Council challenged over DLA in latest ‘bedroom tax’ court case

A disabled couple are challenging their council’s decision that their disability benefits must be taken into account when deciding the level of housing benefit they receive, in the latest legal challenge around the government’s controversial “bedroom tax”.

Lawyers have been granted permission to bring a judicial review of the decision of Sandwell council that the couple’s disability living allowance (DLA) must be counted as income when assessing how much discretionary housing payments (DHP) they are given.

The lawyers, from legal firm Irwin Mitchell, argue that the council’s policy breaches both the Equality Act and the Human Rights Act.

They believe similar policies are in place in other councils and could be affecting hundreds of disabled people across the country.

The bedroom tax was introduced last April and financially punishes tenants in social housing if they are assessed as “under-occupying” their homes.

The couple have lived in their home for more than 20 years and are happy to move to a smaller property, but the lack of suitable, accessible accommodation – they need to live on the ground floor and have easy access to their mobility vehicles – means they have to continue to use some of their DLA to meet the rent shortfall caused by receiving a lower DHP.

The female claimant receives the higher rate of both the mobility and care components of DLA, while her husband receives higher rate mobility and middle rate care.

The judicial review is likely to be heard by the high court in March or April.

Fiona McGhie, the Irwin Mitchell public law specialist who is heading the claimants’ case, said the imposition of the bedroom tax – referred to by the government as the spare room subsidy removal (SRSR) – meant that her clients faced “a shortfall between their benefits and outgoings which means they currently need to also apply for a DHP to simply keep a roof over their heads”.

She said: “However, the key problem is that Sandwell, like many other councils, is now taking into account DLA when deciding on the amount of DHP they are eligible to receive – a decision we believe is unreasonable and not theirs to make.

“The effect of the decision is to drive disabled people into poverty.”

McGhie added: “With many local authorities following similar principles to Sandwell, we feel that the judgment in this case may have a major impact on the future of how councils assess benefits issues and will provide clarity to the law around this complex area.

“This policy essentially means councils are determining or passing judgment on what disabled people should be using their DLA for without clear legal authority to do this.

“DLA is paid to meet disability-related costs – not housing costs.”

A Sandwell council spokeswoman said: “We are giving this matter active consideration but we believe that we have interpreted the government’s legislation correctly.”

A Department for Work and Pensions spokesman declined to comment on the judicial review itself, but said: “DHPs are run at the discretion of local councils so they can best support their local communities.

“However, we provide guidance to councils on whether to disregard income from disability-related benefits when cash is committed to costs such as mobility schemes or provision of care.”

Meanwhile, the court of appeal has reserved judgement after a three-day hearing this week into whether the bedroom tax discriminates against disabled adults.

Five disabled people lost their high court case against the Department for Work and Pensions (DWP) last summer, but subsequently won permission to appeal.

The high court ruling had confirmed the government’s position that the SRSR regulations still apply to disabled adults who need their own bedrooms for impairment-related reasons, but do not apply to disabled children in similar situations.

Speaking before the court of appeal hearing began, Ugo Hayter, from the legal firm Leigh Day, which is representing two of the five claimants, said: “We are very confident that the court of appeal will see that the decision to implement this legislation by the government was clearly discriminatory and will overturn last year’s ruling by the high court.

“It is a cruel and deeply disturbing benefit cut which hits the most vulnerable in society.”

24 January 2014