Bedroom tax discriminates against disabled children, say appeal court judges

The government’s “bedroom tax” discriminates unlawfully against disabled children, the court of appeal has ruled.

The appeal court, which overturned a high court decision, was hearing the case of two disabled grandparents who care for their disabled grandson in an adapted three-bedroom bungalow in Pembrokeshire, Wales.

The court also ruled that the bedroom tax – or the spare room subsidy removal (SRSR), as it is called by the government – discriminates against victims of domestic violence, after hearing the case of a woman whose home had been adapted to include a “panic room” to protect her from a violent ex-partner.

The appeal court had heard that Paul and Susan Rutherford had been found to be “under-occupying” their home and had their housing benefit cut by 14 per cent, even though their 15-year-old grandson Warren, who lives with them, needs 24-hour care from at least two people at a time.

Two paid care workers stay overnight in their bungalow at least twice a week, but the Rutherfords were hit by the bedroom tax for their third bedroom, which they need for the care workers to sleep in, and for storing disability equipment for Warren. 

Although the rules allow for an extra bedroom if an adult claimant or their partner needs overnight care, this does not apply to families with a disabled child.

The court of appeal found that work and pensions secretary Iain Duncan Smith had unlawfully discriminated against disabled children under the European Convention on Human Rights (ECHR), while he had also failed to have regard to the best interests of disabled children when devising the bedroom tax regulations.

Although the Rutherfords now receive discretionary payments from the local authority to cover the bedroom tax – the council had originally refused their application – the court said there was no guarantee this would continue in the future.

The lord chief justice, Lord Thomas, one of the three judges who heard the case, said in the written ruling that it was “clear” that Duncan Smith “should have had specific regard to the best interests of children in the position of W as a primary consideration when devising the Regulations”.

The Department for Work and Pensions (DWP) has been given permission to appeal the court’s ruling on the two cases to the Supreme Court.

After the ruling, when asked by Sky News what his message was to those responsible for the bedroom tax, Paul Rutherford (pictured during the interview) said: “I’d say they have no idea what they are doing, I would say they should look closely at Warren, they should look at myself, and they should ask themselves what they are doing, what do you hope to achieve by this?

“What is the ultimate aim? To grind us down even further, is that what you want to achieve?

“Do you want Warren to go into care? Do you want me to have a nervous breakdown or my wife?

“Or do you want us as citizens of your country to just live our lives and give this young man the best that we can.

“That’s what we want to do, and it’s over to them what they want to do now.”

Mike Spencer, solicitor at the Child Poverty Action Group, who acts for the Rutherfords, said: “Instead of putting this family through the ordeal of a further appeal, the government should now think seriously about amending the regulations to protect severely disabled children.”

A DWP spokeswoman said: “We fundamentally disagree with the court’s ruling on the ECHR, which directly contradicts the high court.

“We know there will be people who need extra support.

“That is why we are giving local authorities over £870 million in extra funding [for discretionary housing payments, although most of it is not for bedroom tax cases] over the next five years to help ensure people in difficult situations like these don’t lose out”

It is likely that the Rutherfords’ case will be heard on 1 and 2 March by the Supreme Court, at the same time as the domestic violence case and another bedroom tax appeal involving disabled people.

That case concerns five disabled adults – including Jayson and Jacqueline Carmichael, from Southport – who all need extra bedrooms for impairment-related reasons.

They lost their case in 2014, after the court of appeal ruled DWP regulations do discriminate against some disabled people, but that this discrimination was justified, and therefore lawful.

Ken Butler, welfare rights officer for Disability Rights UK (DR UK), said: “This is a very significant judgment, as the court ruled that the existence of discretionary housing payments does not justify or mitigate against bedroom tax legislation that discriminates against disabled people.

“What disabled people need is the assurance of having their entitlement to housing benefit enshrined in law and not to have the worry and stress of repeated applications for discretionary help that could be refused without the right to independent appeal.”

DR UK said it would write to Duncan Smith to ask him to accept the court’s ruling and respect the right of families such as Warren’s to support that is “respectful of family life” and cheaper than the alternative of residential care.

The charity added: “We will ask the government to bring forward, instead, regulations that will create a new exemption to this discriminatory tax.”