Tuesday, 30 July 2013

Bedroom Tax at the High Court

I was very sorry to hear the legal challenge to the bedroom tax was thrown out of the High Court after just eight minutes. Sorry, but not at all surprised. And, if I'm honest, right from the start I've been of the opinion this action wouldn't go anywhere. Natural justice and that administered by HM Courts and Tribunals Service seldom meet, and, indeed, under the law, the government's bedroom tax has not broken it.

The grounds the policy were contested on were human rights laws; that the policy unfairly discriminated against disabled people. It's incontestable that it does. With Employment Support Allowance capped by a real terms cut at 1%, Disability Living Allowance to shortly be reduced in scope under the obscenely-named 'Personal Independence Payments', price inflation, and the making hundreds of thousands liable for a contribution toward their Council Tax bill, it's obvious a punitive policy like this would hit our most vulnerable people - among whom are disproportionate numbers of those who live with disabilities.

But the government undertook a crafty double move to ensure that the bedroom tax's administration absolved them of any legal responsibility for it. Earlier in the year, after being questioned by my MP about what constitutes a bedroom under the policy, Welfare Reform Minister Lord Freud replied by saying there isn't any objective definition. Instead, when someone signs a tenancy agreement with a local authority or other social housing provider they accept the house has x number of bedrooms stipulated on the contract. In other words, what is and isn't a bedroom is determined beforehand by the landlord and this is then accepted by the tenant once the agreement is signed.

The second part of the government's move is they have left it up to local authorities - as administrators of Housing Benefit - to determine who is and isn't exempt from the shortfall left by the bedroom tax. In my own experience dealing with the City Council here in Stoke, as per guidelines, it has decided to exempt anyone for whom another room is required for equipment essential to a resident's continued health, or who uses the spare as a stopover room for a carer. The case of Charlotte and Jason Carmichael, highlighted in the BBC's report, clearly falls into the latter category. While they are married they cannot, for medical reasons, share a bed. Therefore as a full-time carer who has to sleep in the "spare" bedroom, they should not have to pay the penalty. However, for whatever reason, the decision maker - the local authority - has decided the Carmichaels are not exempt. Legally speaking therefore, it is their council who has responsibility and may be open to court action on discrimination grounds, not the government.

Just imagine it. The spectacle of disabled people taking Labour-run councils to court and how it might demoralise that section of core Labour support who are disgusted by the attacks on the most vulnerable this government are making. You could almost say the implementation of the bedroom tax was designed with this in mind.

Unfortunately, while lawyers have pledged to take this to appeal I would be surprised if it got anywhere. Again, under the laws as they stand, the government have no legal responsibility for how one of their flagship social security policies is implemented. If the law ain't broken from a legal standpoint, further action isn't going to fix it. What do they say about the law again?


Andy Platt said...

I disagree.

I haven't seen the full decision yet so I'm going from media reports but I understand that part of the judges' reasoning is that Discretionary Housing Payments can take up the slack.

Such reasoning fundamentally misunderstands the nature of the DHP scheme in that it is discretionary (in effect there are no rules as to how it is allocated) and also cash limited to an extent that it has no possibility of replacing the losses caused by the bedroom tax. In no whatsoever does it provide ANYONE with an exemption from the BT.

While it does show cunning on the government's part to dump the problem on local authorities, aided by some carefully placed misinformation implying that exemptions are available, in reality it has left councils with a problem without providing the with the tools to deal with it. As such, the fundamental scheme is still discriminatory because of the disproportionate effect on disabled people.

Unfortunately the High Court is not very good at dealing with benefits law, it's a rather specialist field with no money in it so few lawyers build up the expertise and so there are few knowledgeable judges. Most of the expertise is with judges sitting in the Upper Tribunal. It's interesting that a judicial review of the WCA was heard in the Upper Tribunal recently. I don't know how it's decided which cases go to the High Court and which go to the UT.

Another factor is that there is considerable tension between the government and the courts over the latter's power to strike down legislation. The judges in this case shied away from doing so, the Appeal Court tends to be a little more robust.

I personally think there is a very real chance of this decision being overturned by the Appeal Court. Obviously nobody can be certain but I'm glad they're pushing ahead with it.

Phil said...

Well, I hope you're right Andy. As you may have gathered from the post, I was not under the impression that discretionary housing benefit was time-limited.