A judge has ruled that the Bedroom Tax does discriminate against disabled people, but that it is legal.
Discrimination is legal where it is considered to be a proportionate means of achieving a legitimate aim.
The judge's ruling depends on it not being possible to identify which disabled people require an extra room, and on the Bedroom Tax being a proportionate means of achieving a legitimate aim. But all of these conclusions are questionable, which means that to deem the Bedroom Tax as lawful for disabled people is also questionable.
The judge said that it is not possible to identify a group of disabled people who need an extra room compared to non-disabled people. Children who, through disability, need their own room are a 'discrete group,' but adults who need this are not – but how can this be an identifiable group for children but not adults? Disabled adults are allowed a room for an overnight carer – so clearly this is an identifiable group - but not if that carer is the disabled person's partner. Disabled people are not allowed a room for aids or equipment related to the disability, but where equipment is bulky and fairly standardised in size surely some assessment of it's (known) size relative to the (also known) available floor space is possible?
These three groups are surely not difficult to identify. Even if they were that is not a reason to refuse to do it. Assessing disabled people's ability to work is difficult, but no-one is suggesting that we do not even try. Assessing disabled people's extra costs is difficult, but again whatever controversy there is still no-one is suggesting that we do not do it at all.
The judge ruled that the Bedroom Tax is a proportionate means, because there are Discretionary Housing Payments available to make up the short-fall in rent. But the fund for DHPs is too small for the need. The judge specifically spoke of the £25 million set aside for disabled people living in homes adapted to their needs, but to suggest that this is also available to disabled people in non-adapted homes is to suggest a broader target group than the government specified. Shelter pointed out that this fund will cover only 35 000 households – of 108 000 that have been adapted to disabled people's needs and 420 000 households containing at least one disabled person.
The judge said that the Bedroom Tax had a legitimate aim, saying: “The engine of the HB is not only the saving of public funds … but there is also a strategic aspiration to shift the place of social security support in society.” He continues to say, “So much is plain from the published budget statement of June 2010, to which I have briefly referred. The aspiration is contentious. It is elementary that the judges have no public voice for or against it.”
On saving money, that the Bedroom Tax will save money is itself contentious. Estimates suggest that it will cost more than it saves, through pushing social sector tenants into the more expensive private sector or temporary accommodation, through the cost of rent arrears and the £850 it costs a social landlord to move a tenant, through the adaptations for disabled people – averaging £6000 – and through the DHPs themselves.
On the second argument the judge says that the judiciary has no comment. I have to accept his superior knowledge of the judicial system and what it can and can't judge, but I am concerned that judges are not able to comment on what is or is not a legitimate aim. If the judges won't decree that a policy is illegitimate, who can? I hope that Labour will, but so far it seems they have left that to Unite. As it is, the government has been allowed without legal challenge to cut support from those who have nowhere else to turn.
None of this addresses the fundamental issue with the Bedroom Tax: that it is not an effective way to adjust current occupation of social housing. Those who can afford to hold on to their houses will do so, and how will that help reduce under-occupation? Pensioners are exempt, even though they are less likely to have children in school or be themselves in work. The result is that the people affected are not all of those who under-occupy, but those who are most vulnerable and the most disadvantaged by moving – the disabled, the poor, and those who have important links to their area.
What would have been sensible, if the aim were truly to free up larger properties for larger families, would have been to offer to under-occupiers a smaller house within a reasonable distance of the current house. Under-occupiers should have some leeway to refuse this if sthere is good reason to require that current schools, jobs and/or healthcare remains in place, just as those waiting for social housing have some leeway in turning down offered houses. If smaller houses are repeatedly refused without good reason then the household could have their Housing Benefit reduced, in recognition that they have chosen to live in larger housing when the option to downsize existed.
Such a policy would mean that social housing tenants are not penalised for the inability of successive governments to build sufficient small properties. It would mean that those waiting for housing don't have to stay in unsuitable or temporary accommodation whilst waiting for a sufficiently small house to become available. It would mean that people are not forced into private accommodation because there are no small houses in the necessary locations. It would mean that people who have never fallen into arrears before would not be forced into doing so. It would mean that those on the lowest incomes are not unfairly penalised for being unable to afford the only local housing available. It would mean that the disabled, already facing billions of pounds of cuts, are not made to pay yet again for the failings of others.
It would mean that councils and Housing Associations don't see an increase in rent arrears and an increase in applications for DHPs. It would mean that they would not lose rent income that they would have used to build more social housing. It would mean that larger properties don't stand empty because there are no families big enough to be able to afford to occupy them.
It would mean, overall, a policy that could work without costing local authorities, Housing Associations, government and individual people more than it could ever return.