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The Bedroom Tax and the disabled: a step too far?

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    Joachim Stanley considers the recent Court of Appeal ruling in relation to ‘bedroom tax’ and the implications for disabled children and their families.

    By Joachim Stanley

As a clinical negligence practitioner who works frequently with families in receipt of benefits, I was delighted to see that the Court of Appeal ruled last week that the government’s controversial ‘Bedroom Tax’ is discriminatory against victims of domestic violence and families with disabled children.

What is ‘bedroom tax’?

The Bedroom Tax is not a tax as such: rather, it is a change to housing benefit rules which was introduced in April 2013.  Since that date, families who were deemed by local authorities to have ‘too much’ living space (possibly, though not necessarily, a spare room) were at risk of having their housing benefit reduced.  The usual example of having too much living space was if there were more bedrooms than the number of people living in the house.  The government argued that the legislation aimed to ensure that families in publicly owned or subsidised housing were not placed in a better position than those renting privately.  They also claimed that it would encourage benefits claimants to seek work.

Since its inception, the legislation has been controversial.  This is in part because the removal of what the government called a “spare room subsidy” has potentially profound negative effects upon the disabled.  Typically, severely disabled people (particularly those who use wheelchairs) simply require more space.  This is partly because of the extra equipment they require, and partly because they may need either live-in or sleep-in carers.   If a claimant has problems with coordination, an insufficiently spacious home could be hazardous.

The legal challenge

Legal challenges to the legislation were mounted by a victim of domestic violence who required a panic room, and by the grandparents (Paul and Susan Rutherford) of a 15-year-old boy, who was severely disabled.  The second case dealt primarily with the effects of the change in the rules to disabled children who need overnight care.  The Rutherfords initially sought to judicially review the policy in the High Court in 2014, but were unsuccessful.  They then proceeded to the Court of Appeal, which ruled in their favour.  It was determined that the government’s policy was discriminatory to the disabled.

The DWP have already indicated their intention to take the case to the Supreme Court, as they contend that the Court of Appeal’s ruling was not correct, arguing that they have provided local authorities with money to make discretionary payments to claimants who face hardship because of the ‘Bedroom Tax’.  They omitted to mention the devolved financial pressures imposed upon the same authorities to reduce spending.

The BBC’s legal affairs reporter Clive Coleman commented that the Court of Appeal’s decision is likely to apply only to victims of domestic abuse and severely disabled children.

Our experience

The plight of very disabled children and their parents is known only too well by me and my colleagues who act for a number of children who have suffered severe injuries caused at or around the time of their birth.  We often meet families who have had to give up work in order to care for a disabled child: because they are providing care around the clock, it is usually unrealistic to expect such parents to work (certainly not in a full-time capacity) and therefore they are reliant on state benefits.  The added financial burden of the ‘bedroom tax’, or having to seek discretionary payments from cash-strapped local authorities in the alternative, is an unnecessary stress for them to have to endure and therefore I hope that the Supreme Court will uphold the Court of Appeal ruling in due course.

Whilst we always strive to obtain compensation for every disabled child whom we can help, these cases can often take many years to settle.   They are usually hard-fought, and it is frequently impossible to achieve settlement before the child is approximately 8 years old, simply because the medical condition has not fully settled, and consequently the level of care and other needs the child will have for the rest of their life is unclear.  We are always mindful of this, and do our utmost to facilitate early settlements and (where possible) interim payments of damages to put in place appropriate support and ease financial pressure as early as possible.

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