Housing benefit bedroom-sharing rules under legal spotlight

2 June 2011 – new case law

Housing benefit is a semi-tailored benefit. It does not involve a precise analysis of a person’s housing needs. Instead, it uses rough and ready rules, like the room standards. These operate by applying a general formula which in most cases is hoped to result in an acceptable outcome. But outcomes can appear harsh in special cases.

The present case might have been considered a special case because the rules expected 2 very disabled children to share a room together.  However, the Upper Tribunal held that the approach taken by the Housing Benefit Regulations 2006 was lawful. This may not be the last word on the topic, though, as the Court of Appeal is soon to give a test case ruling on whether housing benefit room standards are compatible with the European Convention on Human Rights. 

What happened? 

  • A couple had 3 children. Two of the children, both girls, were severely disabled. One, age 10, had Down’s Syndrome. The other, age 8, had Spina Bifida. 

  • The family rented in the private sector, a four bedroom house. The two disabled children had separate rooms because their disabilities meant that they could not reasonably share a room. Their temperaments clashed and they both needed a lot of equipment to be stored near them. 

  • The couple claimed housing benefit. The housing benefit occupancy rules meant that the two disabled girls were expected to share a room. This is because two children of the same sex, regardless of age, are expected to share a room (reg.13D(3), Housing Benefit Regulations 2006). 

  • The result was that the couple were only awarded the 3-bedroom rate of Local Housing Allowance for their area, £155 per week. This left a weekly rental shortfall of around £60 per week. 

  • The couple’s council agreed to make a Discretionary Housing Payment of £60 per week so they could pay their rent. But the council said that this was strictly a time-limited arrangement and that the couple needed to find accommodation whose rent would be met by their 3-bedroom LHA rate. 

  • The couple appealed against the decision that they were only entitled to the 3-bedroom LHA rate. They said that this amounted to discrimination on the ground of disability on account of the Housing Benefit Regulations’ failure to make special provision for disabled children. 

  • The matter came before the Upper Tribunal. 

What did the Upper Tribunal decide? 

  • The Upper Tribunal rejected the couple’s case. 

  • The Upper Tribunal accepted that, in principle, the State can be required by the European Convention on Human Rights to make special provision for disabled people in some cases. However, not in this case. 

  • Given the range of other welfare assistance provided to the family, including awards of Disability Living Allowance for both girls and the Discretionary Housing Payments, the Upper Tribunal did not consider there to be a breach of the European Convention on Human Rights. In the light of that assistance, the Government were entitled to construct a set of housing benefit rules that were clear and simple to operate even if in some cases they might appear to operate harshly. 

What happens next? 

  • The rigidity of the Local Housing Allowance bedroom rules has generated significant litigation before the Upper Tribunal over recent months. This decision may not be the last legal word on the topic. 

  • In a case called IB v Birmingham CC the Upper Tribunal rejected the argument that the failure to ‘count’ an overnight carer as an occupant amounted to a breach of the European Convention on Human Rights. That ruling was heavily relied on by the Upper Tribunal in the present case when rejecting the couple’s appeal. 

  • The IB case is due to be considered by the Court of Appeal in the near future. In the present case, the Upper Tribunal strongly hinted that it would be sensible for the Court of Appeal to combine the IB appeal with an appeal from its decision in this case. The Tribunal said it would give permission to appeal to the Court of Appeal if requested. 

  • In fact, it is more important from a practical viewpoint for the Court of Appeal to hear an appeal against the decision in the present case. The IB situation was effectively reversed by amendments to the Housing Benefit Regulations 2006 that came into force in April 2011 (for details of the amendments, see Issue 72 of the Journal of Welfare Benefits Law’s report of the IB decision). However, the April 2011 changes do nothing to help persons in the same situation as the couple who brought this appeal. 

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