The latter, which was slipped out without fanfare on Tuesday in an administrative circular, confirms that the bedroom tax should not apply in cases where severely disabled children are unable to share a bedroom.
A casual observer of Commons oral questions the previous day might have assumed that this last concession was the government’s intention all along. The work and pensions secretary Iain Duncan Smith told MPs (column seven):
As the law stands, when a local authority agrees that a family needs an extra bedroom because their child’s disability means that they are unable to share, the family can be entitled to the spare room subsidy in respect of that extra bedroom.
Duncan Smith was merely reaffirming, it seemed, what the prime minister David Cameron had declared – rather sweepingly – at prime minister’s questions the previous week, namely:
Anyone with severely disabled children is exempt from the spare room subsidy
What neither answer reveals, however, is that for the past 10 months the government has been fighting in the courts to overturn the very law that Duncan Smith appeared to uphold so robustly on Monday.
It seems that even as the prime minister was telling MPs severely disabled children were exempt, government lawyers were still actively seeking to quash an appeal court ruling last May that would ensure exemptions for severely disabled children did not apply.
That ruling, in May 2012, (Gorry versus Wiltshire and the Secretary of State) held that private rented housing benefit size critieria – and by extension the bedroom tax rules in social housing – potentially discriminated against disabled children who needed a bedroom each because of their physical or health needs.
The case involved the Gorry family. Of the family’s three children, two were severely disabled: one with spina bifida the other with Down’s Syndrome. They argued they needed a four bedroom property (rather than a three bed) because of their children’s requirements. The local authority disagreed, and refused a £74 a week housing benefit payment for the “extra” bedroom.
The court, however, ruled in favour of the family, declaring that this was unlawful and discriminatory on grounds of disability contrary to Article 14 of the European Convention on Human Rights.
According to the ruling, the Secretary of State:
failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria
Ministers lodged an appeal, and advised local authorities to withold benefit payments pending the outcome of the appeal (the appeal which it dropped on Monday). If councils did suspend the payments, they will now have to make backdated payments to affected claimants. If the sums involved in the case of the Gorry family are a guide, those payments could amount to thousands of pounds. It is not yet known how many families are affected.
The question now is how far does the Gorry ruling impact on other families with disabled children affected by the bedroom tax, or indeed disabled adults who are unable share a bedroom? The government faces another legal challenge, expected to go ahead in May, brought by 10 disabled people and their families. They argue that the bedroom tax is discriminatory. According to Inside Housing, the families:
…want the courts to rule that the new regulations are unlawful as they ‘unjustifiably discriminate against housing benefit claimants who are disabled or care for disabled family members’.
They say the new regulations fail to take into account their circumstances, contrary to Article 14 of the European Convention on Human Rights, which protects against discrimination.
The government is currently arguing the “10 families” case should not be allowed to proceed. Yet by dropping its appeal against the Gorry ruling, it finds itself in a tricky position. If Gorry is now “good law”, legal experts believe it can and will be used by families affected by the bedroom tax to challenge the policy, and not just those with severely disabled children.
The principles in this case [Gorry] should extend to cases where couples are unable to share a bedroom because of disability.
Ministers have made much of the existence of discretionary housing payments (DHPs) as a means for local authorities to support families with disabled children hit by the bedroom tax. Interestingly, Lord Justice Kay concluded in his court of appeal judgement (see link to transcript on right margin of this page) that DHPs, being capped and time limited, fell
far short of being an adequate solution to the problem.
The government’s capitulation on Gorry can only, it seems, strengthen the “10 families” case. If that challenge succeeds, it could blow a huge hole in the bedroom tax. Of the 660,000 people affected by the bedroom tax, around 100,000 live in homes specially adapted for disability, according to the National Housing Federation; it also estimates 230,000 people in receipt of disability living allowance will be hit by the tax.
So far the government’s three concessions affect only a few thousand people. If much wider exemptions are won by disabled claimants, it has to be questionable whether the policy can survive. The stakes are high.
• Further to the pastial concession on Foster carers. As I report today, the Fostering Network charity says the exemption will only apply to a single bedroom, so foster carers in receipt of housing benefit who look after more than one child will still face a penalty of potentially hundreds of pounds a year. For further discussion, see the Nearly Legal blog.
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