Gorry v DWP: Housing Benefit size criteria and severely disabled children

12 March 2013

This case establishes that the size criteria used to determine housing benefit discriminate unlawfully against disabled children who cannot share a room because of their disability.  The case also benefits disabled children affected by the "bedroom tax".

Details of the case

Mr Gorry's case was joined with Burnip v Secretary of State for Work and Pensions and Trengove v Secretary of State for Work and Pensions, in which the housing benefit size criteria discriminated unlawfully against claimants with disabilities who needed an additional room for a carer.  We acted for Mr Gorry and Mrs Trengrove.

Counsel in this case are Richard Drabble QC and Tim Buley, of Landmark Chambers and Desmond Rutledge of Garden Court chambers. Mr Burnip is represented by Irwin Mitchell solicitors.

Court of Appeal Judgment

On 15 May 2012 the Court of Appeal found that the appellants had suffered unlawful discrimination on grounds of disability contrary to Article 14 of the European Convention on Human Rights.  Maurice Kay LJ concluded: "the Secretary of State has failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria". 

DWP appeal to the Supreme Court

On 25 May 2013 the Secretary of State for Work and Pensions appealed to the Supreme Court.  Although the rules have been amended to allow for an overnight carer, he has refused to amend the housing benefit regulations to allow disabled children to share a room.  Instead, from April 2013, the same size criteria will be extended to tenants in the social rented sector.

Initially, the DWP  issued guidance to local authorities suggesting that they suspend payments pending the appeal to the Supreme Court- see Circular HB/CTB A62012: Similar guidance were issued regarding the changes in the social rented sector - see HB/CTB A4/2012.

However, on 11 March 2013 the DWP issued new guidance announcing that they were dropping their appeal and that payments should not be suspended (see above). The result is that the "bedroom tax" will not apply where severely disabled children are unable to share a room.

According to Circular HB/CTB U2/2013:

5. The Secretary of State has today clarified the position regarding disabled children and has decided not to pursue the appeal further.

6. This means that from the date of the Court of Appeal judgment on 15 May 2012, local authorities (LAs) should allow an extra bedroom for children who are unable to share because of their severe disabilities following the guidelines as set out in paragraphs 7 to 10 below.

7. When a claimant says that their children are unable to share a bedroom, it will be for LAs to satisfy themselves that this is the case, for example, a claim is likely to be supported by medical evidence and many children are likely to be in receipt of Disability Living Allowance (DLA) for their medical condition. In addition LAs must consider not only the nature and severity of the disability, but also the nature and frequency of care required during the night, and the extent and regularity of the disturbance to the sleep of the child who would normally be required to share the bedroom. In all cases this will come down to a matter of judgement on facts of each individual case.

8. It should be noted that the judgment does not provide for an extra bedroom in other circumstances, for example, where the claimant is one of a couple who is unable to share a bedroom or where an extra room is required for equipment connected with their disability.

9. LAs were previously advised that as a result of the Court of Appeal judgment they could suspend part of the award which allowed for the extra room. For any cases where the LA has suspended for this reason, the suspension can now be lifted and the claimant notified of the revised decision. Arrears must also be paid as appropriate.

10. The Court of Appeal judgment is now considered to be case law and as such LAs are legally bound to apply the judgment.

11. The judgment applies to both the LHA size criteria and the reduction of the spare room subsidy which applies from 1 April 2013.

What can tenants with disabled children do?

Tenants whose children cannot share a room because of disability should ask their local authority to calculate their housing benefit by reference to an additional room, in accordance with the Gorry judgment and DWP guidance above. This applies to both private and social housing tenants from April 2013.   It would be a good idea to send medical evidence as to why the children cannot share a room.  If the local authority refuse to allocate an extra room and accordingly reduce the amount of housing benefit, claimants can either request a revision or appeal to the First-tier Tribunal.