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A defeat for the Government regarding the ‘Bedroom Tax’: R (on the application of Rutherford & Ors) v Secretary of State for Work and Pensions

There was much press coverage of two joined appeals to the Court of Appeal, which resulted in a finding that the so-called ‘Bedroom Tax’ was unlawfully discriminatory on the facts of each case.

However, the rulings are fact specific and do not make any wider finding that the bedroom tax regulations themselves are unlawful. 

In the first appeal, the grandparents of a severely disabled child had a spare room in which carers slept 2 nights a week.  The child needed overnight care which the grandparents provided 5 nights a week and carers provided 2 nights a week. Without the assistance of carers to provide regular respite care overnight, the grandparents would not have been able to cope and the child would have had to go into a residential home.  The regulations governing the bedroom tax specifically exempted disabled adults requiring overnight care but made no such provision for disabled children. The Court of Appeal found that this unlawfully discriminated, without reasonable justification, against disabled children, contrary to Article 14 ECHR. 

In the second appeal, a woman had a spare room which had been specially adapted into a secure panic room under the provisions of a government ‘Sanctuary Scheme’. Her former partner, the father of her child, had repeatedly harassed and threatened her on his release from jail following his conviction for attempted murder of her.  The Court of Appeal found that the application of the bedroom tax in these circumstances unlawfully discriminated, without reasonable justification, against women, as the victims of domestic violence, and the recipients of adapted accommodation under the sanctuary schemes, are overwhelmingly female. 

In each case the bedroom tax applied was in fact being paid by the local authority by way of a discretionary housing payment.  However, the availability of such discretionary payments was found not to justify the unlawful discrimination, particularly as it could not be demonstrated that such payments would always be available.

Permission to appeal to the Supreme Court has been granted and it may be that this case will be joined with other appeals on the wider lawfulness of the bedroom tax which are due to be heard by the Supreme Court imminently.  

Jane Clifton / 23rd Mar 2016


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