November 2019 – Court Rules Bedroom Tax Discriminates

In a new judgment, the European Court of Human Rights (ECHR) has ruled that the bedroom tax unlawfully discriminates against a woman living in a Sanctuary Scheme home which included an extra bedroom that had been adapted as a panic room.

 The ECHR considered two cases  

JD who lives with her adult disabled daughter in a three bedroom property in the social rented sector. Her daughter has severe physical and learning disabilities, is a permanent wheelchair user and is registered blind. JD cares for her daughter full time and their house was specifically designed to accommodate their needs including wide doors, an internal lift, ceiling hoists in the bathroom and bedroom, an accessible bathroom and a changing bed. At the time of making her application to the Court, JD was awaiting a response to her most recent claim for discretionary housing payments (DHPs) and had not been offered smaller accommodation that would meet her daughters needs

 

A lives in a three bedroom house in the social rented sector with her son. In the past the applicant had a brief relationship with a man known as X who is considered extremely dangerous and has previously served a lengthy prison sentence for attempted murder. After his release from prison in 2002, X came to her home and violently attacked and raped her. Her son was conceived as a result of the rape. In 2012, X contacted A again and she was referred by the police to the Sanctuary Scheme. The scheme aims to protect those at risk from the most severe forms of domestic violence. As provided by the rules of her placement in the scheme, the home was adapted to include the modification of the attic to render it a panic room where A and her son can retreat in the event of an attempted attack by X. A has been awarded DHPs on a temporary basis

Both applicants had a 14 per cent reduction applied to their housing benefit (the bedroom tax) as they were considered to have a spare bedroom. The Supreme Court dismissed both their claims that the bedroom tax constitutes unlawful discrimination that cannot be justified (although, in the case of A, two judges gave dissenting judgments).

The ECHR considers both applications in a single judgment. JD complained that she had been discriminated against on the basis of her daughters disability and A complained that she had been discriminated against on the basis of her gender as the victim of gender based violence.

In respect of the treatment of the applicants, the Court considered whether the applicants, having been treated in the same way as other recipients of housing benefit who were subject to a reduction in their housing benefit, were particularly prejudiced by that measure because their situation was significantly different for reasons of disability, as regards the first applicant, and gender, as regards the second applicant and whether the failure to take account of that difference was discriminatory. Such treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised. 

Considering JD, the Court unanimously found that whilst it has been acknowledged that any move would be extremely disruptive and highly undesirable for the first applicant, it would not be in fundamental opposition to the recognised needs of disabled persons in specially adapted accommodation but without a medical need for an extra bedroom to move into smaller, appropriately adapted accommodation.

In that context, the Court took account of the Governments decision to provide for those who did not fall under the exemptions set out in the Regulation to apply for DHP. The Court observes that the first applicant has in fact been awarded DHP for several years following the changes to the Housing Benefit Regulation. Whilst the DHP scheme could not be characterised as ensuring the same level of certainty and stability as the previous, unreduced housing benefit, its provision with attendant safeguards, amounts to a sufficiently weighty reason to satisfy the Court that the means employed to implement the measure had a reasonable relationship of proportionality to its legitimate aim. Accordingly, the difference in treatment identified in the case of the first applicant was justified.

However, in respect of A, the Court held, by five votes to two, that the legitimate aim of the present scheme (to incentivise those with extra bedrooms to leave their homes for smaller ones) was in conflict with the aim of Sanctuary Schemes, which was to enable those at serious risk of domestic violence to remain in their own homes safely, should they wish to do so.

Given those two legitimate but conflicting aims the Court considers that the impact of treating the second applicant, or others housed in Sanctuary Schemes, in the same way as any other housing benefit recipient was disproportionate in the sense of not corresponding to the legitimate aim of the measure. The Government have not provided any weighty reasons to justify the prioritisation of the aim of the present scheme over that of enabling victims of domestic violence who benefitted from protection in Sanctuary Schemes to remain in their own homes safely.

Accordingly, the Court ruled that there has been no discrimination in respect of the first applicant JD, but that there has been in respect of the second applicant A.

 

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