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Focus on Brain Injury

What The Bedroom Tax Means For People With Brain Injuries

In April 2013, the Government introduced the unpopular bedroom tax whereby housing benefit is reduced for those who are deemed to have a spare bedroom. The assessment of whether someone has a spare bedroom depends on the number of rooms their tenancy agreement defines as bedrooms and the number of occupants in their household. Couples are expected to share a bedroom as are children of the same gender who are under the age of 16.

Challenges have been brought to the lawfulness of the bedroom tax itself, but in February 2014, the Court of Appeal ruled that the bedroom tax did not unlawfully discriminate against disabled people because the Court was satisfied that disabled people would be protected by the Discretionary Housing Payment Scheme. The Court ruled that disabled children who cannot share a bedroom due to disability would be exempt from the bedroom tax, an important step forward, but the Court said that this exemption does not apply to disabled adults who cannot share a bedroom for the same reason.

The bedroom tax has a significant impact on people with brain injuries, particularly if they require the spare bedroom for an overnight carer. Housing benefits regulations exempt housing benefit recipients from the bedroom tax if they or their partner require overnight care from a carer. There are no provisions within those regulations if the person who requires the overnight care is a child or adult child of the housing benefit recipient. This was challenged by the Child Action Poverty Group in May 2014 as discriminatory. The High Court dismissed the case on the grounds that parents in that situation can apply for a Discretionary Housing Payment.

The difficulty with relying on Discretionary Housing Payments is that they are as the name would suggest, discretionary. Someone may receive a Discretionary Housing Payment for several months only to not be awarded it the next time they apply.

What is a Discretionary Housing Payment?

The Discretionary Housing Payment scheme is open to all housing benefit recipients who are affected by the bedroom tax. Applications should be made to their local housing authority who will review their financial circumstances to determine whether to award a payment. These payments are discretionary and are awarded differently in different local authority areas. They are not awarded on a permanent basis, although they may be awarded for the whole of the financial year in some cases.

Irwin Mitchell have come across some illogical decisions by local authorities when considering whether to grant a Discretionary Housing Payment. We recently overturned the decision of Ryedale District Council not to award a Discretionary Housing Payment to a disabled couple who could not share a bedroom because of their respective disabilities. Because they could not share a bedroom, they did not physically have a spare bedroom but the local authority initially stated that they should take in a lodger, move to a smaller property or take up employment to pay for the bedroom tax. This decision failed to take into account the very nature of their disabilities and was thankfully overturned after our intervention.

The crucial thing to remember when applying for a discretionary housing payment is to take time to really think about your expenses and ensure that they are accurately recorded on the application form. Ask for assistance with completing this if needed.

How does the bedroom tax affect people with brain injuries?

Anyone who has a ‘spare bedroom’ is affected by the bedroom tax but the reality for disabled people, particularly those with brain injuries and other disabilities is that the bedroom isn’t spare at all but being used for another purpose.

If that room is needed for an overnight carer, they should check whether they are exempted through the housing benefit regulations if they are the recipient or the partner of the recipient of housing benefit. If they don’t fall into that category, they will still be subject to the bedroom tax but they should make an application for a Discretionary Housing Payment as soon as possible. Recipients must be aware of when that Discretionary Housing Payment runs out so that they reapply in time to avoid gaps in funding.

Those with cognitive impairments will often find it difficult to move house, particularly if they have been living somewhere for a long time. If moving to a smaller house isn’t an option for them, for these reasons, they should make sure that this is made clear on their application for a Discretionary Housing Payment. A letter from a support group or their GP will help their application.

Some may find that their spare bedroom is used to store equipment or medication which cannot be stored elsewhere in the house. Again, they should ensure that this is made clear on any application for a Discretionary Housing Payment, with letters of support wherever possible. Should they have concerns that the local authority are unlawfully refusing to grant them a Discretionary Housing Payment, please contact a member of our team.

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  • Fiona McGhie
  • Senior Associate Solicitor
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