‘Quick Commentary’ – Bedroom tax declared discriminatory by Court of Appeal

The ‘bedroom-tax‘ (under occupancy charge or the Spare Room Subsidy) has been declared discriminatory and unlawful in the decision by the Court of Appeal (CoA). The judgement handed down today (Susan Rutherford and others -v- Secretary of State for Work & Pensions and A -v- Secretary of State for Work & Pensions [2016] EWCA CIV 29) concerns two cases. One brought by a woman ‘A’ (a single mother living in a three-bedroom council house fitted with a secure panic room to protect her from a violent ex-partner). A and her legal representatives claimed claimed the policy discriminated against her because she would have to leave a room that had been adapted for her safety. The second case concerns Paul and Sue Rutherford (the impact of the tax on seriously disabled children) – and their grandson who requires 24 hour care because he cannot walk, talk or feed himself.

Bedroom tax protest

In both cases it was argued that the policy unlawfully discriminates against women and domestic violence victims and against children in the situation. The court found the policy’s impact on disabled children was contrary to the European Convention on Human Rights (ECHR). Rebekah Carrier, the solicitor acting for A, said:

These changes to housing benefit have had a catastrophic impact upon vulnerable people across the country. Our client’s life is at risk and she is terrified. The anxiety caused by the bedroom tax and the uncertainty about this case has been huge. She lives in a property which has been specially adapted by the police, at great expense, to protect her and her child. …. She is a vulnerable single parent who has been a victim of rape and assault. She is delighted that the court of appeal has recognised the impact that the bedroom tax is having on her and others like her. She very much hopes that the secretary of state will now see sense and agree to change the rules to protect the small but extremely vulnerable class of women and children who need the safety of a sanctuary scheme whilst they try to rebuild their lives after surviving domestic violence. The prospect of having to move to another property – where she will not have any of these protections – or take in a lodger has loomed large for her during the three years it has taken this case to come to the court of appeal.

Lord Thomas, Lord Justice Tomlinson and Lord Justice Vos announced that they were allowing the appeals in both cases on the ground that the tax ‘admitted discrimination in each case … has not been justified by the secretary of state‘. The Court of Appeal held that the claimants had established a prima facie case of discrimination under Article 14 of the ECHR, and that the Secretary of State had failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria. In response to the decision this morning  Sarah Champion, MP for Rotherham tweeted:

D1mY

This decision gives a damning verdict on this policy introduced by the Conservative/Liberal Democrat coalition. Futher such a decision can be viewed as a vindication of the use of the ECHR within British jurisprudence. In this case it has acted as a shield from the negative externalities of over-zealous legislative measures causing unconscionable suffering & violation of human rights (re discrimination). Judicial intervention provides a mechanism by which those who suffer rights violation at the hands of contracting states may seek redress. It enables independent examination outside the political environment predisposed to populist majoritarian preferences and provides an ‘external constraint’ in that it reminds the domestic legislatures of their obligations under international human rights law. External scrutiny acts to protect society’s long term interests from dysfunctional legislation.

By Frederick Antonio Gallucci | International Law LLM | @gibblegbble

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