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


Learning lessons: we need to encourage more policy sharing and less innovation

Sophie Wilson from the Institute for Government argues that there is too much focus on innovation in public services, and the we should focus more on learning from, and expanding, ‘what works’.

We all like new things. Whether it’s the latest gadget or an app to switch your heating on remotely, innovations are exciting. And this is no different in public services. Countless innovation funds and piloting programmes encourage local areas to develop and test ideas ranging from government initiatives such as the Transformation Challenge Awards through to programmes led by the voluntary sector like those available to social entrepreneurs from UnLtd. Without funding for early stage ideas you don’t get things off the ground.

So while there’s no denying the importance of trying and testing new approaches to public services; the emphasis on innovation over duplication means local areas may risk repeating the same mistakes or focusing resources on challenges that have already been solved elsewhere. This is something picked up on in the Institute for Government’s paper Joining up public services around local, citizen needs  which highlighted how a limited sharing of ‘what works’ in different circumstances can mean that the lessons from effective practices are rarely built upon (see p.12). Barbara Young, formerly chief executive of Diabetes UK, has also consistently argued the need for more plagiarism in the voluntary sector. In this way, encouraging more areas to copy instead of create could be a route to efficiency savings as well as better services for citizens.

Blunt replication of programmes or strategies from one local area into another is unlikely to be the solution to the challenges facing public services today. However, there are opportunities in increasing the diffusion of effective programmes through the sharing of innovations, ideas and practice, and the subsequent adoption or adaption of these ideas in a new local area. It is unlikely that a programme can, or should, be scaled up and rolled out across the country in exactly the same way. Local areas are different and public services should be able to cater for this diversity as recognised by the Government and its devolution agenda. But, greater sharing between local areas around how they can implement a new programme, the barriers and enablers to doing this, the resources and capabilities needed, as well as links to useful contacts could help areas to shortcut parts of their design process and help to save time and money. Context matters. Nevertheless, applying what we already know and adapting this with a new environment in mind can support local areas to build upon existing practice and avoid reinventing the wheel.

In fact, local areas are already doing this; whether getting ideas from conferences, participating in professional networks like SOLACE, or independently setting up visits to areas that appear to be doing something interesting. But, this is not yet something that systematically occurs across local government; whether because of a distinct professional culture or cultures, transport links, misaligned incentives, a lack of time or one of a myriad of other factors.

In response, the Institute for Government are starting to think about how to encourage greater sharing of practice between local areas. This has begun with a look at some of the intermediary programmes and organisations that connect local areas with each other or with interesting practice and ideas such as the LGA peer challenges, the Audit Commission or the seven What Works Centres. We want to understand what limits local areas from sharing more frequently, and increase attention on the diffusion process itself as an important, under recognised means of supporting areas as they redesign or recommission services.

As is often pointed out, devolution provides an opportunity to innovate by designing services around local, citizen needs. But increasing localisation also increases the importance of finding effective ways of sharing practice between local areas to make sure learning spreads throughout the country. This is especially important in the context of tightening budgets and increasing demands. Copying from your neighbour may have been frowned upon in the classroom, but it is an essential part of designing a smarter state.

Sophie Wilson is a researcher at the Institute for Government. If you’re interested in hearing more or contributing to the research she is involved in, take a look at the IfG’s project page or get in touch with her at sophie.wilson@instituteforgovernment.org.uk

Managing Flooding Crises: the Need for Common Sense

In this article Ed Thompson considers ‘local resilience’ as understood from an emergency management perspective, in relation to recent and past flooding.

Almost on a yearly basis there seems to be a flooding crisis in some part of the UK, most recently the focus has been on parts of Northern England. The legislation that sets out responsibilities for preparedness and response in such emergencies goes back much further than Tory cuts to a New Labour government – operating with a very different ideology to the current Labour leadership.

The link between resilience and neoliberalism has been considered at length by acadmeics (see recent special edition and workshop coverage in Politics, and the launch of Resilience). Discussion has centred on ties between Darwinian ‘survival of the fittest’ in ecology (the source of resilience concepts, Holling, 1973), free markets and more recently in civil contingencies policy where resilience is taken to mean the ability of a system to absorb and recover from shocks. The emphasis of the Civil Contingencies Act 2004 is the delegation of public responsibilities to a local level (now without statutory regional collaboration after the demise of regions in 2010), and wherever possible to private businesses and individuals. This new era of delegated responsibility, including the general public and private sector being responsible for their own fate, is often presented under a banner of ‘responsibilization’ (Shamir, 2008) – in keeping with a neoliberal ideal of a small state which does not interfere with individual freedoms or responsibility.

There are at least two clear examples where resilience policy is contradictory. The first conflict can be seen in the implementation of ‘Emergency Preparedness’ Chapter 8 (the Cabinet Office, 2012) – the official guidance on implementing the Civil Contingencies Act. This places the duty to promote business continuity management (BCM) on local authorities, requiring the local public sector to undertake duties which encourage private (and voluntary) sector organizations to consider their own resilience.

“The Act requires local authorities to provide advice and assistance to those undertaking commercial activities and to voluntary organisations in their areas in relation to BCM in the event of emergencies (as defined in the Act). This activity is undertaken to ensure preparedness.”

These duties mean that while local businesses and voluntary sector organizations are responsible for themselves, local authorities are responsible for assisting and advising these organizations in preparing for extreme events. There is no clear measure for such activity, and little guidance as to how local authorities should go about this. CURA’s own Brahim Herbane (2011) finds great disparity in what advice is available in different parts of the country. It seems at odds with an ideal of personal and private responsibility to make the local state responsible for advising the private sector of their responsibilities.

Secondly, there are pragmatic considerations during extreme events. David Harvey (2005) presents the contradiction between the enduring hegemony of neoliberal policy while simultaneously having to preserve institutions such as the National Health Service (NHS) that hold affections from voters across the political spectrum.

As crisis events unfold we see the same pragmatism coming into effect with emergency management in the short term, bucking a trend of responsibilisation in keeping with neoliberalism which exists outside of the crisis. Under policy written while a crisis was not underway  there is no requirement for Local Authorities to issue sandbags in floods, indeed many local authorities hold very small stocks sufficient only to protect their own facilities. However, during crisis political rhetoric changes, a new situational logic of action dictates that those with the capability to obtain and distribute sandbags in effective quantities do so; and that we be empathetic to evacuated and flooded families. In 2014 political leadership very visibly changed tack on the issue of sandbags during floods:

I’ve told local councils they should not charge for sandbags in flood-hit areas – central government will pick up the cost. – David Cameron, Twitter – @David_cameron, 1:13pm, 14th Feb 2014.

During the same incident Brandon Lewis (then Under Secretary of State for the Department of Communities and Local Government) cited the Bellwin scheme as a means for LA’s to recover the cost of sandbags, and that costs should not be passed on to residents (Localgov.co.uk, 2014). The scheme allows local authorities (and some other public sector organizations) to recover 85% of an incidents cost once it exceeds 0.2% of their annual revenue budget (for Cumbria last year this was £1.27m.), though this has sometimes been flexed up to 100%.

What results from this is a policy of ‘responsibilisation’ of the private and voluntary sector organizations outside of emergencies and the abandonment of such policies during crisis events. During crises the responsibility is then passed on to Local Authorities (and other public sector organizations) to respond to the needs of those that are poorly protected – at a cost to the taxpayer. Local public sector actors are the squeezed middle, responsibility for handling crises is dumped upon them, without commensurate resources.

As Buchanan and Denyer explain, extreme events offer a period of transience in which fracture logics become apparent. The change from circumstances of stability to those of extreme events are an example of the dependence of neoliberal logics on a stable context, and crisis events (sudden contextual changes) bring the limitations of this policy logic into sharp relief. Common sense dictates the need to tax and spend for a cost effective and capable flood defence system.

Ed Thompson is a core member of CURA  and Vice Chancellor’s 2020 Lecturer at the Department for Strategic Management and Marketing at DMU