Does the ‘bedroom tax’ sexually discriminate?

R (on the application of A) (Respondent/Cross Appellant) v Secretary of state for Work and Pensions (Respondent)

The ’bedroom tax’ was introduced in April 2013 as a limit on the amount of housing benefit which is payable to social housing tenants who are deemed to be under-occupying their homes by having spare bedrooms. Housing benefit is reduced by 14% for one additional bedroom or by 25% for two or more additional bedrooms. Although popularly called the ‘bedroom tax’, when first introduced by the government it was characterized as a removal of the ‘spare room subsidy’, implying that those subject to the tax were benefiting by having houses larger than they actually needed.

The scheme has been controversial since its introduction and with around 465,000 households affected by the ‘bedroom tax’ there are many examples of tenants whose special circumstances are not accounted for in the legislation.

On 9th November 2016 the Supreme Court examined some of these circumstances and in two cases involving disability rights the applicants were successful. In one case however the applicant was unsuccessful. In this case the Supreme Court found that the Secretary of State for the Department for Work and Pensions had not discriminated against respondent ‘A’ on sex discrimination or public sector equality duty grounds.

‘A’ is a female victim of domestic violence who was allocated a 3-bedroom property 25 years ago which was later adapted under the Sanctuary Scheme. The Sanctuary Project’s aim is to help households at risk of domestic violence and hate crime by installing enhanced security measures and a reinforced ‘sanctuary room’.

‘A’ argued that sanctuary scheme users should be formally exempted from the bedroom tax whilst they remain in need of state protection from domestic violence. The applicants in the other cases relied upon Article 14 in respect of causing unlawful discrimination on grounds of disability however ‘A’ relied on Article 14 in relation to sex discrimination. ‘A’ also argued that there had been a breach by the Secretary of State of the public sector equality duty, s.149 Equality Act 2010 (PSED). The Public Sector Equality Duty is a duty on the part of a public authority to have due regard to the need to eliminate discrimination and advance equality of opportunity between those with characteristics protected under the Equality Act and those who do not (for example, between disabled and not disabled people).

To make out A’s case it must be proven that the ‘bedroom tax’ had a disproportionate effect on female victims of domestic violence under the care of the sanctuary scheme. Looking at the facts, as of December 2011 there were 1.1million more female housing benefit claimants than male. There are currently 5,800 people relying on the Sanctuary Scheme with an overwhelming majority being female and many of them being mothers. Of those in the Scheme, 240 are affected by the ‘tax’. In the Court of Appeal, ‘A’ succeeded under article 14 on the grounds of sex discrimination but failed in her claim under the PSED.

The Secretary of State appealed the decision that the ‘bedroom tax’ was discriminatory and A cross-appealed on the PSED ground. The Supreme Court did not find in favour of either of ‘A’s arguments but permission has been granted for an appeal to the European Court of Human Rights. Baroness Hale delivered a dissenting Judgment which suggests a route for A’s challenge in the European Court of Human Rights.

The Secretary of State argued that in special cases such as with A, there could be provision made by the Discretionary Housing Payment (DHP) regime. Baroness Hale took the view that on principle, if the discrimination is not acceptable in the case of the Carmichael’s (whose joint appeal regarding disability discrimination with A was successful in the Supreme Court) then for the same reason DHP is not acceptable for A. She also says that DHP is “discretionary, cash limited, [and] produces less certainty…”

A’s case may be distinguished from those that appealed with her as it relates to her remaining in her current home as opposed to whether extra space is needed due to disability. The Secretary of State even agreed with ‘A’ that she was expected to continue living at her home but the Supreme Court found 5 – 2 that receiving support under the Sanctuary Scheme does not lead to exemption from the ‘bedroom tax’. Baroness Hale took the view that if ‘A’ is expected by all parties to remain at her home then she should be exempt from the ‘bedroom tax’. Baroness Hale noted that as per the cases: X and Y v Netherlands (1985) EHRR 235, Z v United Kingdom (2001) 34 EHRR 3 and Opuz v Turkey (2009) 50 EHRR 28 there is a positive obligation to provide effective protection against gender-based violence. It follows that by failing to exempt A from the bedroom tax the government had failed to comply with its positive duty to prevent discrimination on grounds of sex and so had been in breach of A’s Human Rights and the Public Sector Equality Duty.

A has already said she will be appealing to the European Court of Human Rights but any such appeal is likely to take several years. In the meantime people like A will continue to have to rely on the Discretionary Housing Payment scheme. Although funding from the government remained the same in 2016/2017 for DHP in ‘bedroom tax’ cases, in previous years it has been cut and the DHP scheme has always been billed as a transitional fund. In an era of shrinking local authority budgets, it must be asked whether those relying on DHP to remain living in their homes can feel secure in future.