Guest post by CPAG – disabled children and bedroom tax

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.

Discrimination

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.

DWP Guidance

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.

Mike Spencer
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 [2012] 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).

m4s0n501
Posted in assured-tenancy, Benefits, FLW article, Housing law - All, secure-tenancy and tagged , .

About Giles Peaker

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 +

28 Comments

  1. Can I please get all social networky and just ‘like’ this post, please? So many good points. Is anyone pressing for Cameron’s lies in Parliament on this to be highlighted?

  2. Another problem with the Burnip case, apart from the fact that the Secretary of State is fighting to overturn it, is that the Court only awarded declaratory relief, presumably under s4 of the Human Rights Act. The Court called on the Secretary of State to remedy the vioatiuon that it declared existed. The Court did not overturn the awarding decisions by the local authorities. There was no way the Court could interpret the size criteria to provide an extra bedroom for a disabled child: not by “reading in” a couple of extra words, not by striking down offending passages – it needs a complete re-write of the relevant reg, which is not a remedy available to a court under the HR Act.
    It is quite wrong for the responsibility to be passed to local authorities: this is the Secretary of State’s problem and he really should be amending both of the offending Regulations (the private sector size criteria and the bedroom tax ones, which on this point are identical). Indeed the PM’s comments in parliament, when he repeated four times that severely disabled children are exempt, have probably made it politically impossible for the government not to change the regs now. Lets hope so.

    • Well, as per the DWP guidance on the bedroom tax, the Govt has said that cases assessed to fall under Burnip should be awarded the higher rate, but actual payment suspended pending the Supreme Court decision. So should they fail in the Supreme Court, the benefit entitlement would be back dated to the Court of Appeal decision, in advance of any amendment of the Regs. Your general point on a declaration of incompatibility is right, of course, but that doesn’t seem to be the stance the DWP is taking.

  3. Pingback: Landlord Law Blog roundup from 4 March

  4. More worrying still is that when I did a recent random selection of about 5 local authorities near me in the North West not a single HB manager was even aware of the circular A6/2012 quoted above giving guidance re. Burnip. They had never even seen it. When they did all find it and get back to me, most were confused about what it meant and weren’t sure how to apply the advice. This comes on top of information coming back from discretionary housing payment teams who atill don’t know they can make longer awards than 12 weeks. This is an absolute shambles. I’m sure most parents witha disabled child will end up being told just to apply for a DHP with all the stress and insecurity involved with that. Cameron should be ashamed of himself.

  5. I am a single mum and full time carer for my disabled daughter …. She needs 24/7 care . I don’t have a partner and I have a spare room that I use for a member of my family to come a few nights a week to give me a break as my daughter has to have overnight feed and needs to be moved to prevent bed sores . I also use the spare room for portable hoist , standing frame , power chair and other bulky equipment . The home I am in has been specially built fort daughter and if she dies I must give up teneccey as I signed an agreement . I am now terrified as I know I won’t be able to pay the bedroom tax and I haven’t slept as I’m really worried that I will need to give up my 15 year old daughters home and go homeless . I can’t work as I need to be on call 24/7 for my daughter and she is also in and out of hospital . This is totally unfair on single parents with special needs children . But if a couple are together and one is disabled then they are exempt . I don’t have a partner but my daughter is disabled and receives highest rate . Think I will need to give up her home prime minister left me with no choice and nowhere to go . I heard him on sky news from his own mouth that patents with disabled children would be exempt and now he changing his mind . The prime minister himself should know how hard it is for us full time cares he has been there . Feel so upset and very very scared

    • Elizabeth,
      A couple where one is disabled aren’t exempt, but that makes no difference to your position. As matters stand, a room required for an overnight carer who doesn’t usually live there should not be classed as a bedroom, where the carer is for the tenant, or tenant’s partner. It isn’t wholly clear how often an overnight carer is needed to count. However, there apparently isn’t a similar provision in respect of a carer for children staying overnight.

      You should talk to the Council about this, and seek advice from law centre or advice centre as soon as possible.

      There are cases going on at the moment about needing the ‘extra’ room through disability, so watch this space.

      • There is an exempt form for couples … You need to tick the box you or partner and then a supporting letter from gp or anyone in social work that deal with the person with the disability you don’t need to send the dla award letter as they will check it themselves to see that who get the dla .. I have seen these forms and filled it out but scored out partner and put daughter …. I got letter today saying I have to pay £55.68 per month for spare room . I can’t afford it so I got no choice than to go homeless … I hate the government they haven’t thought this through any thing to make money !!!! They just like making life a misery for us carers and they have cut social work

        • Elizabeth,

          I don’t know what you mean by this exempt form for couples, but really they aren’t. This is one of the issues in one of the current Judicial Review.

          For the moment, all I can say is make an application for Discretionary Housing Payment, and talk to a law centre or advice centre about an appeal of the decision as soon as possible (and before the end of March, when legal ad will end for most benefit issues).

          Also keep an eye open here – we will be reporting on the judicial reviews and any other news as soon as it happens.

          • I’m watching the news everyday … I’m worried sick not been able to eat or sleep with the stress and I suffer high exnsity as am bad with my nerves . I have spoke to my housing and they haven’t a clue what’s going on .. But I did hear and watch prime minister say what he did

            • No, this is part of the problem. Nobody really has a clue about exactly how this is supposed to work. But what Cameron said was partly wrong.

              It is a very worrying time.

    • dear Elizabeth
      i have just read your story i am disgusted at the way people in this country are being treated i to am affected by the bedroom tax but feel in a better posistion as i have the abillity to work if and when i can find a job i am fearfull that i to could lose my home .but you are doing a wonderful job looking after your disabled daughter and you should have help and support not punishment we have not commited a crime by having a spare room as i am starting to feel like a criminal and being persecuted for being poor which i did not chose i am just a victim of a crisis that happened to me all i can say is your not on your own i no that wont pay the bills i am trying hard to find a loophole in the bedroom tax at the moment i have asked to exercise my right to appeal against against the deduction to my benefit as that is what it is as the law works out what we have to live on and we have a right to appeal against a deduction to benefits wether that is the loophole i do not no as i cant get a answer and have requested a letter to make a appeal against the deduction if i hear back with any news i wil let you no we are going on a march against this bedroom tax on saturday the 16th all i can say is people are on your side its the goverment that is not kind regards maureen

      • Your are so right … The government just give us the amount we can live on so how are we ment to pay the bedroom tax if we don’t get enough money to live on .. I’ve just had my gas and electric bill and in shock don’t know where I’m going to get money for to pay that and a bedroom tax .. I have never been in debt but I now know that I will be in areas with bedroom tax and will loose my daughters home as I can’t afford it also will need to just give up her home altogether and don’t have a clue where to go … Can’t believe the government is doing this to us as we are full time carers and don’t get a break … Hope your protest all goes well

  6. Hi could you clarify your sentence please ‘Some parents may even have to put their child into care’. That sounds very scary….

    • Either I would need to go homeless and put my disabled daughter into care . I just can’t afford bedroom tax I just about make ends meet and I don’t go nights out or drink or smoke as I can’t afford it and I need to be here for my daughter as she can do nothing for herself only time I get is when she at school … She also in and out hospital . I got letter this morning saying I’ve to pay the bedroom tax . Prime minister telling lies as I heard him say on Wednesday that page rents with disabled children , people that need round the clock care and pensioners will be exempt but can’t be true as I received the letter this morning to pay the bedroom tax

    • Julie

      This was a guest article from CPAG, so we can’t clarify what they mean. However, what I would say is that if the property is not affordable and there is nowhere else suitable to move to, the immediate option is an application as homeless to the council. My view is that this should not mean that the person would be considered to be intentionally homeless, but it is possible the Council initially decide that.

      If the Council refuse a homeless duty – which I think they should not, but may still happen – and a review and appeal fail, then social services will owe a duty to the children. This should not mean that the children and the parent are separated, but may, exceptionally, lead to that, so social services only house the children. Anyone finding themselves even approaching this situation should find a legal aid solicitor as soon as possible.

  7. Eliabeth – if your local authority does not give you a Discretionary Housing Payment to make up the bedroom tax I would be astonished – it is difficult to think of a more compelling case for a DHP. Make sure they know all about your circumstances – that’s the Housing benefit people, don’t assume they automatically have access to Childrens Services info, give the info to HB yourself and ask for a DHP.

    Leaving aside for a moment the uncertainty over what councils can do as a result of the Burnip case, I would caution that your circumstances don’t match those in the Burnip case because your child is not sharing a bedroom with a sibling. The issue in your case is that you need extra space for other associated needs and the Regs don’t allow for it.

    Apparently IDS was on the radio this morning again saying the bedroom tax doesn’t apply to severely disabled children, to which I say “if you really believe that then drop your appeal in Burnip! And amend the regs to make it clear!”

    • I got housing benefit letter yesterday and they have deducted bed room tax so I need to make up £55.78 each month .. I heard prime minister say 4 times on sky news that parents with disabled children , people that need 24 around clock care and pensioners are exempt … I can’t be exempt as my benefit has now been deducted ….

  8. They are probably right that you are not exempt, that is why you need a DHP – they won’t give it without being asked but as I said above if they refuse I would be amazed. You do need to apply specifically for a DHP though – a letter saying what you have said on this thread should do the trick

    • I was in London last week and handed in a letter to Downing Street regarding the bed room tax … And I also emailed the prime minister asking about the bed room tax … I asked why he said parents with disabled children to be exempt and yet I was still having to pay the bedroom tax … If I was to go out and work all day then come home and look after my daughter I would not have a break … My daughter cannot do anything for her self at all not even able to brush her hair as her wrists are twisted due to her Cerabral Palsy and her condition has got worse over the years also she has 180 degree scoliosis to her spine she in and out of hospital for operations and I stay at the hospital I stay with her as she cannot speak she also cannot eat solids and is fed through a tube and gets over night feeding … If a carer was to come in and so the job I do it would cost the government thousands .. Carers are saving the government money .. I am hoping that I get a response from Downing Street but in the other hand I really don’t think the prime minister is interested in us carers as it not his problem

  9. “Under the previous Government, housing benefit almost doubled in 10 years to £20billion, with households living in homes that are too big for them, whilst there are 2 million households in England on waiting lists, and 250,000 families living in over-crowded accommodation”
    with households living in homes that are too big for them
    This is part of the IDS Written Ministerial Statement made Tuesday 12 March 2013.
    If he hasn’t said it elsewhere maybe that part may help irrational challenge to cases where home not too big eg because of bedroom size being too small for 2

  10. Pingback: Birmingham Law Centre Blog » Blog Archive » PM alters Bedroom Tax as DWP drop appeal to Supreme Court in Burnip, Trengove and Gorry

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