Supreme Court to decide on ‘unlawful’ bedroom tax | CPAG

Supreme Court to decide on ‘unlawful’ bedroom tax

Published on: 
23 February 2016
Written by: 

Sophie Earnshaw
Former trainee solicitor

Following last month’s victory in the Court of Appeal, the battle continues for Paul and Sue Rutherford and their severely disabled grandson, Warren. The Court held that the ‘bedroom tax’ (or under-occupancy penalty) is in breach of the Human Rights Act 1998, unlawfully discriminating against disabled children requiring overnight care and victims of domestic violence living in Sanctuary Scheme Homes (in the case of ‘A’). The Government was quick to appeal this decision. We have been representing the Rutherford family since 2013 and will be in the Supreme Court defending the Court of Appeal’s decision from 29 February. SSWP v Rutherfords has been joined with other bedroom tax cases, MA & Others and A.

Paul and Sue Rutherford are full time carers for Warren who has a rare genetic disorder, Potocki-Shaffer Syndrome. Warren is unable to walk, talk or feed himself and is doubly incontinent, he needs around the clock care and their Pembrokeshire home is specifically adapted to meet Warren’s needs. At least twice a week, Paul and Sue have professional carers who stay overnight to look after Warren providing them with much needed respite and sleep. Without this support, Warren would have to go into residential care. It is this third bedroom used by the carers and also to store Warren’s disability equipment, that is deemed ‘spare’ and resulted in the family being hit by the bedroom tax with a 14% reduction in their housing benefit.

The Government maintains that in the case of the Rutherfords, discrimination is justified as the family has not suffered financially as a consequence of the reduction. This is, they argue, because the local authority discretionary housing payments (DHPs) cover the shortfall in rent and will be effective in covering the future shortfall on an ongoing basis. We argue that DHPs are not an effective and sustainable solution for the Rutherfords, and the discrete group of families with severely disabled children who need overnight care. That the Rutherfords were originally refused DHP payments despite their exceptional circumstances, reflects how ineffective this policy is in protecting vulnerable families and children. It was only when their case was in the public domain, that the local authority revised their decision and awarded a DHP. Despite the eventual award, there is no guarantee that these payments will be made in the annual repeat claims the family has to make. This leaves Paul and Sue with the huge weight of insecurity and uncertainty, with no assurance that their housing situation and home for Warren are protected.

DHPs are managed by local authorities and are awarded to provide further financial assistance towards housing costs. They may be used to cover a shortfall in rent or other housing costs however, these payments are largely short-term and in some cases applied as an emergency measure only. From a CPAG survey conducted in February 2016, of the DHP policies and guidance publically available online in England 41% state that the DHP can only be provided for a ‘short term’ and 28% of local authorities specify a maximum length of the time a DHP, between 3 and 12 months. For example, Harrogate Council states in their guidance that “Awards are only intended to be “short-term” awards and will only be given for a temporary period. There are limited funds available for making awards and the Council has discretion about whether or not it makes a payment to you.”  We have been contacted by support organisations and claimants with examples where DHPs have been refused. In one example, the mother of a severely disabled son was dissuaded from applying for a DHP and told by the local authority that if successful, it would only be for four weeks. DHPs are not designed for long term support. Once awarded, the claimant has to reapply for all future discretionary payments. Repeat applications might be required as regularly as every 13 weeks.

The DHP policy is ‘discretionary’ and it is for individual local authority to decide on an award. Each local authority has its own policy and application process for DHPs. There are no appeal rights for the claimant if unsuccessful making it difficult for claimants to challenge the local authority. In addition to the onerous application process and the discretionary short-term nature of the payments, the fund is limited. Once the amount allocated by the Government to the local authority has been exhausted, existing claims will be stopped and new claims refused until the fund is replenished in the next financial year. For example, in Southwark a mother of a severely disabled daughter was refused a DWP because there were no funds left, read here.

DHPs are a plaster solution; a quick fix that is not sustainable nor just for vulnerable families with severely disabled children who require overnight care. The Regulations that deal with ‘bedroom tax’, already exclude severely disabled adults who require overnight care following a previous legal challenge. Families with severely disabled children should also be exempt from the bedroom tax.

The Rutherfords have been fighting for justice long enough. We hope that the Supreme Court will be the last court Paul and Sue will have to face.

Watch the hearing live on the Supreme Court website.