Following a judicial review, the Court of Appeal found in February that a government housing policy was, in some cases, discriminatory.

The much maligned and criticised ‘Bedroom Tax’ was introduced in 2013. In reality, it was a change to housing benefits, and not a tax. Under new rules, families seeking to claim housing benefits have been assessed against the amount of bedrooms that they actually need. If they are deemed to have too many bedrooms, then their level of housing benefits was cut by 14%. The Department for Work & Pensions (DWP) has given local councils money to make discretionary payments to those families facing hardship because of the changed rules.

The changed rules removed a subsidy for spare rooms in social housing. The government line has always been that it is unfair to subsidise spare rooms in the social housing sector, if that subsidy is not present in the private housing sector. Further, the policy aims to encourage people to move to smaller social housing properties, and therefore save nearly £500m a year from the bill for social housing, at a time of economic austerity and government cuts. The removal of the subsidy has proved controversial, and has caused much criticism for the DWP.
Several appeals have been launched against the so called “Bedroom Tax” – some of which made their way to court. In a landmark ruling, February saw the Court of Appeal rule against the government in this matter.

Two separate cases were brought before the three judge panel. One was a legal challenge from the grandparents of a disabled boy. Paul and Susan Rutherford, from Pembrokeshire, claimed that the policy was unfair because their 15 year old grandson Warren Rutherford regularly needed overnight care. The other case involved a victim of domestic abuse. Identified only as A in court,she was still living in fear. She had a panic room installed in her house because of the previous domestic abuse.

Both the Rutherford’s and A had claimed in court that the removal of the subsidy was discriminatory and unfair for their particular circumstances. Both had brought judicial reviews against the government for removal of the subsidy – with the Rutherfords’ judicial review being dismissed by the High Court in 2014.

However, when before the Court of Appeal in 2016, the three judges ruled in favour of both judicial reviews. The Court ultimately found that the “admitted discrimination [in both cases] has not been justified by the Secretary of State”. However, the ruling from the Court of Appeal is very specific and narrow; it will only impact upon, and affect, people within those two groups. The removal of the spare room subsidy is now considered to discriminate against those who are victims of domestic abuse and need specially adapted accommodation (such as a panic room, as in A’s case), or severely disabled children who need overnight care, but will apply to those two categories only.

With the removal of the spare room subsidy having proved controversial, many spoke out in support of the verdict. One of A’s solicitors told reporters that “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.”

According to Michael Spencer of the Child Poverty Action Group, the ruling meant that families “can stay in their homes safe in the knowledge that their disabled children can get the care they need”. Business Minister Anna Soubry MP stated that she “very much hoped” that the DWP would examine the issues again. Shadow Work & Pensions Secretary Owen Smith MP went much further, stating that the ruling gave “a glimmer of hope for the hundreds of thousands of people who have been hit by this cruel policy… Surely the time has now come for the Tories to discover a conscience, listen to the courts as well as the public, and scrap the hated bedroom tax.”

The DWP has spoken of its fundamental disagreement with the verdict, and stated of the removal of the subsidy in 2913 that it is currently “giving local authorities over £870m in extra funding over the next five years to help ensure people in difficult situations like these don’t lose out… We know there will be people who need extra support.” The government has already been given leave to appeal the ruling of the Court of Appeal. The case is likely to be heard before the Supreme Court later this year.

Whatever the outcome of that case, and whatever the reaction to the Court of Appeal verdict – the case of the Rutherfords’ and of A is a triumph for judicial review. The actions of a government body or agency can be challenge before a court if they are deemed to be unfair or discriminatory, and if those actions are neither reasonable nor proportionate. Judicial reviews are part of the constitutional mechanism which calls the government to account, and ensures that the actions of government are lawful. Quoting BBC Legal Correspondent Clive Coleman in this regard “governments may find them [judicial reviews] frustrating, but they remain a critical part of our constitutional arrangements in holding public bodies to account.”

Since the landmark GCHQ Case of 1985, the scope for judicial review has seemingly been widened. 2016 sees more and more areas where a judicial review of the government’s actions or policy can be sought by the public – including housing policy.