Reproduced below is an interesting Guardian article following yesterday’s High Court judgement regarding the bedroom tax. The article considers the contradictory nature of this policy and how a policy that leads to such significant discrimination and hardship can ever be justified. The article concludes that ultimately this is a political, rather than a legal question. The claimaints intend to appeal the decision and seek a hearing in the Court of Appeal, so keep your eyes peeled for more news on this matter
Disabled people hit by the much-criticised “bedroom tax” have been left stunned by the Tuesday’s high court judgment, which threw out the challenge that the tax was discriminatory. While campaigners hoped the judgment would inject justice into the policy, this was always likely to lead to disappointment because the legal mechanism of judicial review only allows the court to examine whether the correct procedures have been followed during the decision-making process – in this case, whether the government properly considered the provisions of the European Convention on Human Rights (ECHR), now enshrined in the Human Rights Act 1998, and the Equality Act 2010, when drafting the regulations. It does not allow for consideration of whether a policy itself is just or moral. This may help some to understand today’s ruling. Although the taxis evidently discriminatory in nature, the policy-making process complied with the relevant legal obligations.
It is clear that the tax discriminates against disabled people whose housing needs may be different from non-disabled people because of their disability, and are unable to move or to increase their income by earning. The judgment holds that this is justified in the context of the wider policy objectives behind the regulations.
There are nevertheless some puzzling anomalies. Last year, the court of appeal, in the Burnip, Trengove and Gorry case, established that where disabled children are unable to share for reasons related to their disability, the level of benefit should reflect the need for an extra bedroom. However, today’s judgment declined to extend this principle to disabled adults in a similar situation. This failure is disastrous for couples such as Jacqueline and Jayson Carmichael, who are unable to share a room because Jacqueline, who is severely disabled with spina bifida, needs a specialist bed and pressure mattress and her wheelchair next to the bed. As Jayson cares for Jacqueline 24/7, this seems particularly unjust.
The judgment holds that discretionary housing payments (DHPs), allocated by local authorities on the basis of exceptional housing need, are an adequate and sensible solution to the hardship faced by disabled people and their families who, for example, need the extra bedroom, have adapted homes or for whom there is no suitable alternative accommodation available. This appears to run contrary to the Burnip judgment, however, which the court of appeal held that DHPs cannot be seen as a complete or satisfactory answer to the problems created by shortfalls in housing benefits, because they are discretionary, temporary and therefore inherently insecure. In this respect, the discrepancy between today’s judgment and the reality on the ground is striking. Research by the Papworth Trust indicates that DHPs are proving to be no solution at all, with one in three disabled people, including some with extensive adaptations, being denied DHP assistance.
The inadequacy of DHPs is well illustrated by the case of Richard Rourke, a wheelchair user who has had extensive adaptations to his home but has been granted a DHP of only £7.41 towards a benefit shortfall of £25, and is now facing eviction for arrears due to the bedroom tax. We can only imagine the hardship this will cause to Richard and his disabled daughter, who returns home from university for holidays and weekends. Today’s judgment extinguishes their hope.
Because DHPs are discretionary, the government cannot lawfully dictate to local authorities how they should be allocated, although they can offer guidance. In the Burnip case, the judges made it clear that claimants should not be expected to use DLA and other disability-related benefits towards their rent, but the Papworth Trust research shows that councils are not being consistent in following this principle and many are denying DHP assistance on the basis that DLA takes their income above the strict means test.
The extra funding allocated to DHPs to help disabled people affected by the bedroom tax is also totally inadequate. £25m has been allotted for the DHP fund, across all local authorities, in recognition of the particular circumstances faced by claimants with adaptations, whom the government acknowledges have a legitimate need for support. However, this takes no account of disabled people like the Carmichaels, for whom the policy is discriminatory in other ways. For the judgment to claim that DHPs are a proportionate and adequate solution to the discrimination faced by disabled people under the bedroom tax, seems bizarre.
The claimants in Tuesday’s case have indicated their intention to mount an urgent appeal against the judgment, which effectively concludes that the bedroom tax complies with legislation, and that its discriminatory effect is justified. Disabled people and their allies are left wondering how a policy which leads to such obvious and significant discrimination and hardship can ever be justified. But that, ultimately, is a political question, rather than a legal one