As the final months of 2019 marked the end of the decade, we also entered the final stages in the various legal challenges to the policy commonly referred to as “bedroom tax”.
To recap briefly, “bedroom tax” is a name for changes made by the Welfare Reform Act 2012 to the way housing benefit is calculated, specifically by reducing the amount paid to claimants of working age who live in social housing and are thought to have a “spare” bedroom.
Following its introduction, campaign groups were quick to point out that such reductions would disadvantage claimants who needed extra living space for legitimate and unavoidable reasons.
These included claimants such as Jacqueline Carmichael, whose disability meant that she needed an extra room for a hospital-style bed. She argued that the bedroom tax was discriminatory. Her legal challenge and many like it have been heard by various courts and tribunals up and down the land, culminating in the authoritative decisions referenced below.
These cases concerned English claimants. The position in Scotland is slightly different, the Scottish Government having committed to making up any “bedroom tax” deductions through discretionary housing payments.
This European Court of Human Rights (ECtHR) decision related to two joined cases. The first (A) concerned a woman who was recognised as facing “extreme risk of physical violence” from an ex-partner who had previously attacked and raped her. As a result, she had been given a specially-adapted house through a sanctuary scheme. It had a “panic room” installed in the attic. This was technically a “spare room” in terms of the rules.
The reduction in her housing benefit caused by “bedroom tax” had previously led to her being threatened with eviction, although more recently her housing costs were being topped up with discretionary housing payments (DHPs).
Her case was heard by the ECtHR after the UK Supreme Court held that the UK Government had provided adequate justification for the discriminatory effects of the policy, chiefly the mitigating effects of discretionary housing payments.
The ECtHR took a different view. Again focusing on the UK Government’s justification for the discriminatory effect of the rules, it cited the disadvantages of DHPs, such as their being discretionary, cash-limited and less certain, offering different and less attractive routes of judicial challenge and encouraging short term, temporary and conditional awards. It concluded that: “For a woman in a sanctuary scheme to have to endure all those difficulties and uncertainties on top of the constant fear and anxiety in which she lives cannot be justified.”
But the decision is limited in its scope, and may not assist bedroom tax challenges in circumstances significantly different to those of this particular claimant.
This is highlighted by the failure of the second case (JD), where the tenant argued that she needed the “spare” room in her adapted home to meet the needs of her severely disabled adult daughter. In these circumstances DHPs were found to justify the discrimination caused.
Acknowledging that bedroom tax can ultimately force vulnerable people to move house against their wishes, the court explained: Whilst it has been acknowledged that any move would be extremely disruptive and highly undesirable for the first applicant [A, discussed above], it would not be in fundamental opposition to the recognised needs of disabled persons in specially adapted accommodation but without a medical need for an “extra” bedroom to move into smaller, appropriately adapted accommodation.
Jacqueline Carmichael’s case was successful in the Supreme Court in 2016. That decision (and the amended regulations of March 2017) established that no reduction in housing benefit should be applied where there was clear medical need for an additional bedroom.
However, there was still a question as to whether these changes had retrospective effect, so as to enable backdated awards for the many claimants with Carmichael-type appeals which had been on hold pending that decision.
In addressing that question in this recent case, the Supreme Court had to consider what powers local authorities and tribunals had to interpret regulations in a way that meant they would comply with human rights.
The Secretary of State for Work and Pensions (SSWP) argued that the tribunal’s interpretive powers were limited to making only minor changes to regulations. As it was generally recognised that the regulations in question were so discriminatory as to need significant changes to avoid breaching disabled claimants’ human rights, this would mean that tribunals could do nothing to correct them.
The Supreme Court confirmed that all judicial decision-makers have a duty to read and interpret legislation so as to give effect to Convention rights. They held that this extends to disapplying or disregarding provisions which do not comply with human rights, for “there is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the Human Rights Act”.
In time, this may prove to be the most significant achievement of the many lawyers and activists involved in these cases as the implications and applications of this principle extend beyond the particular problems resulting from “bedroom tax”.
In January 2020, the UK Government sought to appeal the ECtHR’s decision in A to the Grand Chamber of the court, but the application has been refused and the judgment referred to in this article is now final.
Frank Jarvis is a senior solicitor at the Equality & Human Rights Commission