Unlawful Discrimination and the bedroom tax


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The Supreme Court has handed down judgment on the issue of whether the removal of the spare room subsidy (the bedroom tax) was discriminatory in MA & Ors, R (on the application of) v The Secretary of State for Work and Pensions [2016] UKSC 58. 

The judgment comes after a ruling on seven individual cases, each of which challenged the housing benefit regulations underpinning the bedroom tax. The decision comes after years of cases on the topic and upholds that bedroom tax regulations, in certain circumstances, unlawfully and unjustifiably discriminate against those households with disabled members.

By way of background, the bedroom tax was introduced in April 2013 and is essentially a cap on the amount of housing benefit payable to tenants in social housing deemed to be under-occupying their home. Those affected lose between 14% and 25% of their housing benefit, depending upon how many spare bedrooms they have in their property.

In the lead judgment in the case by Lord Toulson it is made clear that the correct test is whether regulation B13 was ‘manifestly without reasonable foundation’. Notably, Lord Toulson rejected the appellant’s submission that ‘weighty reasons’ were required in disability discrimination cases.

In two of the other appeals forming part of the judgment, namely Rutherford (1) and Carmichael (2) it was held that in cases where there is a clear need for an extra bedroom on medical grounds, it is not enough that discretionary housing payments (DHP) may be awarded.  This, it was held, is the type of case that the regulations should make exemption for.

By way of factual summary to these other appeals, in Rutherford, their child required a carer overnight and in Carmichael, the couple were unable to share a bedroom due to a disability. In these circumstances, the Court noted that there was currently an ‘ironic and inexplicable inconsistency in the Secretary of State’s approach’ to the justification of the difference in treatment between disabled adults and disabled children.

However, other appeal cases raising disability discrimination were not successful on the basis that there was no direct medical need for an extra room. In other words, there was no direct connection between their or their family member’s disability and the need for an extra bedroom. In these appeals, the Court held there was a ‘social need’ for the extra bedroom.

The distinction, it seems, is a matter for consideration on the facts of each case and the merits of the social need. The DHP system of addressing the wider range of reasons for needing or wanting the extra room was a justifiable means of assessment in disability cases.

In light of this judgment, it seems certain that the current regulations will be amended by the Secretary of State to provide exemptions for households with the disabled individuals demonstrating a clear medical need for the extra room. For those not currently exempted, the DHP system will continue to apply.

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