Bedroom Tax Concessions

The Government is giving councils the power to exempt severely disabled children from changes to housing benefit, rather than subsidise income through a hardship fund.

Speaking to ITV News, Work and Pensions Secretary Iain Duncan Smith denied the move amounts to a u-turn, and insists his department is just clarifying guidance. There is no more money to pay for it, and the changes will come out of the department’s budget.

IDS tells ITV News: ‘No climbdown’ over bedroom tax -
http://www.itv.com/news/update/2013-03-12/severely-disabled-children-exempt-from-benefit-changes/

Where I come from, IDS would be described as ‘cheeky ‘ard-faced’ for claiming that this is ‘clarifying guidance’. Others would call it ‘chutzpah’. Others still would call it b- [that’s enough - ed]

Now we have the statement it appears that the magic solution for disabled children is….DHPs. Or is he going to come out with yet more ‘clarification’? Inside Housing’s comment is good:

12 March 2013

Responding to the news that foster carers will be given some protection and armed forces will be exempt from the bedroom tax, National Housing Federation chief executive David Orr says:

“Exempting armed forces personnel and giving foster carers some protection from the bedroom tax is not enough. The bedroom tax is still an unfair and perverse tax which will hit hundreds of thousands of other vulnerable people living in social housing around the country. They are being penalised for a weak housing policy that for years has failed to build enough affordable homes and reduce the housing benefit bill.

“The Department of Work and Pensions’ continued claim that Discretionary Housing Payments (DHP) will protect all of the most vulnerable is simply not true. Even if DHP was divided equally only among those receiving Disability Living Allowance, they would receive only £2.51 a week, compared to an average loss of £14 per week. It doesn’t add up.

“Today’s concession is an admission that the bedroom tax is ill-thought and incompetent. The Government must repeal this ill-conceived policy, but at the very least right now it must exempt disabled and other vulnerable people from these cuts.”

http://www.housing.org.uk/media/news/response_to_dwp_bedroom_tax.aspx

Claimant states that extra bedroom needed on Burnip grounds. LA suspends extra HB pending outcome of Supreme Court hearing but pays DHP in the meantime. It subsequently becomes apparent that Burnip correctly decided and claimant entitled to the suspended HB. Does this get set off against DHPs already paid?

SamW - 12 March 2013 02:54 PM

Does this get set off against DHPs already paid?

No it can’t but would advise claimant it would be better to offset it, they will have to agree to return the HB payment for the same period, or else they end up with a DHP debt. Saying that, in some circumstances, a write off could be considered for the DHP overpayment.

Just to add, I’m not sure if we are all aware, the DWP have conceded the Burnip case and dropped the appeal to the Supreme court. See DWP circular U2/2013.

So that’s what Duncan-Smith was on about when he muttered about ‘the court case’. Thank you.

chacha - 12 March 2013 04:32 PM

SamW - 12 March 2013 02:54 PM

Does this get set off against DHPs already paid?

Just to add, I’m not sure if we are all aware, the DWP have conceded the Burnip case and dropped the appeal to the Supreme court. See DWP circular U2/2013.

Do you have a link to the circular? It’s not yet up on the DWP website. Good news!

I think this is what you are looking for.

What a shambles, DWP is so clueless.  Burnip is both narrower and wider than the U-bulletin makes out so it is wrong in two opposite ways at the same time!

Wider:  I would read Burnip as authority for the proposition that anyone who finds the size criteria in the Regs do not meet reasonable disability needs could make out a human rights case.  The particular circumstances in Burnip involved two adults requiring overnight care and one case of disabled siblings unable to share a bedroom; however others with different but equally compelling reasons for needing more bedrooms than the size criteria allow would have stood just as much chance of success.  So I think DWP are wrong to read the particular facts of the Gorry family as if they were set out in a statute.

Narrower:  However, the Burnip decision does not allow local authorities to allow extra rooms in the HB award.  DWP is trying to shift responsibility onto LAs, localising the blame for disappointing decisions, when it is the Secretary of State’s responsibility to amend the Regs as required by the Court.  Here is the key extract from Burnip:

“It follows from what I have said that (1) the appellants have established a prima facie case of discrimination pursuant to Article 14 and (2) for the reasons set out in the judgment of Henderson J, the Secretary of State has failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria. I would therefore allow the appeals from the Upper Tribunal. I would make a declaration to that effect. The question then arises as to whether any further relief is appropriate. In so far as the Burnip and Trengove cases are concerned, the Regulations have been amended as from 1 April 2011. Mr Eicke submits that we should go no further than to grant declaratory relief, leaving it to the Secretary of State as to how to deal with the rectification of the discrimination in all three cases. Such an approach accords with the course taken in Francis v Secretary of State for Work and Pensions [2006] 1 WLR 3202. I consider it particularly appropriate in a case in which the Secretary of State is responsible for the Regulations but local authorities (who are respondents to these appeals but have taken no part in them) are responsible for the provision of HB to claimants.”

The Francis case cited in the above extract is even clearer:

“That leaves the question of the appropriate remedy. Miss Lieven submitted that this court should perform its interpretive duty under s.3(1) Human Rights Act 1998 to read and give effect to the Regulations in a way which is compatible with the Conventions rights so far as possible, and she reminded us of the remarks of Lord Steyn in R v A (No. 2) [2002] 1 AC 45 at paras. 44 and 45 which make clear how strong is that duty. However, I do not think that it is possible to construe Reg. 5(1)(b) in a way which includes a person given parental responsibility by a residence order for a child not exceeding the age of twelve months at the date of the claim. That would not be the interpretation but the rewriting of Reg.5(1)(b) to include a new category. Miss Lieven submitted in the alternative that the court should grant a declaration that Ms Francis was entitled to Maternity Grant. Mr Kolinsky accepted that that was the appropriate remedy. I agree. That would allow the Secretary of State to decide how best to reformulate the Regulations so as to exclude the discrimination identified in the present case. I would ask counsel to attempt to agree the appropriate declaration”

It seems to me the Court in Burnip is saying: “the Regs are incompatible with the Convention, we cannot interpret them in a compatible way under s3 of the Act so all we can do is make a declaration under s4 and call on the Secretary of State to amend the Regulations”.  And the Secretary of State’s reaction was first to appeal and then, after the PM dropped him in it last week by blurting out four times in PMQs that disabled children are exempt, to say that the Regs are absolutely fine as they are, however LAs should ignore them and make up different Regs.  Absolutely ridiculous position to adopt and shameless buck passing.  The Court has ordered the Regs to be amended, so amend them for heavens sake.