Forum Home → Discussion → Housing costs → Thread
bedroom tax JR fails
BBC news saying JR was not successful - no details yet
Bizarre and alarming conclusion by judges to the effect that local authorities have sufficient flexibility to deal with issue via discretionary housing payments (presumably those that have any money left after dealing with the impact of the benefit cap etc etc.
Discretionary Housing Payment fund is being bolstered by an extra £35 million apparently, but “the extra funding was not prompted by the court action.”
very very disappointing news.
More in The Guardian.
http://www.theguardian.com/society/2013/jul/30/bedroom-tax-legal-high-court
A useful summary here.
http://www.hmbsolicitors.co.uk/news/category/item/index.cfm?asset_id=1528
“Lawyers representing adults and children with disabilities who are challenging the Government’s ‘Bedroom Tax’ have vowed to fight on after today losing part of their High Court battle to halt the controversial new housing benefit regulations that came into force on 1st April this year.
Since 1 April 2013, persons deemed to have 1 spare bedroom have had their housing benefit reduced by 14% and persons deemed to have 2, or more, spare bedrooms have had their housing benefit reduced by 25%.
The claimants all argued that these new Housing Benefit rules discriminate against people with disabilities. The Court accepted that they are discriminatory, but decided that the discrimination was justified and therefore lawful – apart from in cases of disabled children unable to share a bedroom because of their disabilities.”
And so…...
The Government must now make Regulations “very speedily” to show that there should be “no deduction of housing benefit where an extra bedroom is required for children who are unable to share because of their disabilities.”
This is now looking like a colossal mess.
I do hope this isn’t the end of it. A shameful decision in my opinion.
Would anyone care to venture an opinion on where this leaves adult couples unable to share a room due to disability?
My view is that I find it hard to see that a meaningful distinction can be drawn between pairs of children and adult couples in that situation. Since Burnip/Gorry is a judgment of a higher court, and expressly held that a) the unfavourable treatment is not justified, and b) DHPs don’t remove the discrimination, I am tempted to continue arguing that Gorry is good law and covers adult couples unable to share on the individual facts, albeit that the High Court has declined to quash the regulations entirely.
case report:
http://www.bailii.org/ew/cases/EWHC/QB/2013/2213.html
and the SofS was well told off for not making new regulations following burnip/gorry.
notice also that the facts of the various cases are at the end in a useful annexe, which I anticipate can be used to beat government metaphorically over the head with…
So one day you’re a child of 17 and need an extra room and it’s ok. The next day you’re 18 and an extra room its not ok - This echos the Benefit Cap, non dependent rules re DLA child/adult. - Obviously in both cases, at the stroke of midnight miracles happen, hotly pursued by ****** disguised as the Benefits Fairy
****** insert MP of your choice
RMR: the problem of a workable definition of “child” for these purposes is already addressed in the size criteria regulations - once you reach 16 you don’t have to share so it is only children under 16 who need to be catered for in any amending Regs.
I am not surprised by this decision at all. The applicants set the bar incredibly high for themselves by bringing a very wide class action without any clear definition of the precise characteristics in respect of which discrimination was alleged, as the court observes at para 88. Moreover by approaching this as a JR, the objective of the applicants was to have the bedroom tax scrapped in its entirety, not just for disabled people but for everyone: the only useful remedy they could have expected from the court would have been the striking down of the 2012 amendment regs. It was never going to happen. An appeal would be a waste of time I think.
I was interested to see the stand that Birmingham Council took on the nonsense that is Bulletin U2/2013 - that must have taken some courage. The court upholds the Council’s position that neither the Burnip case nor the subsequent DWP guidance allows an LA to pay additional benefit in cases where there are disabled children: the Secretary of State has not been allowed to wriggle out of his responsibility to amend the Regs. Hopefully the Regs will be retrospective to 1/4/13 so that depleted DHP budgets can be replenished.
There is one slightly positive outcome. As the court implies at para 88, individual cases brought by people with more sharply defined characteristics might stand a better chance of success, but even then remedy is the problem - the court is not going to strike down the bedroom tax lock stock and barrell because it produces rough justice in certain cases. That is a harsh lesson for anyone who thinks the Human Rights convention is a magic wand that can make things fair - if there is anything positive to take away from this it is that representatives will now understand that if they are going to run a human rights argument in an HB appeal they must think about the remedy. There are some bedroom tax/LHA scenarios in which an interpretative remedy under s3 of the Human Rights Act will work. For example, a disabled only child (so no question of sharing with a sibling) who requires overnight care: a little bit of flexible reading of Reg B13 or 13D would cover that.
Just a thought.
My understanding is that certain adapted properties are exempt from Right To Buy, as they are ....“adapted”....
So what is this big hang up about not treating these properies, at the very least, as exempt from bedroom tax.
It is not difficult, is it?
......
I was interested to see the stand that Birmingham Council took on the nonsense that is Bulletin U2/2013 - that must have taken some courage. The court upholds the Council’s position that neither the Burnip case nor the subsequent DWP guidance allows an LA to pay additional benefit in cases where there are disabled children: the Secretary of State has not been allowed to wriggle out of his responsibility to amend the Regs. Hopefully the Regs will be retrospective to 1/4/13 so that depleted DHP budgets can be replenished.
I am not sure that is right. In the Gorry case then the Court ordered the LA to pay Housing Benefit (eg normal HB not a DHP) to the Gorry family- you need to see the order to work that out as it is not apparent from the judgment. The Court of Appeal (like the UT and the FtT) was standing in shoes of LA so what they do then the LA can do.
I note that is the continuing view of the DWP in the recent memo.
The Court in the bedroom tax JR is hopelessly confused (in para 91) in suggesting that the earlier DWP memo was about DHPs- it was not. The Court is also somewhat confused about the status of the appeal in Gorry - that was a statutory appeal. As such the Court in Gorry were not in a position to order new regulations be made- they simply had to interpret and apply the regulations in the light of the HRA. This they did and ordered an extra bedroom.
It is confusing as both the High Court and the CA have been a bit muddled about their powers when hearing different types of appeals.
However, I think the easiest way to look at is in saying simply that the order of the Court in Gorry was to pay HB (not a DHP) in accordance with its judgment. That remains the highest authority on the issue.
Been on holiday so only just picked this up. Martin, is it possible to put a copy of the order on Rightsnet? I’d be very interested to see it because the question of remedy in human rights-based appeals is absolutely crucial. Considering that the judgement in Burnip describes itself as declaratory relief and name-checks the earlier Francis case which is even clearer on declaration versus interpretation, I cannot see how the judgement alone is authority for payment of additional HB. Indeed I always thought that declaratory relief in general - not just under the HR Act - was a form of decision that doesn’t order anyone to do anything, it’s just the court saying how things are, are not, should be or should not be. But if the Burnip order says different it will no doubt shed new light on it.