Councils Cannot Demand Debts Caused By ‘Bedroom Tax’ Are Filled Using DLA

Lawyers who have helped a disabled couple successfully challenge Sandwell Metropolitan Borough Council’s policy of taking disability benefits into account when assessing housing support have said the ruling could have significant consequences for councils across England and Wales.

Irwin Mitchell’s Public Law team were last year granted permission to launch a judicial review regarding the council’s policy of taking into account the care component of Disability Living Allowance (DLA) as income when assessing applications from people affected by the bedroom tax for a Discretionary Housing Payment (DHP).

DLA is provided to disabled individuals to assist with any additional costs of living that they may have in terms of care and mobility, while DHP is a discretionary benefit provided to help with housing costs. Sandwell Metropolitan Borough Council’s policy meant Irwin Mitchell’s clients, Mr and Mrs Hardy, only received a small amount of DHP due to receiving the care component of DLA. Ultimately, they had to use DLA given to them in respect of their disability-related care needs to meet their housing costs.

Now, in a judgment handed down at the High Court today (30 March), Mr Justice Phillips ruled that the policy of taking into account the care component of DLA is unlawful and amounts to a breach of Section 29(6) of the Equality Act 2010 and Article 14 of the European Convention On Human Rights.

Fiona McGhie, the specialist public lawyer at Irwin Mitchell who is acting for the couple, said the decision could go on to have wider consequences for many other local authorities across England and Wales.

Expert Opinion

"The council’s policy has been struck down as being unlawful. Where the bedroom tax leaves a black hole in a disabled person’s household budget – the council cannot demand that they fill that black hole with DLA.

"Today’s decision is an important one which provides important clarity on whether councils should include disability related benefits as income when considering applications for DHP to help with housing costs.

"This ruling has ensured that the voices of our clients have been heard and I believe the decision will have far-reaching consequences for a number of local authorities adopting similar policies. It is vital that the welfare of vulnerable people always comes first and every council should ensure this is a core focus." Fiona McGhie - Partner

Mr and Mrs Hardy have lived in their current home for around 20 years, but were caught by the ‘bedroom tax’ when their housing benefit was reduced as a result of their having a spare bedroom.

They were happy to move to a smaller property to offset this, but there is a lack of suitable accommodation in their local area. As such, in order to meet the costs of living in their current home, they had to apply for a DHP.

Sandwell Council’s policy meant that, due to receiving the care component of DLA, they would only receive a small amount of DHP, which still left them with a shortfall that they had to find every week.

In his judgment, Mr Justice Phillips said the Council’s policy of always taking into account the care component “constitutes a failure to exercise the Council’s discretion and fetters any future exercise of that discretion”.

He added: “The Council’s approach is an example of indirect or Thlimmenos discrimination because it treats disabled applicants and their disability-related income in exactly the same way as it treats others and their non-disability related incomes, giving rise to unfavourable treatment to the disabled applicants.”

Expert Opinion

"We have long-believed this issue is a no-win situation – our clients were given a small amount of DHP due to receiving the care component of DLA, and therefore had to use disability benefits to meet costs which should be met by housing support.

"Sandwell Council’s policy meant our clients were in a really difficult situation, as not only had they been adversely affected by the bedroom tax, but they also then faced further hardship as a result of having less DLA to spend on their care needs. With no alternative accommodation available, they were left in a ‘no win’ scenario.

"Today’s ruling is an important step forward that recognises how the existing council policy simply failed to consider how disabled people would be adversely affected by the treatment of the care component of DLA as income and we are delighted to have helped them succeed in their challenge." Fiona McGhie - Partner

If you or a loved one has been affected by a health or social care decision, our healthcare and social services solicitors could help you make a challenge. Visit our Protecting Your Rights Section for information.