, by the DWP’s own evaluation, it is failing to free up more accommodation for families.

The Rutherfords and their ‘spare’ bedroom
Paul and Sue Rutherford are full time carers for their teenage son, Warren, who has a rare genetic disorder, Potocki-Shaffer Syndrome. Warren is unable to walk, talk or feed himself and is doubly incontinent, he needs around the clock care from at least two people and their Pembrokeshire home is specifically adapted to meet Warren’s needs. At least twice a week, professional carers stay overnight to look after Warren providing them with much needed respite and sleep. Without this support, they would not be able to continue to care for Warren at home and he would have to go into residential care.

It is this third bedroom used by the carers that was deemed to be a ‘spare’ room and resulted in the family being subject to the bedroom tax. Following previous case law in Burnip, regulation B13 includes an exception for disabled adults who need overnight care but makes no provision for the extra room needs of children who require overnight care.

The Rutherfords had to apply for a discretionary housing payment (DHP) to cover the shortfall in their rent. They applied multiple times before they were awarded with a DHP, and only when their case had hit the press. They had to reapply for the award in 2014, 2015 and 2016.

The Rutherfords, represented by Child Poverty Action Group, argued that regulation B13 is prima facie discrimination in breach of Article 14 of the European Convention on Human Rights with respect to disabled children who need overnight care and that the discrimination is not justified. The High Court found that the discrimination was justified because there was ‘adequate assurance’ of continuing to receive discretionary housing payments to make up the shortfall.

The issue for the Court of Appeal was whether the discrimination was justified, and therefore lawful. The appeal was brought on two grounds.

First, that the discrimination in treatment between disabled adults who need overnight care and disabled children with the same needs was not justified. The exception for disabled adults who need overnight care had not been extended to children contrary to the UK’s obligation under the UN Convention on the Rights of the Child (UNCRC) to make the interests of children a primary consideration. The regulations protect adults but fail to protect children. It was submitted that this was without reasonable foundation.

The second ground was that the High Court had failed to recognise the flaws in the DHP scheme as it did not consider whether the Secretary of State had made the best interest of disabled children a primary consideration and had not looked at the general features of the scheme. Discretionary housing payments are, as the name makes clear, optional and a short-term measure awarded from a limited fund. There is not, and cannot be, an adequate level of assurance that the Rutherfords and families in their class will receive DHPs.

The Court of Appeal agreed. It held that the Rutherfords’ case was indistinguishable to the case of Burnip, disabled adults who require an overnight carer. Lord Thomas found that the failure of the Secretary of State to make provision in the regulations for overnight carers of disabled children amounted to unlawful discrimination contrary to Article 14. It was ‘very difficult to justify the treatment within the same regulation of carers for disabled children and disabled adults, where precisely the opposite result is achieved: provision for the carers of disabled adults but not for the carers of disabled children’. The Secretary of State had also failed to have regard to the best interests of disabled children when devising the regulations.

The court also held that the bedroom tax was in breach of Article 14 on the grounds of gender in the case of ‘A’, a victim of domestic violence living in a Sanctuary Scheme Home for her protection. The Secretary of State appealed both cases to the Supreme Court and they were joined with the other five bedroom tax cases and heard over three days from 29 February 2016.

The three year ordeal ends at the Supreme Court
All seven Supreme Court judges upheld the Court of Appeal’s decision, agreeing that the discrimination was ‘manifestly without reasonable foundation’.

The Court allowed Mrs Carmichael’s appeal on the same basis. Lord Toulson stated that he could not ‘see a sensible reason for distinguishing between adult partners who cannot share a bedroom because of disability and children who cannot do so because of disability. And the same applied also to distinguishing between adults and children in need of an overnight carer’. He added that there was an ‘ironic and inexplicable inconsistency in the Secretary of State’s approach in the Carmichael and Rutherford cases’ referring to the best interests of the child argument relied on by the Secretary of State to justify the difference in treatment in the Carmichael class compared to the Rutherfords, where children are treated worse than adults. The Court also agreed that DHPs did not justify the difference in treatment.

What the judgment means for the Rutherfords and for other families who care for disabled children who need overnight care, is that they will not be subject to the bedroom tax for an additional bedroom. Similarly, where adults cannot share a bedroom because of disability they will be exempt from the bedroom tax. For Paul and Sue, now they will be able to move on with their lives and continue to care for Warren at home.