Disability and the Bedroom Tax: Discretionary Payments Violate Statutory Rights

The Guardian reported today that the Appeal Court have ruled the Bedroom Tax unlawful with respect to two cases – a victim of domestic violence “A”, and a severely disabled teenager, Warren Todd.   The outcome is an important stepping-stone in the campaign against the Bedroom Tax, but the government has been given leave to appeal to the Supreme Court.

The Bedroom Tax is a benefit sanction against those deemed by the Department of Work and Pensions to have a spare bedroom. Those affected have either to move to a smaller property, face housing benefit deductions or rely on a local authority subsidy to make up the difference. There have been a number of cases of disabled people being threatened with the loss of their homes. In the case of Warren Todd, the DWP argued that his family’s challenge to the Bedroom Tax on grounds of discrimination lacked credibility, because local authorities can make Discretionary Housing Payments (DHPs) to anyone sanctioned if they see merit in the case. An earlier High Court ruling accepted this logic, finding that the responsible authority, Pembrokeshire County Council, had covered the rental shortfall through a DHP, and there was no evidence to suggest it would stop doing so in future.

The reasons for the Court of Appeal decision are not yet completely clear – it ruled that the Secretary of State had failed to justify “admitted discrimination”. However, the ruling does suggest that the argument over DHPs is vitally important. Does the UK Government have a duty to recognize the rights of disabled people, or can it be left to the “discretion” of local authorities? How, logically, can a “discretionary” payment be construed as upholding statutory rights of disabled people not to suffer discrimination?

It is plainly wrong in principle to suggest – as the High Court did – that statutory rights can ever be upheld on a “discretionary” basis. Moreover, the High Court ruling ignored two important facts about DHPs, highlighted by our ESRC funded austerity research. First, there is no guarantee from Government that discretionary grants to help councils manage the transition to new benefit regimes will be retained long-term – local officials certainly think of them as bridging funds. Second, we know that some authorities attach conditions to DHP, meaning that a “spare room” is subsidized only if the recipient shows willing to move to a smaller property. The bedroom tax remains a looming threat for anyone in these circumstances.

DHPs cannot substitute for statutory rights in theory, and our research shows that they cannot do so in practice either. The Court of Appeal appears to recognize this, and if the government launches a challenge, disability rights in this country will depend on the Supreme Court upholding its eminently sensible ruling.

Professor Jonathan Davies is Director of the Centre for the Urban Research on Austerity

 

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