Disabled children – “exempt” from the bedroom tax?
At Prime Minister’s Questions on Wednesday [6 March 2013] David Cameron claimed that “anyone with severely disabled children is exempt from the spare room subsidy”, more commonly known as the “bedroom tax”. Leaving to one side the semantics around the changes to housing benefit due in April (the official title is the “social sector under-occupancy penalty”), this would be a welcome exception indeed. Unfortunately it doesn’t stand up to closer scrutiny. The Government is in fact fighting tooth and nail through the courts to ensure that no such exemption applies.
Under the new regulations which come into force in April, tenants in the social rented sector will be penalised by deducting 14% from their housing benefit if they have one excess bedroom or 25% if they have two or more. (1) Two children under 10 are expected to share a room, as are two children of the same sex under 16. There is no exemption for severely disabled children whose disability prevents them from sharing.
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 (2). Mr Gorry, who is represented by the Child Poverty Action Group, 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. He was renting in the private sector and applied for housing benefit. Under the size limit criteria (which are identical to those now being introduced in the social rented sector) his maximum housing benefit was restricted to an amount calculated on the basis his daughters would be sharing 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.
The Government’s Supreme Court appeal is due to be heard in December 2013. In the meantime, the DWP have issued the following Guidance to local authorities:
“While there has been no change to the Housing Benefit legislation, the Court of Appeal judgment is relevant case law and as such Local Authorities are legally bound to apply the judgment when determining applications for Housing Benefit under the Local Housing Allowance size criteria…. Local Authorities should also bear in mind that, should an appeal [to the Supreme Court] by the DWP be successful, the decision will need to be reversed. They should therefore consider suspending the part of the HB award that relates to the extra room allowed as a result of the Court of Appeal judgment, pending any appeal by the DWP…”
This refers to local authorities’ statutory power to suspend part of the housing benefit payment while a test case is pending, in this case the Government’s appeal to the Supreme Court in Gorry.(3) It should be noted that this is only a power - local authorities can decide not to suspend payment. Given the harsh impact any suspension would have on the human rights of severely disabled children, there would potentially be strong arguments for challenging any suspension by judicial review. Where the local authority is also the landlord, it may even be in their interests not to suspend so that families can continue to pay rent.
“Significant questions of constitutional law”
Rather than wait to see what the local authority decides, a number of tenants with disabled children are already issuing judicial review challenges to the regulations themselves. The Government is also defending these in full. A collection of 10 cases are due to be heard in May. In granting an urgent hearing, Mitting J commented that the issue raises “significant questions of constitutional law” and that “it is deeply unsatisfactory to set out a set of very clear rules and then say in individual cases you may have to depart from them”. [NL - our note here]
For those families who cannot get a solicitor on legal aid, the only option is to urge the local authority not to suspend payment. Otherwise they face going into rent arrears or having to move to smaller unsuitable accommodation, if any is available. Some parents may even have to put their child into care.
Far from exempting severely disabled children from the bedroom tax, the Government is going out of its way to ensure that it hits them hard. The best way that David Cameron could protect the severely disabled is to drop its appeal to the Supreme Court and amend the Regulations accordingly.
Legal Officer, Child Poverty Action Group
(1) Reg 5 HB (Amendment) Regulations 2012 (SI No.3040), which inserts new regs 12BA, A13 and B13 into the HB Regulations 2006
(2) Burnip, Trengove, Gorry v SSWP  EWCA Civ 629
(3) DWP, under Regulation 11(2)(b) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (SI 2001/1002).