It appears that Barnet Council (via the Mayor’s casting vote) are determined to carry on with their plan to raise rents for council tenants, new and existing, to 80% of market rent or top of LHA rates, whichever is lowest.
We previously spent some time on why this was a bloody stupid idea, given the upper income limits that Barnet set on prospective new council (flexible) tenants before.
But this time, it struck me that they may be leaving themselves open to a different kind of challenge, at least for existing tenants.
Let us take an example to see why.
An existing secure tenant, a single mother with 3 kids, unemployed or working less than 16 hours per week. Benefit income of roughly £334.56 per week, not including housing benefit. Currently Housing Benefit would pay 100% of the rent on a 3 bed flat.
Average market rent on a three bed flat in Barnet – £1,660 per month or £383 per week. (Source)
Let us assume, generously, that Barnet Tory Councillor chair of housing committee, Tom Davey, is right when he says top LHA tends to be 65% of market rent. This would mean a council rent level for that 3 bed flat of £1078.78 per month or £248.95 per week.
So total benefit income and housing benefit for this tenant would have to be £583.51 per week. Except it can’t be, because the benefit cap restricts all benefit income including HB to £500 per week. So under Barnet’s proposals, our tenant would suddenly have a shortfall of £83.51 per week. This is unaffordable by any standards. (Based on current benefit cap of £26K. Of course any reduction to £23K in London as proposed by the Conservatives would make things worse).
To cut to the chase, Barnet’s proposals would make their homes unaffordable for some, perhaps many existing tenants who are subject to the benefit cap.
Now the Supreme Court in SG & Ors, R (on the application of) v Secretary of State for Work and Pensions (SSWP)  UKSC 16 accepted that:
The majority of non-working households with children are single parent households, and the vast majority of single parents are women (92% in 2011). A statistically higher number of women than men are therefore affected by the cap.
Granted, the Supreme Court, by the narrowest of margins, found the benefit cap discriminatory but justified. But that does not affect the next step in my argument.
It is clear that Barnet’s proposed rent increases for existing tenants would have a severely deleterious effect on some, perhaps many, households subject to the benefit cap. It is also clear – as accepted by the Supreme Court – that this would disproportionately affect women.
Now, the Public Sector Equality Duty requires Barnet to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out their activities.
If Barnet are proposing to carry out a rent increase, solely for the purpose of raising revenue (as they have stated), which disproportionately has a severe effect on existing tenants who are women, then prima facie there is a case that they have failed to have regard to their public sector equality duty in implementing a discriminatory policy.
- Have Barnet carried out an Equality Impact Assessment on this proposal?
If so, did the EIA address the issue of existing tenants subject to the benefit cap and the disproportionate effect on women?
Did Barnet obtain legal advice on the PSED as it applies to this policy (from their out-sourced legal department, as they have none of their own. (Let us not forget the report that found that “There is no-one who understands local government law in depth at Barnet. Barnet employs no lawyers.”).
If the answer to any of these questions is no, I think there might be a problem.. And a possible challenge to the lawfulness of the decision.
We can’t end without noting the utter gibberish pronounced by Tory councillor and housing committee chair, Tom Davey:
“No change is not an option. We cannot live in a world that is static.”
He added: “The less you work, the less you pay. It’s the ultimate incentive not to work. We are on the side of working families.”
Yes, he is proposing eviction and homelessness as an ‘incentive to work’, regardless of people’s situation.