bedroomTen families of people with disabilities have lost a High Court challenge to the government’s spare room subsidy policy – or bedroom tax – but plan to appeal.

The judges ruled that the policy does not unlawfully discriminate against people with disabilities in social housing, as the families taking the action had claimed.

Since April 1, households deemed to have 1 spare bedroom have had their housing benefit reduced by 14% and those deemed to have 2 or more spare bedrooms have had it by 25%.

However, the claimants – including families of people with learning disabilities – argued that these new rules discriminate against people with disabilities when they cannot share a bedroom or need extra rooms for equipment or support related to their disability. 

While the High Court recognised that the bedroom tax would discriminate against some disabled people, it accepted the Department of Work and Pension’s (DWP) argument that it had recognised this and provided mitigation, in the form of £25 million in Discretionary Housing Payment. The Judge also accepted that DWP had considered the needs of disabled people and had not breached the public sector equality duty.

Disabled children and bedroom sharing

However, the High Court did make an exception in cases of disabled children unable to share a bedroom because of their disabilities.

The Court found that the Secretary of State, Iain Duncan Smith, has been aware that the law must be changed to provide for disabled children since May 2012, and criticised his failure to make regulations to provide for them. Lord Justice Laws said that the current state of affairs “cannot be allowed to continue”.

The Judge said the government must now make regulations “very speedily” to show that there should be “no deduction of housing benefit where an extra bedroom is required for children who are unable to share because of their disabilities.”

However, for adults in the same situation no such exemption has been made. Lawyers for adults with disabilities said that they believe this cannot be right and that they should be entitled to full housing benefit for the accommodation they actually need.

Reaction to the verdict

Rebekah Carrier of Hopkin Murray Beskine, one of the three law firms representing the claimants, said: “The Government’s position in relation to disabled children is incomprehensible. Fourteen months ago (in May 2012) the Court of Appeal held that the Secretary of State was discriminating against disabled children who need to share a bedroom because of their disabilities, yet by February 2013 when these proceedings were issued no action had been taken.

“The Prime Minister then told the House of Commons in March that disabled children were exempt, when this was plainly not the case. When he was questioned the Government rushed out a circular to local authorities, which suggested that the rule may not apply to some disabled children; yet the Government continued to fight this case. It’s no wonder local authorities and affected children and families are confused.

“We are pleased that the Court has recognised that the current situation is not acceptable and that the government must act quickly. We are disappointed however that the government has delayed for so long already and is still foot-dragging. Until it is absolutely clear that these claimant families and others like them will not have their benefit cut on the basis that they live or hope to live in homes which meet their children’s needs, these claimants, like the disabled adults, have no choice but to appeal.”

Richard Stein from the Human Rights team at fellow law firm Leigh Day, said: “This is a most disappointing result. We will be seeking an urgent appeal to the Court of Appeal. Many people with disabilities including our clients may lose their homes unless the law is changed. Their lives are already difficult enough without the fear of losing their accommodation which has been provided specifically to meet their exceptional needs.”

Emma Burgess from Public Law Solicitors said: “The Government has failed to recognise that many people with disabilities will not be able to make up the shortfall in rent by working or taking in a lodger; and many will not be able to move due to the nature of their disabilities. The Discretionary Housing Payment Scheme ‘safety-net’ relied on by the government is inadequate to plug the gap.

“A July survey by the Papworth Trust, backed by the National Housing Federation , said ‘9 out of 10 disabled people are cutting back on food or bills to pay the bedroom tax if they are refused a safety-net housing payment’.

“Left unchanged these measures will see disabled people facing eviction and homelessness.”

A spokesperson for the DWP said: “We are pleased to learn that the court has found in our favour and agreed that we have fulfilled our equality duties to disabled people.

“Reform of housing benefit in the social sector is essential, so the taxpayer does not pay for people’s extra bedrooms. But we have ensured extra discretionary housing support is in place to help those who need it and today we have announced a further £35 million of funding to councils to aid residents.”

Emma Harrison, assistant director of external relations at learning disability Mencap, welcomed the part of the ruling requiring the government to put disabled childrens’ right to an extra bedroom into regulation. “However, adult couples with a learning disability, many of whom have additional physical and health needs, will be left struggling to understand how the court can recognise childrens' needs but not the needs of adults in the same situation, who need a bedroom of their own for reasons relating to their disability.

“We welcome the campaigners’ determination to take the issue to the Court of Appeal and hope it will recognise how the ‘bedroom tax’ discriminates against disabled adults as well as children.

“Also today the government has announced a further £30 million of discretionary housing payments. This is a sticking plaster that will not stop families hit by the bedroom tax from being plunged into poverty, with the government's own estimates showing 420,000 disabled people will be hit.”