Keeping an eye on the law (March 2013)

As I mentioned in my post below, I like to keep an eye on the housing news, and, as a law graduate/geek, this includes housing law news.
My main source of info in the Nearly Legal blog (get email updates by subscribing at the bottom of the page here).
This morning’s update is on yesterday’s announcments regarding the bedroom tax:

Bedroom Tax: Shifts, U-turns and rumours

Posted: 12 Mar 2013 01:36 PM PDT

Now that was a busy day on the Bedroom Tax front, complete with a parliamentary statement, new DWP Guidance to Local Authorities, rumours and conjecture.

Let us start with the definite bits.

The new Guidance on disabled children unable to share a bedroom. The text of the guidance, HB/CTB U2/2013 is at the end of this post, in full. The upshot is that the DWP is withdrawing its appeal against Burnip (or specifically against the finding in Gorry, the linked case) and accepts that LHA and Housing Benefit should pay for an ‘additional’ bedroom where that bedroom is required because of a child’s disability preventing them from sharing with another child. This will apply for the bedroom tax.

This is an exemption, not a question of directing the targeting of DHP as it appeared earlier today. The mechanism is that the bedroom need is for a case by case assessment by the benefit authority. Para 7 of the guidance says:

When a claimant says that their children are unable to share a bedroom, it will be for LAs to satisfy themselves that this is the case, for example, a claim is likely to be supported by medical evidence and many children are likely to be in receipt of Disability Living Allowance (DLA) for their medical condition. In addition LAs must consider not only the nature and severity of the disability, but also the nature and frequency of care required during the night, and the extent and regularity of the disturbance to the sleep of the child who would normally be required to share the bedroom. In all cases this will come down to a matter of judgement on facts of each individual case.

There are several things to note here. This is about disabled children only – the extent of the Gorry judgment. It does not (yet) extend to disabled adults unable to share a bedroom with their partner. It also does not apply to children who are unable to share a bedroom for other, non-disability related reasons.

I therefore suspect that while two or three of the current Judicial Reviews might just have been rendered academic, a couple of the children claims and all of the adult claims will continue.

Now, to the Parliamentary Statement by IDS, which is here and apparently contains two further exemptions. The easiest one is that

Adult children who are in the Armed Forces but who continue to live with parents will be treated as continuing to live at home, even when deployed on operations. This means that the size criteria rules will not be applied to the room normally occupied by the member of the Armed Forces if they intend to return home. In addition Housing Benefit recipients will not be subject to a non-dependent deduction, i.e. the amount that those who are working are expected to contribute to the household expenses, until an adult child return home.

Then foster carers. What IDS actually wrote was:

People who are approved foster carers will be allowed an additional room, whether or not a child has been placed with them or they are between placements, so long as they have fostered a child, or become an approved foster carer in the last 12 months.

This has given rise to intense discussion over whether this is an ongoing commitment or not. Some sources, such as @paullewismoney on twitter are being quite definite that this is also intended to apply to future foster carers, while people, such as @speyejoe are interpreting that ‘in the last 12 months’ as meaning that this is a commitment only for existing foster-carers, in what one might call the Jacob Rees-Mogg manoeuvre.

Jacob Rees-Mogg , a man who gives off an air of being likely to be highly put out if, by some mischance, his Wednesday bedroom is out of use so that he has to stay in his Tuesday bedroom for a second night on the trot, had this to say in the bedroom tax debate in the Commons on the topic of foster carers:

If fostering had a general exemption, everybody in receipt of social housing benefit would suddenly go off to the council and say that they wanted to be on the fostering lists, so that they would not have to give up their extra bedroom, but would then refuse any child who was sent to them.

While Mr Rees-Mogg’s updating of the “they have children to get a council house” myth to “they say they’ll have other people’s children to keep their council bedroom” is impressive, as is his casual disregard to the general (and indeed Government) view that more foster carers are a good thing, it would be a dubious basis for policy, even one being amended so late and in such a state of apparent panic as this one.

So we will have to see when the regulations emerge what the position is on future foster carers.

IDS has also reduced the £30 million additional DHP pot by £5 million, the amount apparently considered to be for foster carers (though of course not ring fenced).

Now, that sound you can hear is local authorities and social landlords tearing up their already completed assessments, writing to withdraw notifications and starting again…

Guidance:

HB/CTB U2/2013 12 March 2013

Court of Appeal judgement: Burnip, Trengove and Gorry

  1. We advised you in HB/CTB circular A6/2012 on 1 August 2012 (http://www.dwp.gov.uk/docs/a6-2012.pdf) that the Department for Work and Pensions (DWP) has applied for permission to appeal this decision to the Supreme Court.
  2. The Court of Appeal judgment on 15 May 2012 unanimously held that in the cases of Burnip, Trengove and Gorry the Local Housing Allowance (LHA) size criteria discriminated unlawfully against the three appellants on grounds of disability, by not including provision to meet their need for an additional room.
  3. The Housing Benefit Regulations were amended independently of the court case (Burnip and Trengove) and the changes came into effect in April 2011. This change allowed an extra bedroom where the claimant, the claimant’s partner or both, need and receive overnight care and require a bedroom for the carer’s use.
  4. For children with severe disabilities where they are unable to share a bedroom (Gorry), the department chose to appeal the decision to the Supreme Court on the grounds that the use of the size criteria was not discriminatory or in any case could be justified.
  5. The Secretary of State has today clarified the position regarding disabled children and has decided not to pursue the appeal further.
  6. This means that from the date of the Court of Appeal judgment on 15 May 2012, local authorities (LAs) should allow an extra bedroom for children who are unable to share because of their severe disabilities following the guidelines as set out in paragraphs 7 to 10 below.
  7. When a claimant says that their children are unable to share a bedroom, it will be for LAs to satisfy themselves that this is the case, for example, a claim is likely to be supported by medical evidence and many children are likely to be in receipt of Disability Living Allowance (DLA) for their medical condition. In addition LAs must consider not only the nature and severity of the disability, but also the nature and frequency of care required during the night, and the extent and regularity of the disturbance to the sleep of the child who would normally be required to share the bedroom. In all cases this will come down to a matter of judgement on facts of each individual case.
  8. It should be noted that the judgment does not provide for an extra bedroom in other circumstances, for example, where the claimant is one of a couple who is unable to share a bedroom or where an extra room is required for equipment connected with their disability.
  9. LAs were previously advised that as a result of the Court of Appeal judgment they could suspend part of the award which allowed for the extra room. For any cases where the LA has suspended for this reason, the suspension can now be lifted and the claimant notified of the revised decision. Arrears must also be paid as appropriate.
  10. 10.The Court of Appeal judgment is now considered to be case law and as such LAs are legally bound to apply the judgment. The judgment applies to both the LHA size criteria and the reduction of the spare room subsidy which applies from 1 April 2013.
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