Iain Duncan Smith has just announced [PDF] an important concession on the bedroom tax: foster parents will receive an additional room – as long as they have fostered or been approved to do so in the past 12 months; and parents with children in the armed forces will also be able to claim a bedroom for them – as long as they intend to return to the home.
This is welcome, particularly the implicit recognition that the emergency Discretionary Housing Payment fund is not a sufficient safeguard for ‘hard cases’. The Department for Work and Pensions (DWP) had said that local authorities should use this discretionary and cash-limited fund to protect vulnerable households on a case by case basis. Today’s announcement instead gives 5,000 foster parents and ‘rather fewer’ forces families iron-clad certainty of protection.
Helpful as this is, it still leaves many thousands of vulnerable households at risk of the cut – including many disabled people. Duncan Smith’s written statement confirms that the DWP continues to maintain that the over-stretched Discretionary Housing Payment fund is the best way to support disabled households.
DWP will imminently publish guidance on how local authorities should use DHP to support households with severely disabled children who cannot share bedrooms. It would be far preferable if further protection was provided in regulations: without this certainty many disabled households simply do not know the extent to which they will be affected by the bedroom tax or not.
Shelter has been approached by families who have very good reasons for their ‘spare’ bedrooms, for example when children cannot share a bedroom for health reasons, or to store essential medical equipment. To date ministers have said that local authorities should step in and use DHP to support these families, but there is no guarantee that this will happen, and families have no right to appeal if DHP is not granted.
A stronger and simpler way to protect these families would be for the DWP simply to drop their opposition to two pending court cases.
The Court of Appeal ruled last year, in the case of Burnip, Trengove and Gorry, that the way housing benefit is calculated discriminates against disabled people, because the LHA calculator which is used to determine LHA entitlement did not allow for an extra room where a disabled person had an overnight carer, or where two children couldn’t share a room because of a disability. The same calculator is used as the basis for bedroom tax assessments. DWP has been fighting this ruling; the crucial question now is whether the outcry over the bedroom tax can persuade them to drop this challenge.
[Update: Apparently it can. DWP have now confirmed they will not appeal the ruling.]
Since the Burnip case was first launched the Government had actually – and in a very welcome move – amended the rules to allow for an extra bedroom for an overnight carer (although only to care for the claimant or their partner). The needs of disabled children were still unrecognised by the system.
DWP had until now been remarkably firm in opposing the Burnip case judgement. They planned to appeal again in December, and have not amended the housing benefit regulations to comply with the ruling.
Guidance sent to local authorities guidance [PDF] last August acknowledged this was case law and told them to use their discretion to identify severely disabled children who cannot share a bedroom. However, it also reminded them that DWP planned to appeal the Burnip ruling and warned them that if the appeal was successful the decision would need to be reversed. For this reason they had advised local authorities to suspend the part of the award that granted the extra bedroom. Confirmation that DWP will not appeal will now give local authorities the freedom to fully implement the law as it stands.
The second crucial question will be whether DWP now alters its approach to another legal challenge. A case has been brought by the families of ten disabled children on the grounds that the restrictive rules ‘unjustifiably discriminate against housing benefit claimants who are disabled or care for disabled family members’. The circumstances of these ten households are different to the family in the Burnip case, and a successful court hearing – and DWP amending the regulations to provide guaranteed protection – would go much further towards ensuring the needs of disabled families are recognised.