‘Shifting the Place of Social Security:’ The ‘Bedroom Tax’, Discrimination and Discretionary Housing Payments

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  R. (on the application of MA) v Secretary of State for Work and Pensions [2013] EWHC 2213 (QB) is the latest instalment in the on-going legal challenges under Judicial Review to the Social Sector Size Criteria Rules (SSSC) – a policy enduringly
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  Final Paper available in the Journal of Social Welfare and Family Law (2014) 36(1), 85-87 http://www.tandfonline.com/doi/abs/10.1080/09649069.2014.886883#.VTeHm51waDY  CASES ‘Shifting the Place of Social Security:’   The ‘Bedroom Tax’, Discrimination and Discretionary Housing Payments Jed Meers Phd Candidate, University of York, UK Keywords: discrimination; discretionary housing payments; social sector size criteria; social housing; high policy  R. (on the application of MA)  v Secretary of State for Work and Pensions  [2013] EWHC 2213 (QB) is the latest instalment in the on-going legal challenges under Judicial Review to the Social Sector Size Criteria Rules (SSSC)  –    a policy enduringly branded the ‘Bedroom Tax’ by its critics and less - enduringly defended as the ‘removal of the Spare Room Subsidy’ by its supporters. The legislative change is found under reg.B13 in the amended Housing Benefit Regulations 2006 (SI 213), 1  which in April 2013 introduced a reduction in Housing Benefit for those in the Social Rented Sector deemed to be ‘ under- occupying’  their homes. The policy has proved controversial, and a number of concessions have been granted for certain groups, such as such as those requiring ‘overnight carers’  (reg.B13(6)), those on service in the armed forces (reg.B13(6),(7)) and, following  Burnip  v  Birmingham City Council [2012] EWCA Civ 629; [2013] H.L.R. 1, those with children who are unable to share a bedroom due to disability. The present case was brought on behalf of ten adult claimants who were said to be ‘ typical of those who are adversely affected by these changes for reasons relating to disability ’  (para. 3), and their individual facts cover a broad spectrum of difficult circumstances which have followed the introduction of the SSSC. They do not lend themselves easily to summary, but all required what would be termed an ‘extra’ be droom under the confines of the SSSC by reason of a disability in the household and fell outside of current exemptions.  The claimants contended that: (i) regulation B13 was unlawfully discriminatory contrary to Art.14, and (ii) that the Secretary of State had violated the Public Sector Equality Duty (PSED) under s.149 of the Equality Act 2010. Birmingham City Council and Shelter (as an interested party and an intervener respectively), contended that: (i) discretionary housing payments (DHPs) were not sufficient to redress the discriminatory impact of B13, and (ii) the Secretary of State had failed to amend the Housing Benefit Regulations 2006 to comply with  Burnip . The claims were dismissed. The Court accepted that the SSSC discriminated against the claimants, but held that this discrimination was justified and therefore lawful. In following  Humphreys  v  Revenue and Customs Commissioners  [2012] UKSC 18, [2012] 1 W.L.R. 1545 and  Burnip , Laws LJ contended that the case was ‘best regarded…as an i nstance of Thlimmenos discrimination’  (para. 48)  –   namely, introducing the SSSC had contravened Art.14 by failing to treat differently persons whose situations are significantly different. The fact that it was not possible to define the class of affected persons precisely, as was the case in  Burnip , did not pull the discrimination outside of the sphere of Art.14. Rather, the key issue at stake was whether the discrimination was justifiable and proportionate. In light of the multi-faceted motivation behind the  policy, Laws LJ held the SSSC to be an area of ‘ high pol icy’, with a ‘strategic aspiration to shift the place of social security support in society ’  (para. 58). In applying  Humphreys , the test was therefore whether the rationale behind the SSSC was ‘manifestly   without reasonable foundation’  (para. 60). At this point, the Court aligned the justification of the discrimination under Art.14 and the requirements of the PSED, stating that ‘ both demand an informed and conscientious appreciation of the difficulties facing the persons or group adversely affected by the prospective measure ’  (para. 69). The Court held that the Secretary of State had sufficiently considered the impact the SSSC would have, and that the policy was not without reasonable foundation. The provision of DHP funding alone was a proportionate response and the criticisms made by the claimants on this front amounted to ‘an attempt to persuade the court to 'micro -manage' the policy-making process ’  (para. 86). The Court took a dim view of the Secretary of State’s reliance on a circular to implement  the decision in  Burnip , stating that he ‘ has no business considering whether to introduce regulations to conform [housing benefit] provision with the judgment…He is obliged to do so’  (para. 91). There are a number of issues within the judgment which are likely to excite academic interest and legal dispute. The key dilemma is how an Art.14 challenge in  Burnip , based on provisions ‘equivalent to B13’  (para. 14), can be successful where the present case has failed. In other words, why are households with children who cannot share a room by reason of a disability exempted, when households with adults in the same position are not?  The present case was distinguished from  Burnip   on the basis of a lack of a ‘discrete group’ suffering unlawful discrimination, ‘ which can be identified in practical and objective terms and sufficiently differentiated from other groups equally in need of extra space but for other reasons’  (para. 88). The absence of a clear demarcated class of affected persons did not bring the case outside of the sphere of Art.14, but it did allow Laws LJ to take a different approach from  Burnip . It is suggested that there are two elements which pulled Laws LJ away from extending the exemption. The first element was the handling of DHPs, which are a temporary financial support distributed by Local Authorities on a discretionary basis to those who are deemed to require assistance with their housing costs. 2  In the present case, the Court ascribed these a palliative effect, supporting the premise that the Government was acting proportionately by increasing the amount of money available for DHPs. This approach sits at odds with the judgment of Henderson J in  Burnip , where DHPs were derided on multiple groun ds: ‘their duration was unpredictable; they were payable from a capped fund; and their amount …could not be relied upon’  (  Burnip , para. 46). In short, the discretionary nature of DHPs was an antithesis to the stability and benefits provided by the home, ‘pa rticularly so in the case of a severely disabled person ’  (  Burnip , para. 47). Consequently, Henderson J. concluded that ‘they cannot come anywhere near providing an adequate justification for the discrimination in  cases of the present type ’  (  Burnip , para.46). This tension is indicative of the confused position of these discretionary payments. The Department for Work and Pensions has stretched the role of DHPs away from its previous function as a ‘very small scheme’  (Kemp 2007, p. 113) not designed to ‘ make up for reductions in benefit brought about by sanctions ’  (Walker and Niner 2005, p .51), to being the central pillar through which the Government attempts to mitigate the impact of their welfare reform agenda  –   particularly benefit penalties under the SSSC. The role of DHPs, and their ability to weigh in favour of proportionality, is an issue which is likely to feature in the planned appeal. The second element was the clear view that the case was one of ‘high policy’ (para. 58). Laws LJ explicitly acknowledged an undercurrent within the SSSC that aims not just to ‘save public funds, but also to shift the place of social security support in soc iety’ (para. 65). This is a significant recognition of the ‘direction of travel on welfare reform in England’ (Robinson 2013, p. 1502), which casts the SSSC firmly as an area of ‘substance’ rather than ‘procedure’ and consequently warranting a high level of judicial restraint. The test in asking whether the policy rationale of the SSSC was ‘manifestly without reasonable foundation’ reflects the high level of discretion afforded to the Secretary of State by the Court, which resulted in a DHP scheme (which was treated as little more than a triviality in  Burnip )   forming the basis of a proportionate approach to the difficulties experienced by the claimants in this case.  T his is ‘not the end of the road’  (Bates 2013, p. 115). The claimants are due to be heard in the Court of Appeal in early 2014, a year which will bring further challenges under Judicial Review and the likelihood of increased activity in the County Courts as the impact of the SSSC continues to bite its tenants and landlords. On the issue of compliance with  Burnip , at the time of writing, representatives of the claimants had been notified that legislation exempting disabled children who are unable to share a bedroom following the SSSC is shortly to be laid before Parliament, and is due to come into force in December 2013 (Hopkin Murray Beskine Solicitors, 2013). Notes 1  Amended by the Housing Benefit (Amendment) Regulations 2012 (SI 3040) 2 Discretionary Financial Assistance Regulations 2001, S.I. 2001/1167 and Discretionary Housing Payments (Grants) Order 2001, S.I. 2001/2340  References Bates, J., 2013. The bedroom tax: The first six months . Journal of Housing Law , 16 (6), 113-118. Hopkin Murray Beskine Solicitors, 2013. Disabled Children Now Exempt from the 'Bedroom Tax' DWP Amends its Policy [press release] 01 November 2013. Available at: <http://www.hmbsolicitors.co.uk/news/category/item/index.cfm?asset_id=1547> [Accessed 01 November 2013]. Kemp, P., 2007.  Housing Allowances in Comparative Perspective . Bristol: The Policy Press Niner, P. and Walker, B., 2005. The Use of Discretion in a Rule-bound Service: Housing Benefit Administration and the Introduction of Discretionary Housing Payments in Great Britain. Public  Administration , 83 (1), 47-66. Robinson, D., 2013. Social Housing in England: Testing the Logics of Reform. Urban Studies , 50 (8), 1489-1504.
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