Campaigners are coming to terms with an “illogical” and “inconsistent” high court ruling, which appears to have given the government a green light to discriminate against disabled people who need extra bedrooms because of their impairments.
Although the court suggested that the government’s “bedroom tax” policy did discriminate against disabled people, the two judges also decided that that discrimination was justified under the Human Rights Act and was therefore lawful.
Lord Justice Laws said in the judgment that the government’s decision to provide some extra funding for discretionary housing payments (DHPs) – which help some people with some of the shortfall in their rent – and advice and guidance “cannot be said to be a disproportionate approach” to disabled people “who would or might face real difficulties” because of the new rules.
The court also ruled that Conservative work and pensions secretary Iain Duncan Smith had fulfilled his public sector equality duty under the Equality Act because he had “properly considered” the effects of the housing benefit cap on disabled people.
This week’s judgment followed a three-day hearing in May into 10 claims brought by disabled people and their families against the housing benefit regulations, which came into force on 1 April and see tenants in social housing punished financially if they are assessed as “under-occupying” their homes.
But the judges’ ruling means the courts have now said that the regulations should not apply to disabled children who need their own bedrooms for impairment-related reasons, but should apply to disabled adults in similar situations.
All of the claimants are now set to contest this week’s judgment, but any appeal – assuming permission is granted – is unlikely to be heard before October at the earliest.
The judges ruled that it was impossible to identify the “precise” group of disabled people who need extra bedroom space because of their impairment.
But Anne McMurdie, of Public Law Solicitors, who are representing three of the claimants, said: “We disagree. We think it is very clear. We say there is a very specific class of people who need larger accommodation because of their disability, and that is really straightforward.”
And she said it was “very difficult to understand” how the judges could draw a distinction between disabled children who need extra space and disabled adults who need extra space.
She said: “It is definitely inconsistent and difficult to understand the logic as to why you would exempt one class and not the other.”
Although the Department for Work and Pensions (DWP) announced an extra £35 million – mostly for DHPs – for councils to help “vulnerable tenants” affected by the new rules, it was unable to say whether this money would be repeated in future years.
A DWP spokeswoman said the amount of funding given to councils for DHPs every year was “decided annually”, and added: “The amount we will pay for next year has not been decided.”
The Equality and Human Rights Commission, which “intervened” in the case, said it was “very disappointed” with the court’s decision.
A commission spokesman said: “A significant number of disabled people are affected by the proposed changes to housing benefit regulations and a higher proportion of these tenants are likely to be affected by the size criteria than non-disabled tenants.”
McMurdie said that all of the claimants were “in a dreadful situation” and “at risk of falling into debt”, with the extra money given to councils for DHPs “nowhere near enough” for all of the disabled people who need it.
She said: “People are not going to be able to make up that difference on an indefinite basis.”
There was some good news for disabled campaigners from this week’s judgment.
The judges also ruled that the government must publish regulations describing how councils should allocate housing benefit to disabled children who need extra space.
And they were critical of the Conservative work and pensions secretary, Iain Duncan Smith, as the court had asked him to produce these regulations 14 months ago.
Lord Justice Laws said that Duncan Smith “has no business considering whether to introduce regulations” because he was “obliged to do so”.
A DWP spokeswoman said the delay had been because Duncan Smith had wanted to await the outcome of this week’s case.
She said: “We are pleased to learn that the court has found in our favour and agreed that we have fulfilled our equality duties to disabled people.
“Reform of housing benefit in the social sector is essential, so the taxpayer does not pay for people’s extra bedrooms.
“But we have ensured extra discretionary housing support is in place to help those who need it and today we have announced a further £35m of funding to councils to aid residents.”
1 August 2013