After All That, Could the Bedroom Tax Actually Be Unlawful?

On Wednesday morning there was some good news for people affected by the government's much-maligned bedroom tax. A court of appeal found two cases of the policy – a large cut to council and social housing benefit claimants who have an unused bedroom – to be discriminatory and unlawful.

The bedroom tax – which the government prefers to call a 'spare room subsidy cut' – was introduced in April 2013 as part of the Welfare Reform Act, on the premise that residents of under-occupied flats should be penalised in order to free up space for overcrowded families. As these cases show, the policy has been a mess.

The first involved a domestic abuse victim known as "A" who had her benefits cut after installing a panic room in her three-bedroom council house. The second involved Paul and Susan Rutherford, who were hit by the bedroom tax because their severely disabled grandson needs a specially adapted room for overnight care.

Back in December, the Department for Work and Pensions (DWP) sneaked out a report that shows just how damaging the bedroom tax has been for hundreds of thousands of people across the country. According to the study 78 percent of people affected run out of money by the end of the week or month on a regular basis, while 75 percent have had to cut back on food. Nor has the goal of forcing people to downsize to smaller properties been working. The report shows that just one in nine claimants have been able to move to a different property.

Keen to find out where Wednesday's ruling leaves people affected by the bedroom tax and keen to gauge just how pissed off the DWP is right now, I spoke to property lawyer and all-round housing expert Giles Peaker.

VICE: Hi Giles. Could you tell us what this ruling might mean for people affected by the bedroom tax?
Giles Peaker: Well it applies to two specific classes of people. One is the Rutherford class, which is people who care for disabled children and need the additional room because of the child's disability. The other class involves the "A" class, which is people who have a panic room that enables them to remain in their own houses. In each of these classes the court has found that there was discrimination and that the DWP's argument that Discretionary Housing Payment [DHP – extra payments that help people pay their rent] was available through local councils was not a sufficient justification because it's not certain enough that DHP will be available to people that need it.

So this ruling is quite specific. How much hope can other people affected by the bedroom tax draw from it? Perhaps the Tories will now face more pressure to review the whole thing?
I'm a lawyer so I'm never positive. But there are clear issues with the bedroom tax scheme and these cases demonstrate them starkly. If the Supreme Court upholds the DWP's position there won't be a review. But I think it certainly adds to the pressure on the DWP to look at the blanket operation of their scheme. By and large bedroom tax cases have not done well at the court of appeal so this is a significant step on the way. This is the first bedroom tax case that has won at this stage.

What about other bedroom tax cases that are going through the legal system? Could this ruling affect them?
It's very interesting because there are larger bedroom tax appeals that are being heard in the supreme court in March. These involve about 12 joined cases, most of which are people who require an additional bedroom because of a partner's disability – people who can't share a room but are expected to, under the bedroom tax regulations. The argument was that this involved disability discrimination. But the court of appeal said it was mitigated by DHP. In other words they agreed with the DWP's argument: that because there were additional funds in place, anybody in a serious situation would be sorted out.

In today's cases, however, the court of appeal said DHPs weren't enough and that DHP may or may not be available. So while the court of appeal has previously been quite happy to accept that DHP did the job of justifying discrimination, now they are not. These are obviously specific situations but it does indicate quite a different approach and a change of thinking. If the Supreme Court finds that DHP isn't enough in the cases being heard in March then a broad sweep of the bedroom tax as it applies to disabled people would be found unlawful.

Speaking more generally, how destructive has the bedroom tax been, in your opinion, since it was introduced in 2013?
You can simply look at the research the DWPs itself commissioned, which came out just before Christmas. It's hugely destructive. It's impacting people with need for the additional room and the properties they'd move out to simply aren't available, so arrears have risen, people are borrowing money, eating less and using less heating. And these are people with extremely limited incomes.

Do you think this decision is a good example of the problems facing the government's wider welfare policies?
I think the broad-brush approach of the DWP to benefit reform is coming home to roost. There have been quite a few challenges and quite a few are ongoing, but courts are finding that benefit reforms are having an unacceptable and discriminatory impact. So yes, this is certainly part of a range of challenges to the government's benefit reforms, which are revealing the extreme difficulties people are facing.

The government says they will appeal today's decision and the case is now being decided by the Supreme Court. What do you think will happen?
I hesitate to second-guess the Supreme Court but I would suspect the judgement with Rutherford and "A" will be a difficult one to overturn. With the other bedroom tax cases happening in March, there are broader arguments at play, but my suspicion is that they might win on appeal too.

Thanks Giles.

@PKleinfeld

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