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Government Decision To Drop Supreme Court Challenge Offers Protection Against ‘Bedroom Tax’ For Disabled

But Lawyers Say Fight Will Go On To Help Others Who Could Still Be Discriminated Against


Expert lawyers have welcomed the Department for Work and Pensions’ (DWP) decision to drop a Supreme Court challenge to a landmark Court of Appeal judgement which they say sets out clear guidance to ensure that disabled people are not discriminated against by the Government’s benefit system.

Irwin Mitchell represented Ian Burnip, one of three claimants in a successful challenge to DWP’s housing benefit regulations last year which stated that local authorities could not provide housing benefit for extra bedrooms needed by  the claimants because of their disabilities, who were living in private rented accommodation.

DWP’s decision to drop a proposed appeal at the Supreme Court now means that Local Authorities (LA) will have to allow for an extra bedroom for children who are unable to share because of their severe disabilities.

Polly Sweeney, a specialist solicitor at Irwin Mitchell representing Ian Burnip, said, “The decision to drop the Supreme Court challenge means that the ‘bedroom tax’ will now not apply where severely disabled children are unable to share a room because of their disabilities.”

Recently released DWP guidance, which confirms they have dropped their legal challenge, now states that:

  • 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 using medical evidence or records of a child’s Disability Living Allowance (DLA).
  • 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 to which this might disturb the sleep of another child sharing the bedroom.
  • The Court of Appeal judgment will now apply to both the Local Housing Allowance (LHA) size criteria and the reduction of the spare room subsidy which applies from 1 April 2013.

Polly said: “We are however disappointed that the DWP’s guidance does not go far enough, and that there will still be many people, such as couples who cannot share a bedroom, who will continue to be discriminated against by the introduction of the spare room subsidy on 1 April 2013. We believe the government has not properly understood the serious impact of these changes on some of the most vulnerable people in society and would urge them to think again.”

Irwin Mitchell represented the lead case of Ian Burnip at the Court of Appeal arguing DWP had breached the claimants’ human rights by not allowing housing benefit claims to be treated differently to those of non-disabled people, which would have given them the extra provision needed to meet their essential needs.

The Court backed the families, ruling that “without the benefit of the extra room rate, Ian Burnip would be left in a worse position than an able bodied person living alone”.  He wanted to claim LHA to cover an extra bedroom he needed for an overnight care worker.

Polly Sweeney added: “The Court of Appeal found unanimously last year that discrimination had occurred in all three cases and that their human rights had been breached even though the appropriate provisions being sought for the disabled people required additional public expenditure. This case now becomes law and local authorities are bound to abide by the terms set out in the judgment for all similar cases.”

Ian Burnip’s mother Linda, who set up the Local Housing Allowance Reform Group to campaign for changes in the system, said: “I am very relieved that DWP has decided to drop its latest appeal. This case reinforces disabled people’s right to not be discriminated against within the benefits system and also affirms their rights under the UN Convention on the Rights of Persons with Disabilities.

“We hope that the case will help other disabled people who feel that they have been discriminated by government policies and law."

Read more about Irwin Mitchell's expertise in Administrative and Public Law.