Artwork by Julia Giles

Bedroom Tax victory: Disabled children

The Government has amended its controversial ‘under-occupation penalty’ scheme, commonly known as the ‘bedroom tax.’  Disabled children who are unable to share a bedroom because of their disabilities will now be exempt from the scheme.


The change in policy follows two defeats in the courts for the Department of Work and Pensions on this issue over the past eighteen months: in May 2012 in the Gorry case (Court of Appeal), and again in July 2013 in the MA case (Divisional Court).  In July 2013 the High Court ordered that the Secretary of State had until 31st October 2013 to alter the rules.  Yesterday the Government made new Regulations exempting disabled children from the policy.  This is an important victory for the five families who challenged the Secretary of State in court, but also for the many thousands of affected families nationwide. 

BACKGROUND


The ‘bedroom tax’ for social sector tenants came into force earlier this year, in April 2013.  A group of five families with disabled children issued proceedings in the High Court in an attempt to protect their homes and the homes of thousands of other families like them from  the effect of the policy.  The claimants included a child with Down’s Syndrome, three children with autism, and one with a rare and very severe genetic condition, Joubert’s Syndrome.  All of the children had been assessed by experts as requiring their own bedroom, due to their disability or the disability of a sibling.

At that time there were no exemptions for disabled children.  Even where severely disabled children had a clear and recognised need for their own bedroom, their parents faced heavy financial penalties for “underoccupying” or being forced to move from their homes.   With the support of the National Autistic Society and Contact a Family, these families argued that the bedroom tax should not apply to them. 


The government’s response was confused. In March David Cameron stated publicly that the tax did not apply to disabled children: this was simply not true. At the time the government was still fighting a court ruling last year about similar rules for private sector tenants. Only after these families started proceedings did the government abandon their appeal in the Gorry case and suggest that disabled children might be exempt. The position since April has been confusing for tenants, landlords and local authority housing benefit officers alike. The government continued to defend the court action.
In July 2013 the Divisional Court ruled that the Secretary of State must introduce Regulations to provide for the position of disabled children unable to share a room with their siblings.  Lord Justice Laws said, “The Secretary of State has no business considering whether to introduce regulations to conform HB provision with the judgment in Gorry. He is obliged to do so.”


After this  legal challenge succeeded, the government still delayed in changing the rules, failing to keep the families and their lawyers informed, and only finally making the new Regulations yesterday, the final day allowed by the Court.
The mother of TA, one of the Claimants, said today:


“I am relieved that at last the position for families like mine is clear and that following the court's decision in July the government have finally changed the rules which would have had such a terrible effect on families like mine. My son needs his own bedroom because of his serious health problems. Without that bedroom, we were told he would have to go into residential care. I m sure that everyone can understand what heartbreak such a situation would cause any mother. We have been very disappointed by the way that the government have behaved throughout our case, but delighted that at last the position is clear. We will continue with our appeal, because at the moment the government has an order for legal costs against us, which seems ridiculous to me, given that we won our case and that the rules have now been changed as a result. However, we are so happy that the real battle is over.”

Rebekah Carrier of Hopkin Murray Beskine, the children’s solicitor, said:


“The outcome of the legal challenge to the bedroom tax was widely reported as a victory for the government. But for the disabled children, this was not correct.  They succeeded in challenging the Secretary of State’s unlawful failure to provide for the needs of disabled children.  As MA’s mother says, this case has resulted in significant change in the rules and a victory for disabled children and their families across the country. Thousands of families are now freed from the worry about homelessness and the financial pressures of the bedroom tax.


However, the appeal against the High Court’s decision, which rejected two of the three legal arguments about the discriminatory effect of the bedroom tax, continues. The adult disabled Claimants in the case remain at real risk of serious harm, including homelessness and deterioration in their health, because of the bedroom tax.”

Emma Burgess, of Public Law Solicitors, who represents one of the disabled adults whose case is awaiting hearing in the Court of Appeal, said:

“Though this is a undoubtedly a victory for many of the households affected by the measure; as disabled children who can’t share a bedroom with a sibling are now allowed their own room; the wrong against disabled people has not been righted yet. Others including disabled children who can’t share with a parent, disabled adults who can’t share a room with their partners and disabled adults who can’t move from their homes due to the nature of their disabilities or the suitability of their current properties, are all still subject to the devastating impacts of this measure. The Government’s own statistics suggest 2/3 of the people affected by this measure are people with disabilities. The Divisional Court agreed this was discriminatory, but decided the discrimination could be justified. We do not believe this can be right. We are hopeful the Court of Appeal will rule the discrimination against disabled people cannot be justified and is nothing short of disgraceful in modern Britain. The fight for disabled people continues in the Court of Appeal in January 2014.”
 



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