Bedroom Tax: Shifts, U-turns and rumours

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. The Court of Appeal judgment is now considered to be case law and as such LAs are legally bound to apply the judgment.
  11. The judgment applies to both the LHA size criteria and the reduction of the spare room subsidy which applies from 1 April 2013.
Posted in assured-tenancy, Benefits, FLW article, Housing law - All, secure-tenancy and tagged . RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

18 Comments

  1. Posted 12/03/2013 at 8:46 pm | link to comment

    An eagled-eye person commented on my blog about the foster carers quote in the ministerial statement. This says “People who are approved foster carers will be allowed an additional room, …”

    Note the singularity – a room and not rooms. As foster carers can often foster two or more children at one time and need a ‘spare’ room for each, then does the exemption apply to just one room or to foster carers per se?

    I note too Paul Lewis says DWP has reduced DHPs by £5m which was previously earmarked for foster carers. Yet it now paying 5000 foster carers £14 that it was previously takign off them in bedroom tax…which is £3.65m! So award (whatever sort of exemption) and shaft foster carers for £1.35m?

    What a nice man IDS is…

    • Posted 12/03/2013 at 10:05 pm | link to comment

      Joe, after I was wrongfooted about the way the disabled child change seemed to be going, based on what IDS said on that statement, I am waiting to see what the actual regs and/or guidance say before drawing any conclusions.

  2. sue
    Posted 12/03/2013 at 9:48 pm | link to comment

    If this is now case law what relevance do the observations by Justice Henderson have on the issue of using disability benefits for rent and the inadequacy of DHPs ? And his remark that DHPs are not to be relied on by Government’s as mitigation and justification for policies of this sort? Do you think the Government are just covering their backs by making sure the ‘obvious’ cases don’t get their day in court ?

    • Posted 12/03/2013 at 10:01 pm | link to comment

      On your last question, yes. On the broader issue of use of disability benefits and DHP, we will have to see how the other (remaining perhaps) judicial reviews play out. But will generally be on an issue by issue basis – specific circumstances, conditions etc..

  3. Posted 13/03/2013 at 8:40 am | link to comment
  4. JamieT
    Posted 13/03/2013 at 10:59 am | link to comment

    Can we all stop referring to it as a being a bedroom ‘tax’? This left-wing misnomer really winds me up.

    Rees-Mogg may be completely detached from reality (show me an MP who isn’t), but I think he still has a valid point. Unfortunately people will always play the system and I can understand his concern that some will abuse the foster carer exemption unless it is airtight.

    If you think people having children to get council housing is a myth then might I suggest you go and speak to Hilary Pannack, the CEO of Straight Talking (teenage pregnancy charity) who will put you staight on the matter.

    • Posted 13/03/2013 at 1:03 pm | link to comment

      JamieT I think the time for debate over the nomenclature has passed. Though perhaps the DWP’s original title of ‘bedroom penalty’ would do? [Having been certain I saw 'penalty' used in DWP docs I was digging through, I can't find it again. NL] In any event, it takes effect as a direct deduction from income, at source, so operates as tax for those affected.

      Rees-Mogg was arguing why there shouldn’t be an expemption for carers at all, not about conditions for any exemption.

      And people having children to get council housing has long been one of the scare stories. Of course it happens on occasion, but the tale peddled was that there were huge swathes of teenage women getting pregnant solely in order to get social housing. That the figures never supported that story, let alone any examination of why people had become pregnant, assuming it was even deliberate, hasn’t stopped it being retailed. Hence myth.

  5. Posted 14/03/2013 at 4:30 pm | link to comment

    Two quick points.

    The first is that I note Barnardos has issued a news release that agrees with my view on room being singular above and, interestingly tease that it doesnt apply to ALL foster carers too – see http://www.barnardos.org.uk/news/Bedroom_Tax_campaign_continues/latest-news.htm?ref=87155

    The second is on nomenclature. I am more thn happy to call the bedroom tax the spare room subsidy IF we call LHA, the private rented sector version of housing benefit the ‘added taxpayer cost of room subsidy’.

    The private rented sector receives £2.17bn per year more than social housing for the same number of properties, hence it is subsidised more. In fact given social housing receives £1.2bn of capital subsidy and the PRS £2.17bn of added revenue subsidy from LHA then the private sector is more subsidised…but nomenclature and ‘left-wing?’ In the UK, yes youre right nomenclature is just a contrived gambit to deflect away from serious discusssion of the under occupation charge to give it its correct name

  6. kjetilniki
    Posted 17/03/2013 at 6:49 pm | link to comment

    the concession made re armed forces.
    Unless my memory plays me wrong, i think can recall reading a case relating to a student ? the right level of LHA? and corrctly the student was treated as living at home for HB purposes altho away at univ returning at holidays.
    the bedroom tax HB reg B13
    (5) The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant’s dwelling as their home (and each person shall come within the first category only which is applicable)—
    occupy as home having regard to the definition of non dependant and readg the HB regs as a whole the IDS proposal probably no more than states the correct position even without an express provision.
    3.—(1) In these Regulations, “non-dependant” means any person, except someone to whom paragraph (2) applies, who normally resides with a claimant or with whom a claimant normally resides.

    of course the bedroom tax would reduce HB by about say 14% of ? £150 say £22pw.
    “Regular soldiers receive over £272 a week in Phase 1training”
    the nondependant deduction is at 2012-3 rates is £59.05pw HB and £6.55 pw CTB a total of £65.60.
    gosh a lot more money off HB. very clever IDS.

  7. clive
    Posted 24/03/2013 at 3:16 pm | link to comment

    I really get annoyed at the term “foster carer”.

    Being an actual “carer” this misuse marginalises us (carers). We get little enough notice paid to us or our needs but “foster carers” further muddies the water.

    Fostering is a choice which can be well paid, being a carers on Carers Allowance means there normally isn’t a choice and we get paid next to nothing, though draw the state pension and still be a carer and you do get nothing.

    • Posted 24/03/2013 at 6:57 pm | link to comment

      Clive, I’m not sure that I agree that ‘foster carer’ as a term marginalises carers, but I have taken care to distinguish between the two in the post (as indeed has the DWP, though not in a good way).

  8. sue
    Posted 26/03/2013 at 11:57 pm | link to comment

    Just wondered, to return to this yet again, why the law on ‘legitimate expectation’ has not been used in the legal challenges. Surely a long-term tenant would have had an expectation that their rent would be covered: this used to be made clear in LA housing benefit letters: tenants in social housing would have the full rent paid, notwithstanding yearly increases in rent. As with the case years ago re. rules on high-earning immigrants who had organised their lives in the expectation of staying until the Government moved the goalposts (it was declared unlawful) a tenant could argue that they would have made different choices had they known their expectation would not be honoured. A case recently, tenant with terminal cancer, was encouraged to do mortgage rescue deal with local council, now must pay bedroom tax. Surely legitimate expectation could be argued here? Also, why are none of the challenges using Article 8? Appreciate your wisdom on this NL!!

    • sue
      Posted 27/03/2013 at 12:21 am | link to comment

      Sorry, just realised that of course the Liberty challenge uses article 8!

    • Posted 27/03/2013 at 8:43 am | link to comment

      Sue

      The Liberty challenge is using Art 8 in the context of separated families. I am not sure it is their strongest point, but it is clearly on the effect on family life.

      But Art 8 is not a right to a home per se. It does not prevent eviction, for example. And it is most definitely not a right to the home you happen to be in, without there being other circumstances. There is a further difficulty in that you would have to show that the disruption to private or family life was unavoidable, so show impossible to downsize, earn additional income or take a lodger etc..

      I can’t see legitimate expectation working. HB does not cover full rent in many cases – depending on income – in any event. Benefit information letters are for the period stated in the letter. There is no way that a court would find that the Govt had made a promise to be relied on that benefit levels would be sufficient to pay rent of X in perpetuity, I’m afraid.

6 Trackbacks

  1. [...] A great post here on Nearly Legal about the Bedroom Concessions and what they mean [...]

  2. [...] Nearly Legal gives us an update on Bedroom tax and [...]

  3. By Bedroom Tax | Jon Leighton on 16/03/2013 at 10:07 pm

    [...] and housing professionals over the past few months, we would not have seen a climb down like this one, forcing the Government to agree more [...]

  4. [...] Father of three Richard Gorry appealed against the policy arguing the policy discriminated against the disabled as his two children were unable to share bedrooms due to their disabilities. Iain Duncan Smith has since gone on to highlight that those in circumstances like Richard Gorry, whose children are severely disabled, will not lose part of their housing benefit. Disabled adults unable to share a bedroom with their partner, however, are not exempt. [...]

  5. By cmshome on 23/03/2013 at 3:36 pm
  6. [...] • 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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