Earlier this month the UK Supreme Court gave judgement in a series of cases challenging the cap on housing benefit introduced by the Secretary of State under Regulations B13 of the Housing Benefit Regulations 2006 (SI 2006/2013) (the ‘Regulations’). The Court of Appeal found that while the Regulations had a discriminatory effect on some people with disabilities, the discrimination was justified. On appeal the Supreme Court held in cases involving economic and social policy, such as the one before it, the correct test to apply is whether the discrimination is ‘manifestly without reasonable foundation’. Applying this test the Supreme Court found in favour of some of the claimants but not others.
By way of background restrictions to housing benefits known as the ‘spare bedroom subsidy’ came into effect in April 2013. The cap is determined according to a number of factors, including whether the number of bedrooms in the home exceeds the number the claimant is entitled to. The number of bedrooms a claimant is entitled to depends on the number of occupants, their ages and sexes and whether they are a couple. A claimant is entitled to an additional bedroom in some specific situations relating to disability need. Each of the claimants in the current proceedings had seen their housing benefit reduced following the introduction of the Regulations. Proceedings were brought arguing that the application of the Regulations resulted in a violation of article 14 of the ECHR, in conjunction with the right to family life under article 8 and/or property under article 1 of the First Protocol. It was also argued by the claimants that there had been a breach by the Secretary of State of the Public Sector Equality Duty under the Equality Act 2010 which obliges public sector authorities to advance equality of opportunity between persons who share protected characteristics and those that do not.
Each case was assessed on its own individual merits. Two families were successful in their appeal before the Supreme Court, while the other five appeals were rejected.
The Court upheld the claims of Paul and Susan Rutherford and Jacqueline Carmichael. The Rutherfords care for their severely disabled grandson, Warren, in a specially adapted bungalow. Under health and safety regulations they are required to supply a spare bedroom for Warren’s overnight carers. Downsizing their accommodation would have resulted in the loss of an integral part of their grandsons care. Jacqueline Carmichael and her husband, Jayson, argued that they cannot share a bedroom due to Jacqueline’s disability.
The Court heard that the Regulations allow claimants to have an additional bedroom where children cannot share a bedroom because of disabilities. The Court found no reason why this should not also be extended to adults. The court surmised that ‘there appears to be no reason to distinguish between adult partners who cannot share a bedroom because of disability and children who cannot do so because of disability; or between adults and children in need of an overnight carer. The decisions in relation to Mrs Carmichael and the Rutherfords were therefore manifestly without reason ‘.
In relation to the claimants who had their appeals dismissed the Court stated that ‘their need for an additional bedroom is not connected, or not directly connected, to their/their family member’s disability. Therefore, whilst there may be good reasons for them to receive state benefits to cover the full rent, it is not unreasonable for their claims to be considered on an individual basis’. As such it would be possible to be assessed for a separate Discretionary Housing Payment.
In her dissenting judgement Lady Hale found that there had been a breach of the Public Sector Equality Duty by the Secretary of State, with regards one of the claimants referred to as ‘A’. That claimant a domestic violence survivor had been living in her home for a number of years which had been adapted under the sanctuary scheme. A had an additional bedroom as no two bedroom properties were available when she moved. Lady Hale found the State has a positive obligation to provide effective protection for victims of domestic violence. A failure to do so constitutes discrimination – a reduction in A’s housing benefit put at risk her ability to stay at the sanctuary scheme. The uncertainty of a Discretionary Housing Payment would not be sufficient protection for A. It was found that the Public Sector Duty had been breached because no assessment of the impact of the Regulations on victims of gender based violence has been carried out.
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