Removal of subsidy for spare room not unlawful

Cotton and others, (R on the application of) v Minister for Work and Pensions and others, 15 October 2014  [2014] EWHC 3437 (Admin) – read judgment

Whether you call it the “spare room subsidy” or the “bedroom tax”, the removal of this type of housing benefit has been nothing short of controversial. There have been several previous legal challenges to the Regulations, as well as to the benefit cap introduced as part of the same package of welfare changes. The outcome of these cases was not promising for these claimants, in particular the decision of the Court of Appeal in R (MA) v Secretary of State for Work & Pensions [2014] EWCA Civ 13. Another important case is R (SG (previously JS)) v Secretary of State for Work & Pensions [2014] EWCA Civ 156.

Now the High Court has settled one aspect of the matter by ruling that these amendments did not breach the  rights of singe parents under Article 8 ECHR  who looked after their children under shared care arrangements where they received discretionary housing payments to make up the shortfall.

Factual and legal background

This was an application for judicial review of the defendant secretary of state’s amendments introduced by the Housing Benefit (Amendment) Regulations 2012.

The claimants were all parents who are either divorced or separated from the other parent of their children and looked after their children under shared care arrangements. They each received housing benefit. The children alternated between living with each parent, spending approximately half their time with each and having their own bedroom at each premises. In each case the housing benefit payable to the claimants, the parents with secondary responsibility, had been reduced as a result of the Regulations with effect from 1 April 2013.

On the other hand, the claimants had been receiving Discretionary Housing Benefit (DHP) and consequently they had suffered no net loss of income at all as a result of the changes to housing benefit. All that had happened is that instead of receiving housing benefit as of right, they were receiving the same net amount made up by (i) a reduced amount of housing benefit plus (ii) DHPs making good the reduction.  DHPs are provided for by the Discretionary Financial Assistance Regulations 2001 which confers a broad discretion on local authorities to provide financial assistance to persons entitled to housing benefit who require further financial assistance to meet their housing costs.

Nevertheless, the claimants submitted that the housing benefit amendments were unlawful in that they were a breach of the right to respect for home and family life  under Article 8 on its own and read together with the prohibition on discrimination under Article 14; they also claimed that the regulations were irrational.  They argued that, if DHPs were to mitigate the reduction in housing benefit for parents with shared responsibility, they needed ongoing, not short-term, payments which caused them anxiety about the possibility of losing their homes and being unable to have their children stay with them.

The Court’s decision

Males J refused the application.

He accepted that Article 8 was engaged by the situation, but according to Strasbourg authority, as interpreted in SG, Article 8 does not generally require the state to provide a home and that the provision of funds for that purpose is a matter for political and not judicial decision.  In Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406, the Court of Appeal made clear that the test for the state’s obligations under Article 8 was stringent, even where the welfare of children was at stake. Lord Woolf CJ said that he found it

hard to conceive, …, of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3.

“A short answer to this claim”, said Males J, was

that as a result of the DHPs received by each of the claimants, which have completely compensated for the reduction in housing benefit paid to them … none of the claimants has suffered any interference with their family life capable of amounting to a breach of Article 8.

They continued to live as they had done before the changes in housing benefit. The Regulations and the DHPs scheme had to be considered as a whole and, when that was done, the admitted discrimination in the Regulations was justified. This was the result if the government’s action was set against the “manifestly without reasonable foundation” test:

That follows in my judgement from SG at [106]. It is on any view a stringent test for a claimant challenging the lawfulness of such Regulations to meet.

Parliament had been aware of the impact of the Regulations on parents with secondary responsibility but had voted to approve them.

The question of objective justification for any discrimination under Article 14 raised the same issues as arose under Article 8 and therefore this ground failed.

As for the irrationality claim, the court concluded that the policy objectives of the benefit changes and the Regulations as a means to achieve those objectives were well within the government’s margin of discretion.

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