Ref. R (on the application of MA & Ors) V the Secretary of State for Work and Pensions and Birmingham City Council  EWHC (2213)
The so called ‘Bedroom Tax’ has been in the news ever since its introduction on 1 April 2013. The changes are not actually a tax, but part of a wider review of the housing benefits system under the Welfare Reform Act 2012 – a substantial piece of legislation addressing aspects of the benefits system from Jobseeker’s allowance to Universal credit. Instead of actually being a tax, the benefits due to a household can be curtailed, depending on the level of use they exhibit for the social house they are in.
Typically, the size criteria in the social rented sector will restrict housing benefit to allow for one bedroom for each person or couple living as part of the household, with the following exceptions:
- Two children under 16 of same gender expected to share
- Two children under 10 expected to share regardless of gender
- Disabled tenant or partner who needs non-resident overnight carer will be allowed an extra bedroom
- Approved foster carers will be allowed an additional room so long as they have fostered a child, or have become an approved foster carer in the last 12 months.
- Adult children in the Armed Forces will be treated as continuing to live at home when deployed on operations.
The provisions of this Act came under a direct challenge as a group of ten disabled housing benefit recipients instigated a judicial review to question the content of the Act. They mounted a three pronged challenge:
- The new measures were unlawfully discriminatory because they failed to provide for the needs of disabled people in a way which violates their rights under Article 14 of the European Convention on Human Rights (ECHR). The claimants were said to “represent a range of individuals who are typical of those who are adversely affected by these changes for reasons relating to disability in a way that violates their Article 14 rights…”.
- The new measures constituted or involved a violation by the Secretary of State of the public sector equality duty (PSED), imposed by s. 149 of the Equality Act 2010.
- The Secretary of State had unlawfully deployed guidance, in the shape of Circular HB/CTB U2/2013, to prescribe the means of calculating the appropriate maximum HB for certain classes of case. That could only be done by secondary legislation; and in any event the guidance could not cure the discriminatory effects of the Regulations.
Lord Justice Laws and Mr Justice Cranston presided over the case and on the first two points they disagreed with the Claimants.
Although they agreed that the changes were discriminatory, the question was whether or not that discrimination was proportional. They held that discrimination was justified, save in cases where disabled children were unable to share a bedroom because of their disabilities.
The Court also concluded that the public sector equality duty had been fulfilled “and the effects of the HB cap were properly considered in terms of the discipline imposed by the requirement of proportionality”.
Although on the third point the Court did criticise the Secretary’s use of a circular for guidance, not the appropriate Secondary legislation, the overall claim was firmly rejected.
On the third point, in fact, Lord Justice Laws commented that he assumed “that new regulations will be made very speedily”, so we may expect further thorough definition of the changes to follow in the coming months.
He also commented obiter on the interaction of the judiciary with matters of discrimination and liberal values in general:
Much of our modern law, judge-made and statutory, makes increasing demands on public decision-makers in the name of liberal values: the protection of minorities, equality of treatment, non-discrimination, and the quietus of old prejudices. The law has been enriched accordingly. But it is not generally for the courts to resolve the controversies which this insistence involves. That is for elected government.
Thus, it follows, any legitimate grievance against this act will fall in the political arena, through lobbying or registering a vote in the 2015 elections. That is not a sentiment evidently recognised by the lawyers operating on behalf of the Claimants in this instance, who have recently issued a statement claiming they will pursue a speedy appeal.
02/08/2013 SRJ / LCB