Published: 9 Nov 2016 by Heather Spurr

A crucial judgement today on the bedroom tax creates complications for the government and means they will have to make changes to the policy. Ministers should look at the problems created by this measure and act to finally abolish it.

The Supreme Court today handed down a number of long-awaited judgements on the bedroom tax. They represent a victory for some social housing tenants but a setback for others.

The tenants, most of whom have a family member with disabilities, challenged the government’s bedroom tax policy – which reduces their housing benefit if they have one or more ‘spare’ bedroom. They argued that the measure, which was introduced in 2013, is discriminatory and breaches the Equality Act.

In its judgement the Supreme Court found the bedroom tax did discriminate against a woman who cannot share a bedroom with her husband because of her disabilities. It also dismissed an appeal by the Department for Work and Pensions (DWP) relating to a couple who need an overnight carer for their grandson with severe disabilities.

But it found against a woman whose home has been converted into a ‘sanctuary scheme’ to protect her against domestic violence, and some other families who challenged the government and said that discretionary help was sufficient to meet their concerns.

We can draw two key points following today’s judgement:

1. The Supreme Court accepted that there was unlawful discrimination against families that need an extra bedroom due to reasons directly connected to a disability. Private sector tenants receiving Local Housing Allowance (LHA) should gain this protection too.
2. Discretionary Housing Payments (DHPs) and whether a tenant receives them are significant to the success of a legal challenge.

‘Without reasonable foundation’

Jacqueline Carmichael, who has a number of disabilities, including spina bifida, lives in a two bedroom flat with her full-time carer husband. Because of her disabilities, the couple cannot share a bedroom. Susan and Paul Rutherford care for their disabled grandson, who has profound mental and physical disabilities, and live in a three bedroom, specially adapted home. Carers provide respite and stay in the house two nights a week.

Housing benefit rules currently entitle claimants to an additional bedroom in the case of children – but not adults – who cannot share a bedroom because of their disability and allow an additional bedroom if an adult needs an overnight carer. Today’s ruling said there was no reason to distinguish between disabled adults who cannot share a room and disabled children – or between adults and children who need an overnight carer. The judges therefore found the original decisions relating to the Carmichaels and the Rutherfords were “manifestly without reasonable foundation”.

But importantly, the court also found against a number of other claimants, including James Daly, the father of a child with severe disabilities who stays with him every weekend – but not often enough to qualify for housing benefit to cover the additional bedroom. The court found that although he had a powerful argument to claim DHP, they had not been unlawfully discriminated against as the bedroom was not needed specifically because of his son’s disability.

Woman ‘A’ lives in a three bedroom house that was converted into a secure space under the ‘sanctuary scheme’ after she moved in. But significantly, the court found that there was no automatic link between living in a sanctuary scheme and requiring an extra bedroom. Woman ‘A’ moved into the three bedroom house because there were no two beds available at the time and although the court found there are strong reasons for her staying, these are unrelated to the size of the property.

Crucially, the court found that the fact that people have strong reasons for staying in their property is taken account of through DHP payments.

Shelter provided evidence in support of ‘A’s case and we have always argued that Discretionary Housing Payments are relied on too broadly. Households in specific and vulnerable situations need a guarantee that they will not be made homeless because they cannot afford the rent. Disappointingly they will still be reliant on unpredictable and discretionary funds.

The headache for government?

The Carmichael and the Rutherford decisions were significant, and mean that the DWP will need to amend the bedroom tax regulations. A spokesperson for the department has already said “we will take steps to ensure we comply with the judgement in due course”. We hope this happens as soon as possible.

The importance attached by the court to DHPs may be troubling for councils’ already overstretched DHP pots. Figures published in July show that 121 councils in England and Wales last year were forced to top up their DHP pots with their own funds because of rising demand. The government increased its DHP funding by £25m for 2016/17. However it is likely that councils’ pots will become increasingly strained as new policies such as the reduction to the benefit cap take effect.

Today’s decisions present a mixed picture for social tenants, but also for government. It will have to change the bedroom tax policy in order to comply with the law, and after that, there will be crucial questions about whether councils are equipped to deal with rising demand for DHPs. Today’s judgements should serve as an important cue for ministers to finally abolish this policy.