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Judges rule 'bedroom tax' unlawful for domestic violence victims, disabled children

The Government has failed to justify the discriminatory impact of the so-called ‘bedroom tax’ on victims of domestic violence and disabled children, the Court of Appeal has ruled.

The Department of Work and Pensions announced that it would take the dispute over lawfulness of the size criteria for housing benefit in these cases to the Supreme Court.

The Court of Appeal heard two appeals together and its judgment can be found here.

The first case was brought by ‘A’ over the impact of the ‘bedroom tax’ – called the 'spare room subsidy' – on women living in ‘Sanctuary Scheme’ homes.

A is a victim of rape, assault, harassment and stalking. She and her 11-year-old son live in a three-bedroom property specially adapted for them by the police pursuant to a Sanctuary Scheme.

However, A and her son were only entitled under the size criteria (Regulation B13 which was introduced into the Housing Benefit Regulations 2006) to housing benefit for a two-bedroom property. This had the effect of reducing A's benefit by 14%.

A’s legal team argued that the DWP had failed to take into account the disproportionate impact of the ‘bedroom tax’ upon victims of domestic violence, who are overwhelmingly women, and in particular those in Sanctuary Scheme homes.

Rebekah Carrier, the Hopkin Murray Beskine solicitor who acted for A, said: “[Our client] is delighted that the Court of Appeal has recognised the impact that the bedroom tax is having on her and others like her.

“She very much hopes that the Secretary of State will now see sense and agree to change the rules to protect the small but extremely vulnerable class of women and children who need the safety of a sanctuary scheme whilst they try to rebuild their lives after surviving domestic violence.”

The second case was brought by Paul and Susan Rutherford and their severely disabled grandson Warren.

The Rutherfords care for Warren in a specially-adapted three bedroom bungalow in Pembrokeshire. Warren has a rare genetic disorder, Potokoi-Shaffer Syndrome, and is unable to walk, talk or feed himself and requires 24-hour care.

The Court of Appeal found that the ‘bedroom tax’ discriminated against disabled children in breach of the Human Rights Act.

The Rutherfords, who have disabilities themselves, said they needed a third bedroom for their own carers to stay in overnight and for storing disability equipment for Warren.

The relevant regulations allow for an additional bedroom if a disabled adult requires overnight care but not for a disabled child in the same situation.

The Court of Appeal concluded that this unlawfully discriminated against disabled children and could not be justified.

The Rutherfords have been receiving discretionary housing payments [DHPs]  from their local authority to cover the shortfall in rent but the Court of Appeal found this policy was not adequate as there was no guarantee it would continue to be available to them in the future.

The Lord Chief Justice, Lord Thomas, said: “On the evidence before the court justifying the different treatment in Regulation B13 of accommodation needed for carers of disabled adults and accommodation needed for carers of disabled children, the Secretary of State did not address how the distinction could be justified by reference to the best interests of a child as a primary consideration. He justified the distinction between making provision for a bedroom for disabled children but not for disabled adults by reference to the best interests of the child and explained the different treatment on that basis.

“On that basis, it seems to us very difficult to justify the treatment within the same regulation of carers for disabled children and disabled adults, where precisely the opposite result is achieved; provision for the carers of disabled adults but not for the carers of disabled children. In this context, moreover, the argument based on the promotion of independent living for adults, whereas children can be cared for within the family, has little purchase.”

The LCJ added: “We accept that DHPs were intended to provide the same sum of money, but we are not persuaded that this justifies the different treatment of children and adults in respect of the same essential need within the same Regulation, as neither the Regulation nor the policy behind the Regulations addressed the best interests of the child as a primary consideration.

“Moreover, the evidence of the two charities…..shows that the Secretary of State cannot in the case of the need for accommodation for the carers of disabled children demonstrate that DHPs will always be available. Furthermore it is regrettable that the position of carers for disabled children is not expressly dealt with in the Guidance which addresses the position only where there is adapted accommodation.”

Mike Spencer, solicitor at the Child Poverty Action Group, who acts for the Rutherfords, said: “‘We are delighted that disabled children will finally be entitled to the same treatment as disabled adults. It is absurd to have a situation where children like Warren might have to go into residential care at vast cost to the taxpayer because their families cannot pay for the housing they need. Instead of putting this family through the ordeal of a further appeal, the Government should now think seriously about amending the regulations to protect severely disabled children.”

The Court of Appeal granted permission to the Secretary of State to appeal to the Supreme Court against the finding that the discrimination caused by the bedroom tax breaks the law, and to ‘A’ to appeal against the finding that the needs of victims of domestic violence were not properly considered when formulating the policy.

It is expected that, if the DWP chooses to appeal to the Supreme Court, the two cases will be heard together with another appeal concerning the bedroom tax. The latter is due to be heard in March this year.