The newspaper front pages have had other things to occupy them in the past few days, so you might well have missed an important Supreme Court decision connected to one of this year’s hot political potatoes: the spare room subsidy or, as its critics have labelled it, the ‘bedroom tax’.
Effective from April 2013, this Regulation reduces the amount of benefit payable to those with a ‘spare room’. The controversial cases, legally at least, were not those where, for example, a child had grown up and moved on, but where a protected characteristic, such as a disability, created the need for an additional room.
In such cases, was the application of the Regulation indirectly discriminatory? The Supreme Court’s conclusion was that where it had an unequal effect on those with a disability in particular and the Regulation could indeed be operated in a discriminatory fashion.
The Supreme Court considered this question in respect of a number of conjoined cases and specifically whether a given deduction from benefits was compatible with Articles 8 and 14 of the European Convention, Article 1 Protocol 1 of the Convention, and the Equality Act 2010.
In doing so it explored what the duties should be of public bodies (by s.149) in such cases, when protected characteristics of disability and sex are involved.
In one of the conjoined cases, the family required an extra room for a disabled child’s carer. In another, the number of rooms required reflected the fact that a disability prevented the couple from sharing their bedroom.
In each case, the application of a discount to Housing Benefit was found to be unlawful and an infringement upon convention rights. Lord Toulson saw ‘no sensible reason’ to distinguish between these reasons for requiring the ‘extra’ room.
The Court considered whether elements of the Regulation were ‘manifestly without reasonable foundation’, and rejected an argument that ‘weighty reasons’ were required in disability cases.
It also considered that where there was medical evidence supporting the requirement for a second room, the possibility that a discretionary housing payment might also be made was not enough. The Regulations should, their Lordships found, afford an exemption without requiring that recourse.
The majority concluded however that the public sector equality duty had not been breached in any of these cases.
In another of the cases conjoined in this appeal, the applicant stated she required the rooms not because of the size of the property but because she had acquired her property as a safe haven against domestic violence. Lady Hale and Lord Carnworth dissented because, unlike the majority of the panel, they took the view that the application of the Regulations in this case constituted a form of sex discrimination.
It appears, then, that the Regulation will have to be amended to provide an exception in those cases where there is clear justification on grounds of disability.
The impact may therefore prove to be widespread, particularly for families with a disabled member requiring care. The state will have to inject a degree of flexibility into the way in which its policy is applied, which is enormously significant.
Graeme Kirk / 11th Nov 2016
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