What does the latest Guidance tell us?

The coalition government has been put under extreme pressure as the implementation date for the ‘under-occupation’ or ‘bedroom tax’ regulations approached. The media have been full of stories of the impact on disabled people. The injustice of the legislation has been made graphically clear by the human stories. To try cut the ground from underneath this growing opposition the government has made a number of concessions. However, these are not as straight-forward as they have been presented. So who is excluded, and who isn’t? The Department of Work & Pensions has recently issued two pieces of Guidance for local authorities:

  • Circular HB/CTB A10/2013 deals with “Changes to the size criteria for approved foster carers and parents of armed forces personnel ”.
  • An ‘Urgent Bulletin’ HB/CTB U2/2013 deals with exclusions for disabled children following on from the government’s decision not to proceed with its appeal against a Court of Appeal judgement on May 15th in 2012.

Disabled tenants or children

The ‘under-occupation’ regulations originally had only one exemption for disabled people from having to pay. This was where an outside carer has to stay overnight, and they were ‘granted’ a bedroom so the tenants would not have to pay for the ‘spare’ room. However, a legal judgement has forced the government to introduce some changes. The Court of Appeal judgement of May 15th 2012 related to children in private rented accommodation. The Court unanimously decided that in the cases of Burnip, Trengrove and Gorry, the Local Housing Allowance size criteria “discriminate unlawfully” against the three appellants “on the grounds of disability” by not including provision to meet their need for an additional room.

The case of the first two of these (Burnip and Trengrove) related to overnight care. However, the exclusion did not and still does not apply to a carer within the family. So if a couple live in a two bedroom property, one of the couple acts as a carer and they have to sleep in separate rooms, one of them is still considered as ‘spare’ and they have to cover the cut in their housing benefit to pay the rent, in this case, with one ‘spare’ room, 14%.

The case of Gorry related to a child with severe disability who needed their own room, though the regulations would require them to share a room with a sibling.

Lord Justice McKay held that the claimants had established a ‘prima facie’ case of discrimination under Article 14 of the European Convention on Human Rights, and agreed with Mr Justice Henderson that the Secretary of State had failed to establish “objective and reasonable justification” for the discriminatory effect of the legislation.

The DWP decided to appeal against this judgement and was granted the right to do so on October 30th 2012. However, on March 12th Iain Duncan Smith decided to withdraw the appeal. With a number of legal cases in the pipeline the government obviously concluded that its prospects were not good. They have been under severe pressure with even traditional Tory supporting papers calling for the ‘bedroom tax’ to be dropped. As a result the government has come up with some concessions relating to disabled children, foster carers and tenants with children in the armed forces. The concession relating to foster carers only affects an estimated 5,000 households. The government doesn’t quote a figure for those affected by the concession parents with children in the armed forces but the numbers will be tiny. Combined, these two probably represent at most 1% of the total households subject to the ‘bedroom tax’. How many households with disabled children are exempted remains to be seen. However, they are not automatically excluded, and whether or not they are is something of a lottery depending upon the interpretation of their LA.

So what does the guidance say?

With the abandonment of the Appeal the DWP has said that from the date of the judgement on May 15th 2012, “local authorities should allow an extra bedroom for children who are unable to share because of their severe disabilities” according to the  “following the guidelines as set out in paragraphs 7 to 10 below”.

“7. When a claimant says that their children are unable to share a bedroom, it will be for LAs to satisfy themselves that this is the case, for example, a claim is likely to be supported by medical evidence and many children are likely to be in receipt of Disability Living Allowance (DLA) for their medical condition.”

So such a child is automatically granted their own room if they are on DLA? Not necessarily.

“In addition LAs must consider not only the nature and severity of the disability, but also the nature and frequency of care required during the night, and the extent and regularity of the disturbance to the sleep of the child who would normally be required to share the bedroom. In all cases this must come down to a matter of judgement on facts on each individual case.”

This appears to be problematic since it approaches the question from the angle of the impact on the other sibling rather than the disabled child. In the case of an autistic child the very idea of not having their own room is liable to cause major problems. As is well known changes to routine for autistic children can cause severe behavioural problems.

The DWP circular makes clear (point 10) to local authorities that “The Court of Appeal judgement is now considered to be case law and as such LAs are legally bound to apply the judgement.” The legal judgement “applies both to the LHA size criteria and the reduction of the spare room subsidy which applies from 1st April 2013.” Calling it a ‘spare room subsidy’ is a new development but in any case they mean the Housing benefit cut being introduced on that date.

This is a warning to Councils that they will have to defend their “judgement on facts” in each individual case, possibly in court. Since nobody is likely to take them to court for granting an exemption Councils can avoid the threat of legal action by a ‘liberal’ interpretation of the need for a child to have a separate bedroom.

A group of ten disabled and vulnerable children have launched a legal challenge to the under-occupation regulations as they are expected to share a room with siblings “despite having been assessed as needing their own room due to disabilities or because they are at risk of violence from a sibling, or because of the trauma they have experienced as a result of abuse and domestic violence.” Whether or not their case proceeds obviously depends on whether or not their Councils or Housing Associations decide they should now have a separate room.

Neither in the legislation nor the guidance is there any definition of “severe” disability.

The “Urgent Bulletin” is at pains to make the point that the judgement does not apply to disabled adults.

“8. It should be noted that the judgement does not provide for an extra bedroom in other circumstances, for example, where the claimant is one of a couple who is unable to share a bedroom or where an extra room is required for equipment  connected with their disability.”

So even if an adult cannot share a room because of a disability or medical condition they will be deemed to be ‘under-occupying’ and will have to pay regardless. The cases lodged by disabled adults include one relating to Charlotte Carmichael and her husband Jayson. She sleeps on a hospital mattress to ease bed sores caused by her spina bifida, while he uses a single bed in their smaller second room. But from April the new regulations would mean that they are under-occupying their specially adapted flat in Southport, Merseyside. They have been granted the right to go to Judicial Review.

Point 9 simply tells LAs that they should give notice of an end to the payment and that arrears “must also be paid as appropriate”.

Foster carers

Iain Duncan Smith has recently said that the government intended to exempt foster carers all along. This is untrue. An amendment to that effect was moved in the House of Lords but was overturned by the government in the Commons. All they did was to give an additional £5 million Discretionary Housing Payment to help this group. It was only as late as March 12th that he announced that the regulations would be amended to allow an additional room for foster carers. So they are now all covered? Only in part.

“If the claimant requires more than one additional room for foster children, they can apply for additional support through their housing costs through the Discretionary Housing Payments.”

So if a Foster Carer has more than one foster child the room that the second child is in will be deemed to be ‘spare’ and they will have to pay for it, unless they are able to get a Discretionary Housing Payment. Even if they are granted this there is no guarantee that it will last for a year, and if the pot is empty then they will have to pay the 14%.

Shared care of children

One of the groups of people who are subject to the ‘bedroom tax’ are parents who share responsibilities for children and would typically have them stay with them for part of the week, where their marriage or partnership has broken up. One of the founders of the Anti-Bedroom Tax Facebook page was a man from Inverness who was given a 3 bedroom house by his Council so that he was able to have his children stay with him at weekends. Since he only ‘qualifies’ for 1 bedroom he will be unable to have his children stay with him now. This is fairly typical of the impact on this group.

For the purposes of the legislation it will be determined that a child has only one parent who provides the “main home”. They will be treated as living with the parent who receives the benefit for them. This will obviously be disruptive of relations and is likely to have an emotional impact on the development of the children.

The organisation Liberty is seeking judicial review on behalf of three families facing a similar situation:

  • Simon Cohen from Gloucestershire, whose 12 year old son lives with him 4 days a week in his two bedroom house. Under the regulations his son will not be considered part of his household. His room will therefore be deemed ‘unoccupied’.
  • Mark Hutchinson, whose 7 year old daughter and eight year old step-son stay with him at weekends and bank holidays.
  • Kim Cotton, whose eleven year old daughter and eight year old son live with her every other week.

Liberty is arguing that the regulations are discriminatory and are in breach of the European Convention on Human Rights.

Mixed age couples

Currently couples where one person is of pension age will not face having to pay for a ‘spare’ bedroom. But under Universal Credit, to be excluded they will both have to be in receipt of Pension Credit. From October 2013 a couple would be treated as of ‘working age’ if one of them was under the Pension Credit age. So they will have to pay for any ‘spare’ rooms.

Minister Steve Webb was asked if a mixed age couple would be subject to the regulation after the introduction of Universal Credit. His somewhat slippery answer was this:

“More or less, so they will not suffer it prior to universal credit; if they are already in the system and protected by the time Universal Credit comes in, we will not go back, as it were, unless there is a major change of circumstance, but future claims will be treated in the opposite way.”

In other words new claimants where one partner is not of pension credit age will be treated as being of “working age” and will have to pay for any ‘spare’ rooms. Existing mixed age claimants won’t be “unless there is a major change of circumstance”!

UC is supposed to be brought in in April, but the difficulties the government has had, led them to bring in trials in 4 areas from April. We have just heard that three of these trials have been put back to July. However, the government is “confident” that UC will be brought in in October. Whether or not it will reply to your local area remains to be seen since it will be so to speak staggered in (or maybe staggering), with the whole country supposedly covered by it in 2017.

How many affected?

The government estimate is that 660,000 households will be affected, of which 540,000 have one ‘spare’ bedroom and 120,000 two or more. The average weekly benefit loss of the first group is expected to be £12 a week and £22 for the second, giving an overall average of £14. Around 40,000 recipients of partial benefit (their earnings are ‘too high’ to receive the full amount) are expected to lose all their HB.

The National Housing Federation estimates that around 108,000 households in properties with adaptations for their disabilities will be affected.

Discretionary Housing Payment

The DHP provided for Councils in relation to the ‘social  size criteria’ is £30 million. According to the government’s own estimate this will provide support only for 40,000 households. The £30 million was announced when the government refused to accept a Lords amendment which would have excluded tenants with adapted homes to take account of their disability and foster carers. £25 million was directed at allowing this first group to remain in their homes, though they had ‘spare’ bedrooms. £5 million was directed at foster carers who “need to keep a room” when they are in between fostering. The government estimated this would provide support for 35,000 in wheelchairs and 5,000 foster carers. However, the money was not ring-fenced and would be used according to the discretion of Councils.

The National Audit Office calculated that the money provided for the DHP overall represented 6% of the government’s estimate of savings from all their ‘welfare reforms’, including the ‘benefit cap’.

Councils will have to record the decisions they have made in relation to DHP and provide a six monthly return to the DWP.

So who is left?

There has been all manner of inaccurate information about who is excluded from having to pay the ‘bedroom tax’. For instance Swindon MP Robert Buckland recently wrote that ‘carers for the disabled’ will be exempt. This is not true. Disabled adults who have to sleep in a separate room to their partner will still have to pay for a ‘spare’ room.

The Prime Minister said in Parliament that ‘severely disabled children’ are excluded. This is not true as we have seen above. Some might be but it depends upon how Councils interpret of the legislation and the guidance. And the impact on the other child has to be taken account of.

Existing mixed age couples appear to be OK provided that the government doesn’t decide that there is “a major change of circumstance”. It’s not clear what this means but I guess it could mean a deterioration in the public finances.

The estimate of those affected who are not disabled was 240,000. These include people who are on Job Seekers Allowance who are expected to live on £71 a week. In many areas they face paying part of their Council tax as well as 14% or 25% of their rent. So those with one ‘spare’ room will have to pay 20% or more of their income. For those with two ‘spare’ rooms it will typically be more than 33% of their income. At the same time that the government is impoverishing these people they have just announced that couples with a joint income of up to £300,000 will have a subsidy of £1,200 for childcare; a similar sum that some tenants will have cut from their HB!

Tenants whose children are away at college will be exempt from paying for a ‘spare’ room, provided that the child has not left home, i.e. their home address remains the same and they return home during the holidays.

Martin Wicks

April 1st