Summary of the following Supreme Court bedroom tax cases
R (on the application of Carmichael and Rourke) (formerly known as MA and others)
Background
These cases related to the cap on housing benefit introduced by the Secretary of State under Regulation B13 of the Housing Benefit Regulations 2006 (SI 2006/2013) (“Reg B13”), normally described as “the bedroom tax”.
The cap is determined according to a number of factors, including whether the number of bedrooms in the home exceeded 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 any are a couple. A claimant is entitled to an additional bedroom in some specific situations relating to disability need.
There is also a statutory scheme for enabling Discretionary Housing Payments (“DHPs”) to be made to individuals entitled to housing benefit who may require an extra room.
The claimants in these appeals all lived in social sector housing where the number of bedrooms exceeded the number to which they are entitled to under Reg B13 so their housing benefit had been capped accordingly.
They challenged the validity of Reg B13 as it applies to their individual circumstances on the basis that it -
- violates their right to non-discrimination under article 14 of the European Convention on Human Rights (“ECHR”), in conjunction with their right to family life under article 8 and/or property under article 1 of the First Protocol; and
- there had been a breach by the Secretary of State of the Public Sector Equality Duty (“PSED”) under the Equality Act 2010 (the “Equality Act”), which obliges public authorities to have due regard to the need to eliminate discrimination and advance equality of opportunity between persons who share protected characteristics and those that do not.
Issues related to all cases
The Supreme Court reasoned in the seven cases as follows.
The normal test in cases involving questions of economic and social policy is whether the discrimination is “manifestly without reasonable foundation”.
The question of how to deal with the impact of Reg B13 on individuals with disabilities was a clear example of a question of economic and social policy
With the housing benefit cap scheme being integral to the structure of the housing benefit scheme. The Court of Appeal was therefore correct to apply this test.
In respect of the application of the test, the Court of Appeal was correct that the Secretary of State’s decision to structure the housing benefit cap scheme as he did was reasonable.
However, some people with disabilities have a transparent medical need for an additional bedroom.
Reg B13 recognises this and entitles claimants to an additional bedroom in the case of children (but not adults) who cannot share a bedroom because of their disabilities or adults (but not children) in need of an overnight carer.
MA & Others -v- Secretary of State for Work and Pensions cases
R (on the application of Carmichael and Rourke) (formerly known as MA and others)
Mrs Carmichael, Mr Rourke, Mr Drage, JD and Mr Daly (“the MA claimants”), all either had disabilities or lived with family members who have disabilities. With the exception of the Daly case, all of the family members were adults.
Their cases were heard together in the Court of Appeal which accepted that Reg B13 had a discriminatory effect on some people with disabilities, but held that the discrimination was justified.
Therefore the MA claimants’ needs could be met as necessary through the DHP scheme based on individual assessments. The Court also found that there had been no breach of the PSED. The MA claimants challenge these decisions.
Judgement in MA cases
In respect of the MA claimants’ discrimination claims, the Supreme Court unanimously allowed the appeal of Mrs Carmichael but dismissed the other claimants’ appeals. The law has now been amended
The MA claimants’ appeals under the Equality Act were unanimously dismissed.
Reasons for the judgment in MA cases
Mrs Carmichael
Mrs Carmichael lives with her husband in a two-bedroom flat. She has spina bifida, hydrocephalus, double incontinence, inability to weight bear and recurring pressure sores. Her husband is her full time carer.
She needs a special bed with an electronic mattress. She also needs a wheelchair beside the bed. Her husband cannot share the same bed, and there needs to be adequate space for her husband and nurses to attend to her needs. There is not enough space for him to have a separate bed in the same room. Their rent was previously met in full by HB, but this was reduced by 14% under Reg B13. The shortfall is presently covered by an award of DHP.
Mrs Carmichael, is an adult who cannot share a room with her husband due to her disabilities. The Rutherfords required a regular overnight carer for their grandson with severe disabilities. 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 decision in relation to Mrs Carmichael was therefore manifestly without reason.
Other MA claimants
In relation to the other MA claimants, their need for an additional bedroom was 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 under the DHP scheme.
The MA claimants’ appeal, under the Equality Act, were therefore dismissed.
Richard Rourke is a widower and lives with his step-daughter in a three-bedroom bungalow. Both have disabilities. They each occupy one bedroom and the third is used to store equipment. His rent was met in full by HB, but this was reduced by 25% under Reg B13 on the basis that he is under occupying two bedrooms. (The fact that one bedroom is occupied on a part-time basis by his stepdaughter appears to have been overlooked, but that is not the basis of his legal challenge in these proceedings.)
Mervyn Drage lives on his own in a three-bedroom flat. He has significant mental health problems including obsessive compulsive disorder. He does not sleep in any of his bedrooms, which are all full of papers that he has accumulated. His rent used to be met in full by HB, but this was reduced by 25% under Reg B13.
JD lives with her adult daughter, AD, in a specially constructed three bedroom property. AD has cerebral palsy with quadriplegia, learning difficulties, double incontinence and she is registered blind. She requires 24 hour care and support. JD provides full time care for her. The rent was met by a combination of HB and other statutory benefits. The HB was reduced by 14% under Reg B13. The shortfall is presently covered by an award of DHP.
James Daly is the father of Rian, a child who has severe disabilities. Rian is a full time wheel chair user and has other health problems including incontinence. He requires help with all aspects of daily living. Rian’s parents are separated and they share his care. Rian stays with his father every weekend, at least one day during the week and for part of school holidays. Mr Daly occupies a two-bedroom property. His rent used to be met in full by HB. This was reduced by 14% under Reg B13.
Other cases
The Rutherford family and A had their cases heard together in the Court of Appeal.
The Rutherfords succeeded in their claim on the ground of disability discrimination.
A lived in a sanctuary scheme house (accommodation specially adapted to provide protection for women under severe risk of domestic violence).
Her claim succeeded on the grounds of sex discrimination.
Both A’ and the Rutherfords’ Equality Act claims were rejected.
However, the Secretary of State appealed the Court of Appeal’s decision to allow the Rutherfords’ and A’s discrimination claims. A cross-appealed the rejection of her Equality Act claim.
Judgement in Rutherford
The Secretary of State’s appeal in respect of the Rutherford family was unanimously dismissed.
Susan Rutherford is the grandmother of a teenage boy, Warren, who suffers from profound mental and physical disability. He requires 24 hour care by two people. He has been looked after by his grandmother since he was a few months old. She has been helped by her husband, Paul, since their marriage some years ago. They live in a three-bedroom house adapted for their accommodation. Respite care is provided by carers who stay overnight two nights a week. Without that help Warren’s grandparents would not be able to cope and he would have to go into a care home. The rent for the property used to be met in full by HB, but this was reduced by 14% under Reg B13.
The Rutherfords required a regular overnight carer for their grandson with severe disabilities. 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 decision in relation the Rutherfords were therefore manifestly without reason.
Judgement in A
The Secretary of State’s appeal in respect of A was allowed, and A’s cross appeal was dismissed, by a majority of 5 to 2.
A lives in a three-bedroom house with her son, who was conceived by her as a result of rape by a man with whom she had been in a relationship for a brief period. He has been exceptionally violent towards her and made threats regarded by the police as serious. Under a sanctuary scheme her property has been adapted to provide a high level of security and she receives on-going security monitoring. Her rent used to be met in full by HB, but this was reduced by 14% under Reg B13. The shortfall is covered by an award of DHP.
It was clear that A had a strong case for staying in her current house. It had been adapted under the sanctuary scheme and she felt safe there.
However, there was no automatic correlation between being in a sanctuary scheme and requiring an extra bedroom: the reason that A currently has an additional bedroom is that no two bedroom properties were available when she moved.
While the Court had considerable sympathy for A as she has strong social and personal reasons for staying these were unrelated to the property size.
The fact that people may have strong reasons unrelated to the number of bedrooms, for wanting to stay in their property is taken account of through the DHPs.
It therefore does not follow that A had a valid claim for unlawful sex discrimination. Although the state has a positive duty to provide effective protection to victims of gender based violence the means by which such protection is provided is not mandated and A has not established that Reg B13 will deprive her of a safe haven.
The PSED is a duty on the part of a public authority to follow a form of due process. On the history of events and the evidence, the Secretary of State properly considered the potential impact of the housing benefit cap scheme on individuals with disabilities.
Although the Secretary of State did not specifically consider the impact of Reg B13 on those within sanctuary schemes, he did address the question of gender discrimination.
A’s cross-appeal, under the Equality Act, was therefore dismissed.