Attempts to moderate the worst impacts of the bedroom tax have suffered a set-back after the High Court ruled that the policy making process did not disproportionately discriminate against disabled people. If you are disabled, have severely disabled children or are at risk of violence, the hope for protection has now shifted back to politicians and campaigners. It has become even more important that national political leaders offer support, or they will bear responsibility for the emerging consequences of this policy.
The long-awaited verdict is in response to judicial reviews brought by ten households against the social sector size criteria (to give it its original name). The ten households contain disabled children and adults and vulnerable children who could not share bedrooms, for example due to the risk of violence or trauma after domestic violence.
The families’ needs for additional space had not been recognised in the new housing benefit rules for social tenants, which make a crude assessment based on the age and gender of people living in the household. The claimants argued that the bedroom tax discriminates against disabled people by failing to recognise their additional needs and that the Secretary of State for Work and Pensions (Iain Duncan Smith) had breached the public sector equality duty in introducing the bedroom tax.
Although the High Court recognised that the bedroom tax would discriminate against some disabled people, the High Court accepted the Department of Work and Pension’s (DWP) argument that it had recognised this and provided adequate mitigation, in the form of £25 million in Discretionary Housing Payment (DHP). The Judge also rejected claims the bedroom tax breached the public sector equality duty and accepted that DWP had considered the needs of disabled people.
Needless to say, the verdict is disappointing. Shelter had provided supporting evidence in the case precisely to highlight the inadequacy of DHPs, which Ministers have repeatedly offered up as the solution to every adverse impact of welfare reform. The danger has always been that the cash-limited pot simply will not go far enough to support all those that need it, and the discretionary nature of the fund means families cannot guarantee if they will be successful.
Shelter’s Children’s Legal Services presented evidence to the High Court to show that Discretionary Housing Payments were unlikely to adequately support the ten households. Research completed for us pro bono by Freshfields Bruckhaus Deringer LLP found wide variation in local authority’s policies as to how they planned to use the emergency funding to meet the needs of disabled and vulnerable households.
Disappointingly the judge did not engage with the limitations of relying on a short-term and unpredictable approach to safeguard disabled people. Instead he accepted the offer of additional DHP as adequate enough.
But the fund is sufficient to support 35,000 households a year, just five per cent of all those hit by the bedroom tax. Ministers also said during the passage of the Welfare Reform Act that the £25 million was specifically targeted at disabled people living in homes that had been adapted to meet their needs, but now it appears it will be expected to stretch further to support a wider group of claimants.
The judicial review also floundered because the Judge accepted the DWP’s arguments that it would be hard to define a particular category of disabled and vulnerable adults and children who were unable to share rooms. It is true that this will not be a neatly definable group, and attempts to use proxies such as eligibility for Disability Living Allowance, would draw the net for exemptions broadly.
However, following an earlier Court of Appeal ruling local authorities will already have to grapple with this dilemma. The judge in the Gorry case argued that housing benefit regulations did discriminate against disabled siblings who could not share a bedroom and local authorities must now legally pay out additional housing benefit to families in this specific circumstance.
Ultimately, the judicial review scrutinised the policy making process, and found that it did not unreasonably discriminate against disabled people. The affected families are looking to appeal the decision to the Court of Appeal, and Shelter would support them in the appeal, to argue that the High Court did not take sufficient account of our evidence.
But it is not a commentary on the outcome of the policy – or indeed the strength of the rationale behind it – and is certainly not a moral endorsement of the bedroom tax. Judicial reviews remain an important tool to challenge bad and unjust decisions, but the bedroom tax now firmly sits in the realm of political tussles, and it will take political will to truly protect the hardest hit.