In a significant judgment handed down today (9 November 2016), seven Judges of the UK Supreme Court have found that a vulnerable domestic violence victim must receive the protection of ‘Sanctuary Scheme’ accommodation for as long as she needs it, notwithstanding the operation of the Government’s ‘bedroom tax’.
However, a majority of the Court failed to require the Government to create a formal exemption from the size criteria for those who live in Sanctuary Schemes. A intends to challenge this finding before the European Court of Human Rights.
Background to the case:
The claimant, known only as ‘A’ because of ongoing threats to her safety, brought a judicial review challenge to the regulations creating the size criteria. A is a victim of rape, assault, harassment and stalking at the hands of an ex-partner. She lives with her son in a in a three-bedroom property which has been specially adapted for them by the police pursuant to a Sanctuary Scheme, to protect her from ongoing risk of serious violence. She is one of at least 281 Sanctuary Scheme users across the country who are affected by the size criteria. Under the provisions, she faces a 14% reduction in the housing benefit that enables her to stay in her home.
In January 2016, three Judges of the Court of Appeal unanimously upheld A’s case and ruled that the application of the ‘bedroom tax’ / size criteria to Sanctuary Scheme users constituted unlawful gender discrimination. The Secretary of State for Work and Pensions appealed this ruling to the Supreme Court. A’s case was supported by the Equality and Human Rights Commission and Women’s Aid.
Key findings of the Supreme Court:
In their judgment, five Judges of the Supreme Court made clear that, despite the operation of the size criteria, the Government and local authorities have a positive obligation to provide Sanctuary Scheme housing for women who need it. Lord Toulson, writing for the majority, held that “for as long as A, and others in a similar situation, are in need of the protection of sanctuary scheme housing, they must of course receive it” (paragraph 59).
In addition, two Judges went further and found that the failure of the Government to exempt Sanctuary Scheme users from the bedroom tax resulted in unlawful discrimination against women. The two Judges also found that the failure constituted a breach of the Government’s public sector equality duty, as it had not considered the disproportionate impact of the bedroom tax on domestic violence victims before introducing the provisions.
The Deputy President of the Supreme Court, Lady Hale, with whom Lord Carnwath agreed, explained that numerous domestic laws “recognise the positive obligation of the State to provide a safe haven for a comparatively small number of victims who are at risk of really serious violence” (paragraph 75). Lady Hale stated:
“The state has provided Ms A with such a safe haven. It allocated her a three-bedroomed house when she did not need one. That was not her choice. It later fortified that house and put in place a detailed plan to keep her and her son safe. Reducing her housing benefit by reference to the number of bedrooms puts at risk her ability to stay there. Because of its special character, it will be difficult if not impossible for her to move elsewhere and that would certainly put the State to yet further expense... denying her the benefit she needs in order to be able to stay there is discrimination … treating her like any other single parent with one child when in fact she ought to be treated differently. … Indeed, the [Secretary of State] does not seriously dispute that Ms A needs to stay where she is. The Secretary of State accepts that she needs to stay in a sanctuary scheme and probably in this very house.” (paragraphs 76-77).
Lady Hale found that the system of discretionary housing payments (DHPs) by which the Government had justified its discrimination against A was uncertain, onerous and insufficient. Lady Hale said:
“For a woman in a sanctuary scheme to have to endure all those difficulties and uncertainties on top of the constant fear and anxiety in which she lives cannot be justified. This is not a question of the allocation of scarce public resources: it is rightly acknowledged that public resources will have to meet this need one way or another.” (paragraph 77).
The majority of the Court declined to find that the bedroom tax unlawfully discriminates against women or that the Government had failed to comply with its public sector equality duty. The majority explicitly recognised the positive duty on the State to protect victims of gender-based violence, but decided not to proscribe the means by which the State should provide that protection (see Lord Toulson at paragraph 65: “I do not see that the duty to victims of gender based violence mandates the means by which such protection is provided”).
A’s response to the judgment:
A welcomes the Court’s clear recognition of the positive obligation on the Government to protect and provide a safe haven for victims of domestic violence in accordance with international standards. She is reassured by the Court’s finding that she and other Sanctuary Scheme users must receive the protection of Sanctuary Scheme housing for as long as they need it.
A calls on the Secretary of State for Work and Pensions and on local authorities to comply with this finding. She asks the Secretary of State and local authorities to guarantee that Sanctuary Scheme users will not face any risk of eviction or loss of housing security as a result of the bedroom tax while they remain in need of State protection against domestic violence.
A is disappointed that the majority of the Supreme Court declined to find that Sanctuary Scheme users should be formally exempted from the tax, in the same way that other vulnerable groups have been. It is unclear why the majority of the Supreme Court declined to find that this failure constituted unlawful sex discrimination. The majority’s finding that DHPs are adequate for A and others in Sanctuary Scheme homes whose lives are at risk is also inconsistent with its finding that DHPs are not adequate for the Rutherford and Carmichael families who require additional bedrooms for reasons arising from severe disabilities. A strongly agrees with the criticisms of the majority’s approach which are to be found in the dissenting judgment of Lady Hale and Lord Carnwath.
Rebekah Carrier, A’s solicitor, said:
“My client has been subjected to the bedroom tax because she was allocated a three-bedroom house 25 years ago, through no choice of her own, due to a shortage of two-bedroom houses. She is a vulnerable single parent who has been a victim of rape and assault. Her life remains at risk and she is terrified. As a result, she has been given the protection of a multi-agency network and had her home specially adapted by the police, at great expense. For her physical safety, housing security and psychological wellbeing to be endangered on an ongoing basis by the bedroom tax is both cruel and illogical.
My client, along the small number of other women in her position, is reassured that the Supreme Court has stated that she must be provided with Sanctuary Scheme housing while she remains in need of it. We call on the Secretary of State for Work and Pensions and local authorities to comply with the Court’s finding by guaranteeing her accommodation and that of women in a similar position, in line with their international obligations. It is essential that the Secretary of State now takes two steps to comply with the judgments. First, he must immediately issue urgent guidance to all local authorities, making clear that any individuals in need of Sanctuary Scheme accommodation continue to receive it. Second, he must ensure that sufficient funding is provided to local authorities for this purpose.
Although we welcome today’s ruling that A must continue to receive Sanctuary Scheme protection for as long as she needs it, we are disappointed and frankly baffled by the majority’s finding that there is no need to formally exempt Sanctuary Scheme users from the effects of the bedroom tax. I confirm that we are instructed to challenge the UK in the European Court of Human Rights, for breach of the rights of A and other vulnerable women whose lives are at risk .”