(1) Susan Rutherford, (2) Paul Rutherford, and (3) Warren Todd by his litigation friend Susan Rutherford v Secretary of State for Work and Pensions Pembrokeshire County Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 30 May 2014 |
| Neutral Citation | [2014] EWHC 1631 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 May 2014 |
| Docket Number | Case No: CO/12841/2013 |
[2014] EWHC 1631 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Stuart-Smith
Case No: CO/12841/2013
and
Richard Drabble QC and Tom Royston (instructed by Child Poverty Action Group) for the Claimant
Clive Sheldon QC and Gemma White (instructed by Treasury Solicitor' Department) for the Defendant
Hearing date: Wednesday 14 May 2014
Introduction
The Claimants wish to challenge the lawfulness of the Housing Benefit (Amendment) Regulations 2012 ("the 2012 Regulations"), which were made by the Secretary of State on 3 December 2012, having been laid in draft before Parliament and approved by affirmative resolution of each House.
Proceedings were issued on 24 September 2013. This judgment is the result of a rolled up hearing on 14 May 2014. At the hearing the Claimants and the Defendant were represented by Leading and Junior Counsel. The interested party, Pembrokeshire County Council, has taken no part in the proceedings and was not represented at the hearing.
For the reasons set out below, I grant permission but dismiss the application.
The Factual Background
The Scheme
The 2012 Regulations are part of the Housing Benefit ("HB") scheme which was introduced (and subsequently amended) by the Coalition Government in its attempts to reduce the budget deficit at a time of acute financial stringency. Although colloquially referred to as the "bedroom tax", the scheme operates by reducing the amount of HB payable where rented accommodation in the private or social sector is assessed as being under-occupied. The general nature of the scheme and its specific provisions have recently been described and considered by the Court of Appeal in R (MA and others) v Secretary of State for Work and Pensions and Others [2014] EWCA Civ 13, which is necessary reading for anyone who wishes to understand the political and legislative background to this claim. I gratefully refer to and adopt [1]–[12] and [15]–[36] of the judgment of Lord Dyson MR (with whom Longmore and Rimer LJJ agreed) without setting them out again here. Further details of the evolution of the scheme may be found in the judgment of Laws LJ in the Divisional Court at [2013] EWHC 2213 (QB) at [20]–[34], which should also be taken as read.
At this stage it is only necessary to recapitulate that the scheme has two elements. The first is that the 2012 Regulations reduce the eligible rent for the purposes of calculating HB where the number of bedrooms exceeds a number established by reference to the criteria set out in Regulation B13. The second element is the availability of Discretionary Housing Payments ("DHPs") which are available on application to the local authority (in this case Pembrokeshire). As a matter of governmental policy, it was decided that DHPs were a more flexible and preferable means by which to cater for various deserving cases rather than attempting to identify and define in advance all possible exemptions from the Regulations. Two of the categories that were expressly considered when deciding whether to use the mechanism of exemptions or of DHPs were, first, cases where homes had been specifically adapted for the current occupants and, second, cases where a child was disabled and the disability gave rise to a need for additional space. As outlined in the Equality Impact Assessment carried out in November 2010 by the DWP, DHPs were to be available where a person is entitled to HB or Council Tax Benefit and "are intended to make up shortfalls in entitlement to benefit where the local authority considers that the person concerned is in need of further help with their housing needs."
The Regulations which introduced an extra bedroom for an overnight carer in the private sector ("the Housing Benefit (Amendment) Regulations 2010"), were referred to the Social Security Advisory Committee, which did not make any recommendations in respect of extending the definition of a person who requires overnight care to cover children. They were also referred to the Work and Pensions' Committee, which recommended that the provision be extended to cover disabled children in a similar position. The Government's response to this recommendation, published in March 2011, was:
"The Government welcomes the Committee's endorsement of the policy to introduce an extra bedroom for non-resident carers. The Government's decision to acknowledge the need for an extra room for these carers within the size criteria for Housing Benefit has to be taken in the context of the tight fiscal climate and the priority this relatively small group has been afforded. It recognises that funding for this particular need has in the past been met through several different sources such as social services and Discretionary Housing Payments. The presence of an overnight carer allows these individuals to live independently and the change simplifies and clarifies the funding arrangements.
Representations made to the Department have mainly concerned people who need help to live on their own. The move away from residential accommodation to independent living has seen an increase in people with more intense care needs requiring this sort of assistance. Where care is required for a child this is more often provided from within the household. Housing Benefit is not designed to meet every individual circumstance and it would be complex to introduce different rules for the situations such as those described by the Committee and to establish a need in each case.
Where the local authority is satisfied that an additional room is necessary as it would be beneficial, that authority can make a Discretionary Housing Payment where they consider there is sufficient justification for additional payments to meet any potential shortfall between Housing Benefit and actual rent payable. Providing certainty that Housing Benefit will, in future, meet the costs of an additional room for a non-resident carer should help free up funds within Discretionary Housing Payment budgets and allow local authorities to use their discretion to meet the costs in the types of circumstances the Committee describes. Housing Benefit already takes account of resident live-in carers where that carer is not part of the claimant's assessment unit. The Government has no plans to extend this measure further."
The draft 2012 Regulations were subjected to further Parliamentary scrutiny. In particular, in October 2012 they were considered by the First Delegated Legislation Committee. Mr Stephen Timms MP asked the minister to consider the position of disabled children as follows:
"Disabled children who need a carer must also be permitted to have another room. It is not permitted under the regulations at the moment. Will exemptions cover families with those particular needs?"
The minister's initial reply was:
"… when it comes to the social-rented sector, the size criteria already allow a room for an overnight non-resident carer. The court case that we were talking about was linked case in that there were two disabled children who needed separate rooms. Obviously this is a complex legal issue, but because it is before the courts and we are seeking leave to appeal, I will not go too much further. …"
He then clarified his reply by adding:
"For the avoidance of doubt, I want to clarify this point about the court case, disabled children and so on. The rules about having a spare bedroom for an overnight carer, which is the Burnip case, are specifically about the claimant or a partner, so we are talking about adults. The Gorry case extends the rights to allow disabled children to have their own room, and those issues are under appeal currently, just in case I created any confusion, We already allow a spare bedroom for a carer for a claimant or a partner, just to clarify that point."
The DWP's Discretionary Housing Payments Guidance Manual Including Local Authority Good Practice Guide was updated in April 2013 in the light of the changes that were being introduced. At page 25, the Good Practice Guide states:
" Support for disabled people living in significantly adapted accommodation
2.4 The Government has added additional funding to the DHP fund from 2013/14, specifically aimed at supporting disabled people living in significantly adapted accommodation – including any adaptations made for disabled children.
2.5 For claimants living in specially adapted accommodation, it will sometimes be more cost-effective for them to remain in their current accommodation rather than moving them into smaller accommodation which needs to be adapted. We therefore recommend that local authorities identify people who fall into this group and invite a claim for DHPs.
2.6 There is no definition of significantly adapted accommodation. It is up to LAs to decide what constitutes significantly adapted accommodation, based on local knowledge and individual circumstances.
2.7 The allocation of the additional funding for disabled people broadly reflects the impact of this measure and the additional funding needed to support this group. However, due to the discretionary nature of the scheme, LAs should not specifically exclude any group affected by the removal of the spare room subsidy or any other welfare reform. It is important that LAs are flexible in their decision making.
2.8 For example,...
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