Bedroom tax discriminated against victim of domestic violence

The European Court of Human Rights ruled in a majority verdict that the application of the bedroom tax to a woman living in a property with a sanctuary scheme constituted unlawful discrimination.

In JD and A V The United Kingdom [2019] ECHR 753, the court considered two cases, only one of which was successful. The cases both alleged unlawful discrimination put on different grounds. The first applicant JD argued that the bedroom tax constituted unlawful indirect discrimination on grounds of disability while the second applicant A argued that she had been the victim of indirect discrimination on the grounds of her gender. The ECtHR considered whether the alleged discriminatory treatment was contrary to Article 14 of the Convention on Human Rights, taken in conjunction with Article 1 of Protocol No.1 resulting from the application of Regulation B13 of the Housing Benefit Regulations 2006 and the Discretionary Housing Payments scheme.

Conflicting aims of government

In A’s case, her three-bedroom home had been adapted under the Government’s Sanctuary Scheme programme. The aim of this programme was to enable those at serious risk of domestic violence to remain in their homes safely. The applicant’s property was provided with a safe room, in which the applicant and her son could safely hide and notify the police service of a need for emergency assistance should the applicant’s violent ex-partner return to the property.  With the introduction of the bedroom tax, the applicant’s Housing Benefit was reduced and she applied for a series of short-term Discretionary Housing Payments to help her meet the shortfall. At one stage, her application for a DHP was refused and required the intervention of the Secretary of State for this decision to be overturned.

In its judgment, the ECtHR found that the aim of the Sanctuary Scheme conflicted with the aim of the bedroom tax, (i.e. to “incentivise those with ‘extra’ bedrooms to leave their homes for smaller ones”). The court held that the Government have not “provided any weighty reasons to justify the prioritisation of the aim of the present (Bedroom Tax) scheme over that of enabling victims of domestic violence who benefitted from protection in Sanctuary Schemes to remain in their homes safely”. Accordingly, the Court found that there had been a violation of Article 14 in conjunction with Article 1, Protocol 1 of the Convention.

The decision was a majority decision with two dissenting judges.

Provision of DHP justified disability discrimination

The first applicant argued that the bedroom tax unlawfully discriminated against her on the grounds of disability. However, in this case the court found that it would not be “in fundamental opposition to the recognised needs of disabled persons in specially adapted accommodation but without a medical need for an ‘extra’ bedroom to move into smaller, appropriately adapted accommodation”. In this case, the court felt that the availability of the Discretionary Housing Payments scheme ensured that the way in which the Government choose to achieve a legitimate aim (curbing public expenditure) was proportionate.

Further comment

Housing law solicitor Giles Peaker considers that the ECtHR’s judgment could have a major impact on discrimination cases, beyond the immediate application to people subject to the bedroom tax, and expects the UK to appeal the decision. Visit the Nearly Legal blog for Mr Peaker’s comments on this case.

Northern Ireland

Many of the legal challenges to the application of the bedroom tax have failed due to the availability of Discretionary Housing Payments to affected claimants. However, the current DHP scheme in Northern Ireland is significantly different to that which exists in Great Britain. At the present moment, households who are affected by the Bedroom Tax in Northern Ireland and who are no longer entitled to receive a supplementary payment cannot apply for a Discretionary Housing Payment. Legislative change will be required in order to allow households in Northern Ireland, who are affected by the bedroom tax to apply for DHPs. This should be taken into consideration when looking at the merits of a legal challenge as to the discriminatory impacts of the bedroom tax.

The scope of the DHP scheme is much narrower in Northern Ireland, where situations under which a claimant becomes entitled to a payment are very tightly defined. By contrast, the regulations which apply in Great Britain simply require that the claimant is in receipt of Housing Benefit, or a relevant award of Universal Credit and appears to require further financial assistance in order to meet his or her housing costs.