The claimants in two of the of the ‘bedroom tax’ judicial review cases dismissed by the High Court – Rutherford (now SR) and A – had their appeals heard in the Court of Appeal by The Lord Chief Justice, Lord Justice Vos and Lord Justice Tomlinson over the past two days. Having sat in on the hearing today and yesterday, there were three key elements that were particularly interesting when considering the cases as part of the judicial review challenges to policy changes following the Welfare Reform Act 2012 more generally.
It is first worth very briefly outlining the facts of the cases. The difficult circumstances faced by the claimants are outlined in detail in their respective first instance judgments (Rutherford and A), but a concise summary is given in the permission hearing for the Court of Appeal challenge by Sir Stanley Burnton (paras 5-6). In short, A concerns a victim of domestic violence from a previous male partner, and as a result of the continued threat posed by him, is in a sanctuary scheme which includes the conversion of the attic of the property to a ‘panic room.’ Otherwise, her and her child are under-occupying the property pursuant to the ‘bedroom tax’ regulations. In SR (previously Rutherford), two of the claimants are the maternal grandparents of the third, who suffers from Potoki-Shaffer Syndrome and has intensive care needs. These are met by both his grandparents, and also by a carer who visits daily. They are also under-occupying the three-bedroom property pursuant to the ‘bedroom tax’ regulations. Both are currently in receipt of a Discretionary Housing Payment (DHP), but its facilitation was not plain sailing on the facts of either case.
Turning to the hearing, the first key issue which dominated was the nature of precise and imprecise classes of persons for the purposes of drawing exemptions. The problem stems from the way in which the previous Court of Appeal ‘bedroom tax’ decision in MA was distinguished from a previous challenge to the Local Housing Allowance bedroom standard (which is materially the same as the ‘bedroom tax’ one) in Burnip.In the latter, the class of persons under consideration (namely, disabled children unable to share a room by reason of disability, and adults requiring overnight care) were: (i) easy to recognise, (ii) not open to abuse, (ii) relatively few in number, and (iv) unlikely to be changeable. Consequently, the could be accommodated by explicit statutory exemptions built into the ‘bedroom tax’ regulations. This is different to the unsuccessful challenge in MA, where the far broader class of persons who are in need of an additional room by reason of a disability was under consideration.
Counsel for the parties in the current appeal were pressed on the problem of ‘salami-slicing’ these broader categories into smaller, readily identifiable groupings. A theoretical articulation of this problem, as put to the lawyers, was that if an easily delineable class of persons who would be unlawfully discriminated against if they had to pay the benefit penalty could be identified – but there were just 3 or 4 of them – does this still warrant a dedicated exemption within the regulations, and if so, would this process of adding (a potentially very large number) of descriptive categories not make the underpinning regulations unduly complex? (Though it could be argued, as Helen Mountfield QC appearing for the Equality and Human Rights Commission did, that such a small group could hardly be described as ‘easy to recognise.’)
Secondly, following on from this first point, the Lord Chief Justice repeatedly pressed respective counsel on the significance of offering discretionary mitigation as opposed to a statutory exemption. The position requiring clarification was the difference between (a) the right to a sum certain – the solution generally adopted in recent times to dealing with benefit eligibility – and (b) a right for a claimant to have their case for a discretionary benefit ‘top-up’ considered lawfully by a local authority.
The suggestion put to them was: if, as the initial decision in Rutherford and the subsequent cases of Cotton and Hardy suggest, DHPs would have to be made in the circumstances of the claimants in order to avoid unlawful discrimination in any event, the difference between (a) and (b) is not as apparent as might be first assumed. In other words, they would be pari passu, with either option providing the same material result; the claimant not paying the ‘bedroom tax’ penalty.
In this context, the specific nature of the DHP fund – particularly its cash-limited rather than demand-led nature, and the other pressures upon it as a result of ongoing and further reforms – was a significant area of discussion. Arguments around the sufficiency of current funding, problems faced by the individual claimants in receiving DHP funding initially, and the anxiety caused by the uncertainty of payments all featured, alongside the reliance on judicial review to challenge any decisions due to the payments falling outside of the statutory right to appeal in Para.6, Schedule 7 of the Child Support, Social Security and Pensions Act 2000. These issues, amongst others, may helpfully be considered in advance of the March 2016 Supreme Court hearing on MA, by the Department for Work and Pensions Select Committee as part of their Local Welfare Safety Net inquiry.
Finally, the third issue which was repeatedly underscored was the nature of the ‘manifestly without reasonable foundation’ test applied in previous appeals, and the decision in MA (which the Court is bound by). Though the test is clearly a lower bar than ‘weighty reasons’ for otherwise unlawfully discriminatory regulations, the appellants were keen to stress that the test still demands close scrutiny on the Secretary of State, and is not a test of mere ‘irrationality’ on the regulations. As stated by the Master of the Rolls in MA, ‘the fact that the test is less stringent than the “weighty reasons” normally required to justify sex discrimination (which was in play in that case) does not mean that the justifications put forward for the rule should escape “careful scrutiny.”’
Almost regardless of the decision by the Court of Appeal in these cases, these same issues are likely to be considered by the Supreme Court again in March 2016 when MA is heard for the final time. Depending on the decision of the Court of Appeal in this instance, these two cases may also intervene, and we can hear the Supreme Court consider them afresh again – with the notable benefit of not being bound by the decision, and application of the ‘manifestly without reasonable foundation’ test, in MA.
By Jed Meers
York Law School