Bedroom Tax does not Constitute Unlawful Discrimination


06 August, 2013

The High Court has today determined that the housing benefit social sector size criteria rules ("the bedroom tax") do not amount to unlawful disability discrimination contrary to Article 14 ECHR.


On 1 April 2013 the Housing Benefit (Amendment) Regulations 2012 came into force. Regulation B13 provided that payments to those renting in the social sector were to be reduced by 14% if the claimant had one more bedroom than was necessary, or 25% if there were two or more unnecessary bedrooms.

Regulation B13 provides a number of exceptions to this deduction. These include exceptions for claimants requiring overnight carers, foster carers and adult children who are on active service in the armed forces but who intend to return to live with their parents. There are currently no exceptions for disabled persons who need an additional bedroom.

The Claimants' Arguments

The claimants in this case were all in receipt of Housing Benefit which had been reduced in accordance with Regulation B13. In most of their cases, they maintained that they needed an extra bedroom because another member of their household was disabled.

All the claimants argued that the Secretary of State should have amended the Regulations following the decision in Burnip v Birmingham City Council. In Burnip, which related to Local Housing Allowance in the private rented sector, the Court of Appeal decided that there should be no deduction of benefit under LHA where an extra bedroom was required for children who were unable to share because of their disabilities. The Court of Appeal had ruled that the Local Housing Allowance maximum rent provisions were discriminatory because they did not make provisions for this type of situation and discretionary housing payments were not an adequate way of making up the difference as any award is entirely discretionary.

Following the decision in Burnip the Secretary of State failed to amend the 2012 Regulations, instead issuing guidance suggesting that local authorities should deal with such cases by allowing housing benefit to be calculated on the basis of an additional bedroom. The claimants in this case also argued that it was unlawful for discretionary housing payments to be used as a method for rectifying any discriminatory effect of Regulation B13.

Decision of the High Court

  • The law requires the Secretary of State to create a policy that is proportionate. When the Court was deciding whether or not this has been achieved it was important to recognise that the case gave rise to issues of 'high policy'. Therefore, the question to be asked was whether the policy was "manifestly without reasonable foundation".
  • After considering all of the relevant factors, the Secretary of State concluded that the welfare bill needed to be reduced. This is a policy decision that cannot be said to be "manifestly without reasonable foundation".
  • The refusal to exclude some disabled persons from the effect of Regulation B13 and the provisions made by way of discretionary housing payments was a proportionate approach to the difficulties suffered by such people in consequence of the policy unless it was manifestly without reasonable foundation. There was no sufficiently clear class of disabled people who were particularly affected by the new regulations so as to make their use unjustified. The overall ruling was that the new Regulations were lawful in relation to disabled people generally (subject to the earlier ruling in Burnip that disabled children are a special category). Accordingly the claim was dismissed. However, the Court did make two severe criticisms of the reforms.
  • Firstly, the Government had been aware since Burnip was decided in May 2012 that the 2011 regulations had been unlawful in relation to disabled children and yet had not taken the effort to amend them. The Court was less than impressed with this.
  • Secondly, the Court indicated that it was improper for the Government to attempt to rely on "guidance" to local authorities to resolve the illegality that was identified in Burnip. This was significant because it also has a knock-on impact as to how the Government can deal with the similar potential problems raised by the new 2012 regulations. The Court stated that new regulations were required "very speedily" but was persuaded not to grant an order requiring the regulations to be amended at this stage.


Although it has been decided that the housing benefit social sector size criteria rules are not discriminatory, further amendments need be made rapidly following the decisions in Burnip and MA. Despite the Government setting aside £150million for the funding of discretionary housing payments in order to remedy any aspect of the Regulations that would otherwise be discriminatory or otherwise unfair, the Court has made it clear that this too is not an adequate way to resolve the problem and amendments to the regulations are necessary. Meanwhile, the claimants' solicitors have indicated they will appeal.


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