Housing Systems: Combating poverty and sustaining tenancies.

How Much: Bedroom Tax - Human Rights

Where a claimant believes that applying the Bedroom Tax rules in their case contravenes their Human Rights then they have the right of appeal against the DWP's decision.

Issues of Human Rights are normally dealt with through Judicial Review - however a Supreme Court decision comprising five judges - 

RR v Secretary of State for Work and Pensions (2019) UKSC 52

 - unanimously ruled that decision makers and Tribunals could disapply the Bedroom Tax rules if applying the rules would breach the claimant's rights under the Human Rights Act. (The case in question was to do with disability discrimination where a couple could not share a bedroom due to disability).

This overturned a previous Court of Appeal decision that Tribunals could not just ignore regulations - even if they were discriminatory - in such situations.

Click here for the background of this case.

What does this mean for claimants?

This Judgement means that benefit claimants will no longer have to take all cases for breach of Human Rights through the Judicial Review process – which can be both costly and protracted. But they can request that the relevant benefit authority consider the breach.

However, they should be aware that some claimants have already taken cases regarding the Bedroom Tax through the Judicial Review process – so a decision may have already been made in a case similar to theirs.

And it is only rules made by secondary legislation  (not primary legislation such as Acts of Parliament) that they can challenge in this way.

Benefit rules that have already been found to breach a claimant’s Human Rights

Since the onset of the Welfare Reforms back in 2013 claimants have been challenging their discriminatory impact. The majority of these challenges have been to the Bedroom Tax and Benefit Cap.

In some of these challenges – which went through the Judicial Review process - the Judge agreed that the legislation did breach the claimant’s Human Rights, but that the availability of Discretionary Housing Payments provided a remedy.

However, Lady Hale, in the Supreme Court decision said:

“neither the initial decision-maker in the local authority, nor the FTT on appeal, nor the UT on appeal, was concerned with anything other than entitlement to housing benefit. They were not concerned with DHPs and had no power to take them into account.

So any decision that secondary legislation breaches the Human Rights Act but does not need to be disapplied because of the availability of DHPs, is clearly wrong – the breach is what matters.

Because a breach has already been confirmed in these cases – and the availability of a DHP is no longer a factor - any claimant in the same situation can now request a review or supersession of the decision.

They will need to explain that the DWP should disapply the particular Regulation because it is in breach of their Human Rights; and quote the relevant case law that found the particular Regulation to be discriminatory (see below) giving details as to why their situation matches that case.

The DWP should supersede the current benefit decision and re-calculate their benefit entitlement disapplying the rules. If they refuse, the claimant can appeal to a Tribunal: both are bound to follow the Supreme Court ruling.

Many cases have already been considered by the Courts and in the majority of cases the government have - due to the findings that the rules breach Human Rights - gone on to amend the Regulations.

So we are only left with adapted properties, where it would be 'extremely disruptive and highly undesirable' for the claimant to move, where claimants in very similar circumstances can request any Bedroom Tax reduction is removed as it has been found to breach their Human Rights. 

Other Benefit rules that have not yet been considered

There may well be other benefit rules governed by secondary legislation that claimants believe breach their Human Rights, where no such decision has yet been made.

In such cases the claimant can ask the DWP to review the decision: the claimant no longer has to go through the Judicial Review process. The claimant will need to explain why they believe the application of the rule in their case breaches Human Rights. But this is no easy task.

The decision maker will then have to make a decision on whether the Regulations breach the claimant‘s Human Rights or not.

We would suspect that whilst this Supreme Court decision has given decision makers at the DWP the right to make that decision, in most cases decision makers will feel unable to do so, so the claimant will need to challenge their decision not to disapply the rules by taking it to an appeal tribunal.

Click here for more information about the Human Rights Act and Article 14, which looks at discrimination and is often the Article considered when considering whether benefit legislation has breached a benefit claimant’s Human Rights.Where a claimant believes that applying the Bedroom Tax rules in their case contravenes their Human Rights then they do have the right of appeal against the DWP's decision.

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Discretionary Housing Payments

Related Links

 Overnight care - claimant/partner
 Disabled child
 Who is protected from Bedroom Tax?
 What is a bedroom?

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