Rule of law

If you take even a cursory glance at the circumstances of the 10 families involved in the legal challenge to the bedroom tax you’ll be left wondering how discretionary housing payments can possibly resolve their problems.

I read the High Court ruling painfully aware that I lack the legal expertise to interpret the finer points of the European Convention on Human Rights and Public Sector Equality Duty but with enough experience to know that what is lawful is not necessarily the same as what is fair.

The background to the case has already been covered in detail elsewhere. As Inside Housing reports, although the judges said that new measures must be introduced to protect disabled children who need their own room, housing groups were left bitterly disappointed by the dismissal of the other part of the judicial review and lawyers plan to appeal. Read this excellent blog by Kate Webb of Shelter or see statements by the solicitors involved here and here if you haven’t already for the background.

The Department for Work and Pensions (DWP) said that it was ‘pleased to learn that the court has found in our favour and agreed that we have fulfilled our equality duties to disabled people’ but also announced an extra £35 million of in-year discretionary housing payments (DHPs) for what it calls the ‘spare room subsidy’. Given that previous announcements on extra money and concessions have been made under political and media pressure, was this one made with one eye on the appeal (or even a different result)?

The case appeared to turn on whether the DWP’s strategy of relying on DHPs demonstrated that it had acted with sufficient regard to discrimination considerations and was adequate mitigation. The judges accepted the DWP’s argument that it was too difficult to come up with definitions of the degree of disability or adaptation of a property that would justify exemptions for adults. Unlike children who cannot share a bedroom by reason of their disabilities, there was no such ‘discrete group’ of adults. See this blog by Sue Marsh for an alternative take on that.

That leaves most of the 10 families involved in the case relying on discretionary housing payments that are being applied under policies that (as evidence presented by Shelter to the court showed) vary widely between different local authorities.

An annex to the ruling describes their circumstances in some detail:

• Jacqueline Carmichael, a woman with spina bifida who lives in a two-bed flat with her husband who is also her full-time carer. Their housing benefit has been reduced by 14 per cent but they have a six-month DHP to cover the shortfall.
• Richard Rourke, a disabled man in a wheelchair, lives in a three-bed bungalow with his step-daughter, who stays in university accommodation during the week in term time and over some weekends. He sleeps in one bedroom, his daughter in another and he uses the third to store equipment. He is appealing against a 25 per cut in his housing benefit and has requested a DHP that is not yet decided but is accruing arrears in the meantime.
• Melvyn Drage, a man with significant mental health problems and various physical difficulties, lives in a three-bed flat on his own. His conditions are exacerbated by stress and he is very anxious about having to move. He has a six-month DHP covering the shortfall on one bedroom but has rising rent arrears for the other.
• JD and her disabled adult daughter AD live in a specially adapted three-bed property. AD’s twin brother had lived in the house but has now moved out. AD has severe physical disabilities, learning disabilities and visual impairment and needs 24-hour care and is unable to move herself without assistance. After housing benefit was reduced by 14 per cent, JD appealed, but the local authority has deferred consideration of that until the outcome of this case. She has a six-month DHP until the end of September but has been told it is unlikely to continue after that.

The other six cases all involve children and presumably have some grounds for hope that they will be exempted from the bedroom tax given the judges’ comments. However, they too face varying degrees of uncertainty over their DHPs and are also part of the appeal because they still do not know whether they will be entitled to full housing benefit or when any new regulations will be made.

That brief summary reiterates just how much depends on what happens when the existing DHPs run out. This was also very much the case for residents of Aragon Housing Association who I blogged about last week. The crunch time for many people seems to be the end of September, which is when 26-week awards will run out. The ‘urgent appeal’ sought by the bedroom tax lawyers will I assume be heard before then.

But there will still be time to wonder at the logic of the judges who made today’s ruling, who appeared to argue that it was not their job to intervene at the level of principle or of detail. On the one hand, they said that lawyers for the 10 claimants ‘overlook or underestimate the strategic aims of the policy: not only to save public funds, but also to shift the place of social security support in society’.  On the other, they said that even though the equality impact assessment of the policy did not address the implications for disabled people, it was not the job of the court to ‘micro-manage’ the policy making process.