Supreme Court rules Government acted unlawfully over 'bedroom tax'

Since 1 April 2013, people in the social rented sector deemed to have one spare bedroom have had their housing benefit reduced by 14% and people deemed to have two, or more, spare bedrooms have had their housing benefit reduced by 25%. 

Today’s judgment finds that the Government acted unlawfully against Jacqueline Carmichael (44) and her husband, full time carer, Jayson, after their housing benefit was reduced by 14%, following the implementation of the bedroom tax.

The Supreme Court judges also dismissed the Government’s appeal in the case of Paul and Susan Rutherford who provide around-the-clock care for their disabled grandson and who have a third bedroom for overnight carers. 

The Rutherfords had successfully challenged the bedroom tax scheme in the Court of Appeal which held the policy unlawfully discriminates against children with disabilities who need overnight care. 

The Carmichaels’ case

Mrs Carmichael from Southport, Merseyside, has spina bifida and needs a special hospital-type bed in her bedroom with an electronic pressure mattress, specially designed to fit a single hospital bed. She has to sleep in a fixed position and cannot share a bed with her husband. There is no space for an additional bed in the room and so they require a two bedroom flat.

In a previous case the Court of Appeal found that the Government had discriminated against the Gorry family, whose disabled children needed separate rooms, in relation to the imposition of the bedroom tax. The Gorry case was referred to in today’s judgment:

“Mrs Carmichael cannot share a bedroom with her husband because of her disabilities. Her position is directly comparable to that of the Gorry children, who could not share a bedroom because of their disabilities. But Mrs Carmichael is caught by Reg B13 because para (5)(ba), which was introduced to meet the Gorry situation is confined to “a child who cannot share a bedroom”.” [Para 44]

“There is no reasonable justification for these differences. The Court of Appeal … was persuaded … that there was an objective reasonable justification for treating Mrs Carmichael less favourably than a child in like circumstances, because the best interests of children are a primary consideration. I can see that there may be some respects in which differential treatment of children and adults regarding the occupation of bedrooms may have a sensible explanation. Expecting children to share a bedroom is not the same as expecting adults to do so. But I cannot, with respect, see a sensible reason for distinguishing between adult partners who cannot share a bedroom because of disability and children who cannot do so because of disability. And the same applies also to distinguishing between adults and children in need of an overnight carer.” [Para 46]

Rosa Curling from the human rights team at Leigh Day said: 

“We are extremely pleased that the Supreme Court has ruled in our client’s favour. They must now be provided with a housing benefit that meets their needs. 

“It is very concerning that the Government thought it appropriate to drag this case through the Courts, for nearly 3 years, leaving Jacqui and Jayson scared and confused over their future in their home. With this ruling, they can now start to make future plans again. 

My clients would like to thank the Legal Aid Agency for funding this claim through the Courts. Without their support, this case would not have been possible.”

In a joint statement Mr and Mrs Carmichael said: 

"We are overjoyed at Supreme Court decision. We have been through almost four years of the sheer hell of the Bedroom Tax policy, and this decision vindicates our long and difficult fight. 

"Out of this human rights victory over the bedroom tax we ask Theresa May to now reconsider the whole policy for everyone. 

"We would like to thank everyone who has supported us from day one, and hope others get justice too."

The Rutherfords’ case

The Rutherfords care for their severely disabled grandson Warren in a specially-adapted three-bedroom bungalow in Pembrokeshire. 

Warren has a rare genetic disorder, Potokoi-Shaffer Syndrome, and is unable to walk, talk or feed himself. Both Paul and Susan have disabilities themselves and can only care for Warren with the help of paid carers who stay overnight on a regular basis. 

The couple was hit by the bedroom tax for their third bedroom which they need for the carers to stay in overnight. Following previous case law, the housing benefit regulations allow for an additional bedroom if a disabled adult requires overnight care. This provision however does not extend to protect a disabled child in the same situation. 

In 2013, the family launched a judicial review challenging the ‘bedroom tax’. They have been receiving discretionary payments from the local authority to cover the shortfall in rent but the Supreme Court agreed with the Court of Appeal that there was no justification for the different treatment of children and adults who have the same needs within the same regulations. 

The Court found that there was “an ironic and inexplicable inconsistency in the Secretary of State’s approach” [Para 47] to the justification of the difference in treatment between disabled adults and disabled children. 
The Court upheld the earlier Court of Appeal ruling that the policy unjustifiably discriminates against children with disabilities and that the Secretary of State had failed to have regard to the best interests of children when devising the regulations.  

Sophie Earnshaw from the legal team at Child Poverty Action Group, who acts for the Rutherfords, said:

“Today’s judgment at last establishes that disabled children have the same rights to accommodation for care as disabled adults. It is a just result, -  any other outcome would have been nonsensical. 

“In this case, disabled children were being treated worse than adults. For Paul and Susan Rutherford, the judgment lifts an enormous burden of uncertainty about their grandson’s future – an uncertainty they’ve had to live with since 2013 when the legal process started. 

“The Rutherfords’ legal ordeal is finally over. These are ordinary grandparents who have dedicated their lives to caring for their grandson; they have won much-needed rights for families who care for disabled children who need overnight care. We are all in their debt that they were prepared to stick with it to the end.”

Paul Rutherford said:

"We are happy and hugely relieved with today's result.

It has been an extremely stressful and long three years and we are glad that it is has come to a close. We never imagined this would happen to us – our priority has always been Warren’s happiness. We can now move on with our lives secure in the knowledge that we can continue to care for Warren at home."

Today’s judgment follows a three-day hearing which began on 29 February 2016 in front of seven Supreme Court judges at which lawyers representing adults with disabilities, adult carers and a child with disabilities, went to the Supreme Court to argue two sets of cases. 

The first set is brought by Jacqueline Carmichael, James Daly, Mervyn Drage, JD, and Richard Rourke. An anonymity order has been made for JD to protect the identity of her severely disabled daughter. 

The second set includes the case of Paul and Susan Rutherford who care for their severely disabled grandson, Warren. Today’s Supreme Court decision is a final ruling on both sets of cases.

The Carmichael and Rutherford appeals were the only ones successful today at the Supreme Court.

Karen Ashton of Central England Law Centre, solicitor for Mr Daly, Mr Drage and Ms JD said:

“The Supreme Court’s decision remedies the anomaly whereby disabled adults and children were treated differently if they needed a bedroom for overnight carers or where a bedroom could not be shared. This is to be welcomed. But their judgment leaves thousands of disabled people - who need larger accommodation for other reasons connected to their disability - without an entitlement to housing benefit to pay their full rent, despite the fact that they are unable to work to find the extra money. The court may have found this to be lawful, but that does not mean that it’s fair.”