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PM alters Bedroom Tax as DWP drop appeal to Supreme Court in Burnip, Trengove and Gorry

The introduction of the Housing Benefit social sector under-occupancy penalty, or Bedroom Tax as it has become known, has clearly been difficult. The government has unsuccessfully tried to seize back the language and rebrand the policy as the ‘spare bedroom subsidy’. In a further presentational difficulty, the Chancellor of the Exchequer’s Help-to-Buy scheme, announced in the budget, was soon amusingly rebranded as the ‘spare home subsidy’. However, added to these problems of presentation, are problems of substance: this policy discriminates against many different claimants on the basis of their disability.

Almost twelve months ago, in Burnip, Trengove and Gorry v Secretary of State for Work and Pensions [2012] EWCA Civ 629, the Court of Appeal held that the local housing allowance size criteria discriminated unlawfully against the three appellants on grounds of disability, by not including provision to meet their need for an additional room. The Secretary of State then sought leave to appeal to the Supreme Court, however, on 12 March 2013 the Secretary of State let it be known that he would not be pursuing his appeal in the light of changes to its Bedroom Tax and a statement to the House of Commons on the matter by the Prime Minister.

Birmingham Law Centre’s Jan Jesson had represented Lucy Trengove at her successful First-tier Tribunal hearing followed by her appeal in the Upper Tribunal and on to the Court of Appeal. The Secretary of State had then fought hard to appeal the decision to the Supreme Court.

This change of heart came ‘out of the blue’ and was not conveyed to the claimants’ legal team (Irwin Mitchell, CPAG). Instead it simply appeared in a guidance document issued to local authorities in HB/CTB Circular U2/2013. The upshot is that from the date of the Court of Appeal judgment (15 May 2012), local authorities must allow an extra bedroom for children who are unable to share because of their severe disabilities. The Circular sets out the following guidance for assessing whether children are unable to share a bedroom:

“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.” (At para.7).

The Circular also states that the judgment:

  • applies to both local housing allowance size criteria and social rented sector size criteria (aka ‘bedroom tax’) due to be introduced from 1 April 2013;
  • does not extend to 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.

The DWP’s decision to drop its appeal to the Supreme Court follows the Prime Minister’s assertion on 6 March 2013, that those with severely disabled children would be exempt from the ‘bedroom tax’:

“The Prime Minister: Let us be absolutely clear that this is not a tax. Let me explain to the Labour party that a tax is when someone earns some money and the Government take some of that money away from them—that is a tax. Only Labour could call a benefit reform a tax increase. Let me be clear to the hon. Gentleman: pensioners are exempt, people with severely disabled children are exempt and people who need round-the-clock care are exempt. Those categories of people are all exempt, but there is a basic issue of fairness. How can it be fair that people on housing benefit in private rented accommodation do not get a spare room subsidy, whereas people in social housing do? That is not fair and we are putting that right.” (Hansard 6 Mar 2013: Column 950)

The Child Poverty Action Group’s Legal Officer, Mike Spencer, challenged the Prime Minister’s assertion in a blog for the Nearly Legal site, pointing out that the government was in fact fighting CPAG in the courts to prevent any such exemption:

“The Prime Minister was almost certainly referring to the Court of Appeal’s decision in Burnip, Trengove and Gorry v Secretary of State for Work and Pensions. Mr Gorry, who is represented by CPAG, has two young daughters, one of whom has Downs Syndrome and the other spina bifida, the effect of which is that it is they are unable to share a room. … The Court found that this amounted to discrimination on grounds of disability contrary to Article 14 of the European Convention on Human Rights.

The irony behind David Cameron’s claim is that the government has appealed against Gorry to the Supreme Court and is urging local authorities to suspend payments for severely disabled children while the appeal is ongoing.”

Before the Court of Appeal hearing in 2012, the government had conceded that Housing Benefit should be available for claimant’s whose disability, like Lucy Trengove, required overnight carers to occupy a ‘spare’ bedroom. They have now conceded that the bedroom tax should not apply to severely disabled siblings. It will be interesting to see what happens to this scheme once the High Court hears the Judicial Review brought by 10 disabled claimants.

For further comment see ‘Bedroom tax: drastic u-turns, partial concessions, and spin’ – Patrick Butler’s Cuts Blog in the Guardian dated 14 March 2013.

Desmond Rutledge and Richard Drabble QC were instructed by Birmingham Law Centre on behalf of the late Lucy Trengrove in the Court of Appeal.

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