I haven’t written about the Affordable Homes Bill, partly because time, and partly because I was deeply cynical about the Bill’s prospects of getting anywhere pre-election, and the omissions it contained. (In fact for many of the same reasons contained in this rant).
But with great gratitude, we have a guest post by Dr Joe Wills, lecturer at the School of Law, University of Leicester, and very good it is.
The Affordable Homes Bill: A Partial Solution
On Friday 5th September the Affordable Homes Bill was approved at second reading in the House of Commons by 306 votes to 231. The Private Members Bill, introduced by Liberal Democrat MP Andrew George, may bring about major changes to the Coalition Government’s ‘bedroom tax’ policy if enacted into law.
Since April 2013, tenants in social housing who are deemed to have excess bedrooms for their needs have seen their housing benefit cut by up to 25%. The policy has been widely criticised for causing financial hardship, uncertainty and stress for many affected households, particularly for persons with disabilities. If Mr George’s bill were passed into law it would mean that tenants who are not found suitable smaller accommodation would be exempt from the reduction, as would disabled adults who need their own bedroom or who have adapted homes.
The Proposed Reforms
The regulations governing the ‘bedroom tax’ have meant that working age social housing tenants in receipt of housing benefit (HB) have experienced a reduction by between 14 and 25% in their benefit entitlement where their housing is deemed too large for their needs. The policy permits one bedroom for each person or couple living as part of the household and also expects two children of the same gender or two children under 10 regardless of gender to share a bedroom. The regulations also allow one additional bedroom where the claimant or the claimant’s partner requires an overnight carer or for a disabled child who cannot share a bedroom with a sibling as a result of disability.
The proposed bill would provide further exemptions from HB reductions in three instances. Firstly, it would exempt households that can produce evidence to a local authority that the dwelling has been adapted to meet the disability need of a member of the household and that the cost of the adaptation is not less than an amount that will be set by future regulations made by the Secretary of State.
Secondly, the bill would permit an additional bedroom for the HB claimant, their partner or a close relative if they are in receipt of any component of Disability Living Allowance or of Personal Independence Payment and the relevant authority is satisfied that they are not reasonably able to share a bedroom with their partner or sibling. This would extend the exemption for disabled children to adults as well.
Finally, households will be exempted from the reduction in housing benefits where ‘neither the claimant’s landlord nor a local authority, where it is not the landlord, has made a reasonable offer of alternative accommodation’.
This bill, as it is currently drafted, undoubtedly goes some way to addressing concerns raised about the adverse impact of the bedroom tax. Excluding adapted accommodation from benefit reduction is a step forward. Many persons with disabilities have significantly adapted accommodation, for example ramps for wheelchair access, internal lifts, ceiling hoists and specially adapted baths and toilets. It is estimated that approximately 100,000 households affected by the bedroom tax have been adapted or were purpose built to accommodate the tenant’s needs arising from disability. Currently such households may apply for discretionary housing payments (DHPs) to make up the shortfall in the HB but as the House of Commons Work and Pensions Committee has noted, the lack of detailed guidance for the award of DHPs and their short-term and temporary nature has caused a great deal of stress and uncertainty for affected households that have to apply and re-apply for them.
Extending the current provision of an extra bedroom for children who cannot share as a result of their disability to adults in couples who cannot share for the same reason is also to be welcomed. It is fragrantly discriminatory to penalise persons with disabilities because they cannot share a room with their partner due to needing a separate specialist bed, space for careers and/or room to manoeuvre a wheelchair for example. This category of disabled HB claimants are a small and readily definable group and it is unlikely that exempting them from the deduction would give rise to any significant financial cost or administrative difficulties. In contrast, impelling such claimants to go through the cumbersome task of repeated DHP applications whilst relying upon the vagaries of temporary and discretionary pay-outs seems needlessly cruel and arbitrary.
Lastly, the requirement that claimants must be made a ‘reasonable offer of alternative accommodation’ before their HB is cut is potentially the most far-reaching reform proposal. One of the main criticisms levelled at the bedroom tax is that its purported aim of encouraging HB claimants to downsize is flawed due to the gap between the supply and demand for smaller social housing that prevents households from downsizing even if they wished to. Indeed, recent figures obtained by a freedom of information request by the Labour party revealed that up to 96% of those affected by the policy were trapped in their larger homes because there is nowhere smaller within the local social housing stock to take them. If these projections are correct then the proposed requirement of reasonable alternative accommodation could for all practical purposes signify the beginning of the end of the bedroom tax.
In spite of these welcome reform proposals to this deeply unpopular policy, the Bill as it currently stands has a number of shortcomings. Firstly, the additional exemptions do not address all of the circumstances that give rise to unjust and discriminatory outcomes. For example, they do not cover households that need additional rooms for overnight carers for disabled children. Nor do they cover households that require a spare room to store essential medical equipment such as wheel chairs, oxygen tanks and so on. The new exemptions also fail to address the negative impact of the policy on single parents who do not live full time with their children. These parents may wish to have a ‘spare’ room to allow their children to stay when they visit them, but under the current policy they are put in a catch 22 situation of having to relocate to one-bedroom properties, and therefore not be able to properly accommodate their children, or be placed in extreme hardship possibly resulting in their inability to afford the rent.
Another concern with the bill is that, in relation to the first two exemptions, it places the burden upon the HB claimant to demonstrate to their local authority that they should be exempted. In the first place, this will depend upon these claimants being made aware that they are entitled to apply for these exemptions. Beyond that, the process of making the application may be long and cumbersome. For example, in relation to the adapted homes exemption, the HB claimant must establish their case by providing ‘the relevant authority with… certificates, documents, information or evidence’ and this claim will only be accepted if ‘the cost of the adaptation is not less than an amount prescribed in regulations made by the Secretary of State’. The calculation of adaptation costs will not always be a straightforward matter and will in some instances be likely to give rise to protracted claim, rejection and appeal processes.
Finally, the bill is likely to give rise to a number of complex legal issues: what forms of adaptation will be taken into account? When will an individual not ‘reasonably’ be able to share a bedroom due to disability? And most significantly: what will constitute ‘a reasonable offer of alternative accommodation’? In relation to the latter, the bill states that this may be defined by subsequent Regulations. Given the enormous variation in people’s housing needs, community and family ties and emotional attachment to their locality, legal guidelines that attempt to clarify the meaning of ‘a reasonable offer of alternative accommodation’ will no doubt trigger further litigation and judicial review claims.
The Affordable Homes Bill is still in the early stages of its legislative drafting. If it enters into law, it will likely be significantly amended. As it currently stands, the additional proposed exemptions from the bedroom tax are to be welcomed for their potential to shield affected individuals from the adverse impact of the policy. However, the exemptions do not address all the situations that currently give rise to discriminatory and unjust outcomes and are also likely to give rise to protracted and costly administrative and legal disputes in some instances. It may simply be easier and preferable to abolish the bedroom tax altogether.
Dr Joe Wills
University of Leicester, School of Law