Supreme Court decides legal challenge to ‘BEDROOM TAX’ by domestic violence victim

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 .”

The judgment is available online