Today’s bedroom tax judgment is disappointing in its outcome for tenants and social landlords and local councils. How LJ Laws reached the outcome is a complex issue looking at for example what type of discrimination (direct, indirect or Thlimmenos) is at play or what proportional or justification and many other legalistic interpretations of lay terms means.
Simply, the lay person sees the term discrimination in one dimension and often at a very superficial level only – the bedroom tax is unfair or immoral and therefore it discriminates. Yet the courts see discrimination in its type and in its intent and in its construction as well as the applicability of other past legal cases and with reference to applicable or not other conventions; the courts by contrast take a highly complex view of discrimination that the lay person often only sees as being unfair or immoral.
Yet one thing is clear and that is these ten cases looked at discrimination in regards to disability – and this is where I find huge fault in the case as disability is extremely narrowly defined and considered.
The decision limits disability to two broad issues: –
(a) disability with regard to physical adaptations to a property, and
(b) physical disability in the main but with negligible reference to learning and mental disabilities and no reference or discussion at all about sensory disabilities of blind, deaf, D/deaf and deafblind.
To explain (a) the case limited the legal decision to 35,000 cases where a social housing property has been adapted for physical disabilities yet we know and all accept the view that 420,000 bedroom tax households contain a disability. In simple terms, this decision reduced its investigation of discrimination towards disabilities to one twelfth of the actual level, address a narrow 35,000 cases rather than 420,000 or to just 8.33% of the bedroom tax disabled households.
To put that into context yesterday I said that Knowsley have been given DHP funding for just 1 in every 44 cases and of those 44 cases statistically 28 will have a disability.
So 27 out of every 28 disabled claims for a DHP will be refused there – yet the judge by this extremely narrow view of disabled found this was proportionate and anything but the DHP approach was unnecessary micro-managing!!
The indifferent consideration or learning and mental disabilities and the total absence of any consideration of sensory disability at (b) should be noticed and given far more consideration. Whether this is because the mental and learning disability factors were framed by the claimant lawyers as of lesser importance and as a mere adjunct to the higher priority physical disability arguments I can only speculate. Yet even the (superficial?) lay reader can recognise that moving (or downsizing) is stressful for the ‘able bodied’ and much worse for anyone with the support needs an individual with mental or learning disabilities has in being moved away form support networks and the familiar.
Social media sites are full of distraught tenants and activists who wrongly believed these ten cases were the courts deciding the bedroom tax was unlawful or that the way the bedroom tax treated disabled persons was unlawful, or any other such simplistic dimension. Yet I outline above, in simplistic yet factual terms, this court case looked at just 8% of so of disabled bedroom tax cases and in that light decided that the DHP policy of the government was proportionate – the strong condemnation of IDS’s extreme tardiness in issuing policy on disabled children and allowing DHP budgets to take the strain in a completely arbitrary way excepted.
One final point I make is the disability lobby and its power. By that I mean all the disability lobby groups who, reasonable in part due to the Burnip et al judgment of May 2012, effectively hijacked the bedroom tax challenge. The bedroom tax and its ‘discriminatory’ treatment of disabled persons became one and the same thing and two-thirds of bedroom tax cases are disabled and other such statements became commonplace and the media focused its attention on these human interest stories and the bedroom tax became all about disability.
It isn’t and never has been that and I take my hat off to the disability lobbies as at least they got off their backsides and have challenged it, unlike the social landlords or local councils for example and especially unlike the Labour Party who are scared shitless to challenge any welfare policy in case they are portrayed as the party of more welfare.
The bedroom tax and other welfare reforms are a direct attack on social housing and the social housing model and also a massive transfer of financial risk to social landlords and to local government. The (working age) tenant is a mere pawn and scrounger who receives benefit and therefore is blamed remorselessly by the coalition and by the opposition. The bedroom tax (and the benefit cap for which most disabled are exempt) are attacks on housing and social housing in particular and not attacks on disability per se, though disabled cases do make up a huge part of bedroom tax cases.
Social landlords hoping for some new exemptions to the bedroom tax which would have reduced their financial exposure will also be distraught with this ruling as their current huge arrears caused by the bedroom tax can only get worse. Their lack of challenge to the bedroom tax, even economically viable challenges such as reclassification will now have to be evaluated carefully, and all other challenges will have to be stepped up which the conservative social landlords never do and now they have to.
Social landlords have long taken the line of excuse for their lack of challenge to be the government imposed this unfair bedroom tax and it’s not our doing. Yet today’s ruling sees a court say the bedroom tax IS fair and so social landlords can no longer rely on that excuse for their lack of challenge.
Though I doubt social landlords will grow a set or find their backbone!
It means tenants will be expecting landlords to challenge the bedroom tax more and more openly. It also means more empty larger properties for social landlords to fill and more and more tenants will abandon properties too and it means social landlords will have more properties which are difficult to let. Some more landlords will tinker around the edges of reclassification to stop these difficult to let properties becoming impossible to let – the real issue behind the miniscule property reclassification of bedrooms KHT started and most recently with Leeds a some income is better than none at all, yet all social landlords need to look at reclassifying all of their properties as it is in their best financial interests to do so.
Local councils, even Tory local councils, will know today’s ruling will lead to more evictions and more homeless presentations and of course hugely increased costs to local councils. This is on top of the bedroom tax taking millions of pounds out of the local economy
Procedural vs. Moral challenges
From the beginning the challenges to the bedroom policy can be categorised into 3 types:-
(a) Legal – think of the Govan Toolkit
(b) Disability – partly legal too but DPAC and others
(c) Procedural – e.g. appealing the bedroom tax HB decision
We can see from today’s ruling that types (a) and (b) have not produce the desired results, as least yet as lawyers have already stared they will appeal. This leaves type (c) or appealing the HB decisions and specifically how each HB officer in each local council took the decision with the processes they undertook being as yet untested.
Read today’s judgement and the judge has taken what has to be a subjective view of what is justified, what is proportionate and what is discriminatory. All such inherently subjective legal views can and will be challenged as the lawyers say here.
Yet a procedural challenge as to how an individual HB officer took a bedroom tax decision is largely objective. It is accepted that the HB Officer had to decide whether each case had a spare bedroom or not. To do that the HBO had to decide what a bedroom is and how many bedrooms a property has – the twin necessary decisions to make the overall determination to impose the bedroom tax deduction. When a court looks at whether a HBO did that it is an objective not subjective issue, it is largely a simple case of yes or no.
The judgment covers this in paragraphs 9 and 10 and in other places. Yet it also strongly strengthens the arguments I have made re appealing the HB decision making process when the judgment says at 90: –
90. It is plainly right (and uncontested) that a Departmental circular is not a lawful vehicle with which to prescribe the means of calculating the AMHB for any class of case. That can only be done by secondary legislation.
So if the U2/2013 HB circular is not a lawful vehicle to prescribe the maximum housing benefit then the HB circular A4 of 2012 it not sufficient for a HBO to rely on the second sentence of paragraph 12 of that circular when it says: –
12. We will not be defining what we mean by a bedroom in legislation and there is no definition of a minimum bedroom size set out in regulations. It will be up to the landlord to accurately describe the property in line with the actual rent charged.
It is NOT up to the landlord to decide how many bedrooms a property has as I have always maintained, it is up to and ONLY the decision of the HBO.
If it is accepted too that a HB circular is not sufficient to base a decision upon and THE central decision and ONLY way the bedroom tax can be imposed is if a bedroom IS defined, then the A4/2012 guidance is legally not fit for a HBO or any council to rely upon it for the ease of administrative cost approach they adopted in simply believing the landlords word on the number of bedrooms.
Paragraph 90 of this judgment strongly states that the DWP need to prescribe what a bedroom is and to define a bedroom – a position which the DWP has ruled out and stubbornly ruled out in the bedroom tax decision making process at paragraph 12 of the A4 of 2012.
The bedroom tax challenge is far from over after today’s unfortunate ruling. It may even be positive in that this negative ruling will force the hand of social landlords to fully evaluate and consider reclassification and force the bedroom tax tenants hand to appeal the HB decision to impose the bedroom tax in the first place with a procedural challenge that I advocated and promoted all along.