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The “bedroom tax” judgment has implications far beyond bedrooms

30 July 2013

The High Court has rejected the “bedroom tax” claimants’ case. In a ruling issued earlier this morning, Lord Justice Laws said that ‘the PSED [Public Sector Equality Duty on the benefit reforms] was fulfilled; and the effects of the HB [Housing Benefit] cap were properly considered in terms of the discipline imposed by the requirement of proportionality.’ On the point of the government providing additional help for disabled people affected by the cap, the judge wrote: ‘provision of extra funding for DHPs [‘discretionary housing payments’] and advice and guidance on its use cannot be said to be a disproportionate approach to the difficulties which those persons faced.’

Laws added that certain arguments of the claimants ‘amount to an attempt to persuade the court to “micro-manage” the policy-making process’. He expanded on this elsewhere in the judgment. Two paragraphs are worth noting because they have a clear bearing on the rows that are brewing between the government and certain legal groups on the issues of judicial review and the European Convention on Human Rights.

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The first relates to the function of the courts (my emphasis):

‘So, as I have said, the discipline of the PSED lies in the required quality, not the outcome, of the decision-making process.  This is well borne out by the learning; but in my judgment it reflects a more general constitutional balance.  Much of our modern law, judge-made and statutory, makes increasing demands on public decision-makers in the name of liberal values: the protection of minorities, equality of treatment, non-discrimination, and the quietus of old prejudices. The law has been enriched accordingly.  But it is not generally for the courts to resolve the controversies which this insistence involves.  That is for elected government.  The cause of constitutional rights is not best served by an ambitious expansion of judicial territory, for the courts are not the proper arbiters of political controversy.  In this sense judicial restraint is an ally of the s.149 duty, for it keeps it in its proper place, which is the process and not the outcome of public decisions.  I would with respect underline what was said by Elias LJ at paragraph 78 in Hurley, rejecting a submission for the claimants that it was for the court to determine whether appropriate weight has been given to the duty: “it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.”’

The second relates to sovereignty (my emphasis):

‘In my judgment some caution is required as regards the use to be made of unincorporated international conventions.  The constitutions of many of the States Parties to the ECHR provide for the automatic incorporation of an international treaty into domestic law upon its being entered into by the appropriate government agency.  The constitution of the United Kingdom does not; such a treaty only has effect in municipal law if an Act of Parliament so provides.  I certainly accept that under our law an unincorporated treaty may be deployed as an aid to construction of an ambiguous statute to whose subject-matter it is relevant (so much has been clear at least since Garland v British Rail Engineering [1983] 2 AC 751); but care is needed to ensure that such a treaty is not seen as a source of substantive domestic legal rights.  The point is important because the executive government, which enters into treaties in the name of the Crown, is not generally a source of law save where it exercises powers delegated by Parliament.’

You can expect both paragraphs to be quoted liberally in the coming months; and perhaps by both sides of the argument. The first obviously limits judicial action; but one might turn the argument on its head and say that the courts cannot properly monitor the process of public decisions if judicial review is diminished. The second clearly reiterates that the courts can only apply conventions that parliament has passed into law; therefore, there should not be ‘judicial creep’ into the ever growing body of international law unless it is passed into British law by parliament. Yet it follows that if parliament abhors present judgments it should stop whingeing about dastardly judges and repeal the offending primary legislation.

PS: Although this “bedroom tax” case was rejected, there is an issue with the government having failed to comply with an earlier judgment in the Gorry case, relating to ‘children who are unable to share because of their disabilities’. Lord Justice Laws, however, said that he expects new regulations to be in place shortly.

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Show comments
  • Jayson Carmichael

    We are one of tha Clients and there is nothing in this about us not having a “spare room” we use both rooms for disability reasons

  • Arten

    How come the Law dictionaries tell us that Acts and Statutes passed by the legislators are not Laws, they are the rules of society. They require consent and are then given the force of Law. That implies we have the right not to consent and a growing number of people including myself refuse to contract with those who claim they have authority over me. When challenged they cannot prove they have such authority and if I don’t consent what can they do. The moment they use force to compel people to bend to their will it becomes tyranny.

    The way to sort this mess out is to go after the legislators all those who have served in government since 1972 have been treasonous and there is a growing campaign to force the Met police to do their job and arrest the traitors. Thus far across England and Wales 11 police forces have recorded the Crime of Treason. I suggest if you want to take the country back you get on board:

    and we are on Face Book

    “A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself. For the traitor appears not a traitor; he speaks in accents familiar to his victims, and he wears their face and their garments, he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist. A murderer is less to fear’.The traitor is the plague”.
    Marcus Tullius Cicero 42 BC

  • anyoldiron

    I would like this present Government to consider other facts. The people elect and pay their representatives in Parliament to Govern this Country the only way it should be Governed, which is according to our long standing Common law Constitution. We pay them through our taxes, we even pay them very generous expenses which, as I rememember it- some took “advantage of” at one time.

    However, previous Governments up to and including this present Coaition Government decided that they wanted foreigners to do the job our own elected Politicians should be doing and they agreed to pay £billions of the people’s contributions to do so. Our Constitution FORBIDS foreigners from Governing us in this Country, and of course two World Wars were fought -by the ordinary people- to prevent foreigners from Governing us, so why should the people elect, or pay any more money to any one of them. They are using the House of Commons for what? To turn out people from Houses they have lived in for years, to reduce their benefits so that our Politicians can continue to pay fopreigners to do the job THEY should be doing? To move people away from those they have known and lived near, perhaps for years. For WHAT EXACTLY? To save money so that YOU can give it away to foreigners to do the job we foolishly elected and pay all of YOU to do?

  • kathleen sweeney

    Its not the disabled that are sick in this country,its us for letting Camoron for getting away with this.Disabled penalised while pedophiles are exempt.Come on Britain stand up for what is right.

  • Joyce Nicoll

    International law has no place in UK courts is the outcome
    of bedroomtax initial appeals

    – quite a shocking statement for a UK appeal court.

    It is clear that as soon as we seek to contravene something
    as fundamental as the Right to an affordable home, many other flaws of the UK
    system come to the fore.

    International legal Rights of Individuals:

    Under the UN Bill of Rights’ Covenant on Economic Social
    & Cultural Rights, it is recognised that we signed up to and ratified a
    commitment to “adequate Housing Rights” under Articles 2&11 and
    as detailed in UN general Comments 4, 5, 7 , 8 & 9. These provide legal
    Rights recognised under article 25 of the UN Declaration on Human Rights and
    fundamental freedoms. Each of these Rights require to be judiciable.

    Donkeys years ago, these rights should have been brought
    directly into UK law. They involve commitment to viewing a property in the
    first instance as the Home of the tenants-(not a financial commodity. Adequate Housing
    Rights are subject to respect and protection by the State. They include the
    need to respect the dignity of the occupants, their right to undisturbed sleep,
    to adequate space (the Bedroomtax also indirectly redefines overcrowding
    criteria in the UK!), to protection of their access to their work, social
    network and school, and most of affordable housing. Affordable is
    defined as rental levels which don’t require tenants to dip into their money
    for other essential bills eg food & energy bills, to meet the cost of rent.
    Rent arrears created by the State imposed lack of affordability due to no fault
    of the tenant and without actual existing suitable alternatives with, may be
    unenforceable under CESCR’s General Comment 7 on forced evictions.

    The UK with its extraordinary over-exposure to the housing
    market, has paid lip-service to these obligations. The EU incorporated these
    obligations more directly via the Social Chapter. The UK kept trying to wriggle
    out of this but does have obligations to rule on this in a UK court using EU
    law. The present cases however were framed in terms of the very flawed UK

    The whole current UK strategy on housing and property market
    is moving away from these international and european legally binding

    The Bedroomtax & Universal Credit/Benefitcap combination,
    appears to lack compliance with these obligations. The UN obligations are to be
    progressively realised. The UK reports back every 5years on its progress. In
    2009 it was recognised that social housing & the package of wages plus top-up
    benefits just and no more started to bring the UK in line with expectations. A
    viewed shared by the European Council when reviewing the UK’s performance on
    social rights. There is no legal scope for a backward step. The new current
    measures are retrograde steps in the realisation to date by the UK of its
    international legal obligations. The Bedroomtax turns an “affordable home” into
    an “unaffordable home”; an “adequate house” into an “inadequate house”; its
    definition of spatial requirement doesn’t even meet the governments own building
    house standards, nor the Scottish law on spatial requirements –
    moreover it is the State who is single handedly doing this. It is causing
    immense distress.

    These Rights are not restricted to those with disabilities,
    though they may qualify for positive discrimination. However the UK has geared
    its Equalities act , Human Rights Commission remit & HRA (UK Human Rights
    Act) in a manner that limits many appeals in the court to being framed as
    discrimination issues at the neglect of citizen’s existing true Rights.

    Moreover the HRA handicaps the UK courts from holding the UK
    government to account on its abuses of legal Rights and makes the courts
    accomplices by omission in taking the position they are unable to protect
    people and uphold their Rights.

    The court’s true obligation is to interpret the law in a manner that best respects and protects such Rights. Under EU law, the bedroom tax etc appears to breach the Convention on Social Rights and the treaty of EU.
    Whilst HRA may not include the issue of property (the money the tenants
    has to use to make good the shortfall in rent from the Bedroomtax , is his
    income ie his property), this is covered in ECHR (plus the UN Declarations on
    Human Rights) and the UK courts require to act compatibly with ECHR not just
    HRA. As this is an overarching obligation on the Courts, it would seem reasonable
    that even where such an argument was not directly raised, the court could have
    found a means of ensuring its own decision did not fail to respect and protect
    that Right and its own obligations under European-law.

    The UK has recently refused to signup to the UN Optional Protocol giving UK citizens a directly Right of appeal to the UN on breach of CESCR, which would have addressed the frustrating lack of power the High Court has felt.

    Most shockingly, the UK HRA introduces a “Nurnberg defence”
    which legally excuses public officials and organisations from harming vulnerable
    people and acting otherwise unlawfully, as they cant be held accountable for
    doing something a government law or rule instructs them to do. If they were so
    asked to shoot all benefit recipients, they would be excused in the court for
    doing so.

    Current Government approach:
    The government is insistent on having a property-inflation
    based “recovery”.

    It is high Risk.

    It ignores its existing legal obligations under “Adequate Housing”.

    Existing obligations & responsibilities:

    The UN obligations include the obligation to be able to hold
    government to account. That is systematically obstructed in the UK due to lack
    of appropriate legislative provision. In short, the legislators are obstructing
    the judiciary. The moves to reduce affordable access to civil legal aid plus
    the moves to restrict judicial reviews are legitimate causes for further concern
    about the ability of the judiciary to meaningfully exercise its independence.

    What kind of society do we want?

    There is a need for statutory provision of economic and social Rights in the UK.

    We can’t simply keep opting out of international agreements and bodies to suit a short-term Party political interest.

    Two wrongs don’t make a right in international law.

    Undermining the Rights of the vulnerable tenants with the
    alleged intention of housing those on a waiting legally incompatible. Moreover
    the Chartered Institute of Housing in its guidebook for social landlords,
    warned ahead of the Bedroomtax introduction, that Social landlords should
    expect to have MORE voids as a result of the Bedroomtax as there would be less
    flexibility for matching their existing properties to the Bedroomtax-profile of
    those on the waiting list.

    The government already knew there was grossly insufficient
    scope for people to move, and even less so for those with special needs. The
    Discretionary housing Payment is a short-term arbitary measure, already grossly
    under-funded. Those receiving it , mostly disabled people, are being asked to
    provide their moving or lodger plans in order to meet their medium-term needs. Just
    which lodger would choose to move in with a person’s zimmer-frame in their
    cupboard-like “spare room”, is unknown. The government relies on 80%
    not moving ie digging into their food budget to pay the short-fall. The effect
    on mental health is already showing n- including suicides. Undermining access
    to decent food is hardly likely to assist the NHS budget.

    The Bedroomtax and benefits reforms as a system has heralded
    a radical change of the relationship between social landlords and their tenants.
    The various measures change the social landlord from a source of social support
    into a debt collector. It relies on an unprecedented secret “Snooper’s Charter” for landlords, which has received little coverage. The pending Universal Credit introduces a further layer of uncertainty on rental payment for the landlords, which is being offset by further government endorsed raising of rental levels (5.9%+) despite parallel undermining of actual income by real inflation. Already social landlords are seeking to rid themselves of tenants more at risk of non-payment, which are usually those with most support needs and for which the SRL receives funding to provide. The main funding provided for advising people about their Rights, has been given to the social landlords. The Government has built in a series of structural conflict of interest into the whole process.

    The UK punches high on the International platform. It requires to be honourable and to set standards. Particularly the issue of respecting Economic and Social Rights is pivotal in how the world shall respond in the post-GFC era.
    Much of UK consumer law is derived from a snail in a bottle.
    Perhaps how we respond to the Bedroomtax shall determine how we respond to a sustainable economic recovery from the GFC.

    The UK is a leading player in the global financial sector
    and on how to respond to the global financial crisis. It remains a leading
    global economy. It is seeking to increase its international political and
    economic weight. Yet it has had accelerated polarity of wealth, unmatched by
    other EU member states, accompanied by growing levels of absolute and relative
    child and adult poverty.

    It is a determinant member of the EU and influences how the
    EU responds to the global financial crisis. It is seeking to remove itself and
    all other member states from EU obligations on social and employment law. Plus
    dismantle existing EU infrastructure geared to protect economic social and
    cultural rights. The EU is the world’s largest economy and trading bloc. It accounts for 29% of global economic output, 15% of global trade in goods and 24% of overall
    global trade – the UK influence is important.

    The UK also has duties of care towards members of the
    current and former Commonwealth and obligations as a member of the EU.

    UK law provides a model for several judicial systems around the world.

    Way forward:

    Parliamentary sovereignty in the UK stems from Parliament
    reclaiming powers for the Citizen from a Crown that was seen to be out of touch
    with its citizens’ needs. There is Risk the UK government is abusing its
    position. The Court may well uphold Parliament sovereignty by ensuring that
    those exercising legislative power does not infringe the legal Rights of its
    Citizens…this being the basis upon which the Courts were secured their
    autonomous position as part of that assignment of parliamentary sovereignty.

    I encourage the Courts to do what it does best – be brave and honourable.

    Kind regards


    • madasafish

      Far too long to read.. inappropriate for an internet forum.
      Waste of time.

      • Ulysses Returns

        She is a failed prospective parliamentary candidate for the egregious Hilary Armstrong’s North-West Durham seat; a tedious blogger on labourblog and obviously part of labour’s rebuttal squad (in the same coghort as telmucker, lindsay et al). I also did not read it but is is interesting and instructive that the Spectator, a champion of freedom, allows this turgid crap while we are likely to be barred from LabourLost or pre-moderated at the Guardian.

        • madasafish

          She obviously has zero common sense. Any fool knows that an on-line reader baulks at long paragraphs, big words and legalese.
          And pre-prepared speeches – such as hers – stick out like a sore thumb, And are regarded with suspicion as evidence of likely ranting or people on a mission.

          No wonder she’s a “failed ” candidate. Needs to get out of her comfort zone = obviously ranting lefties – and into the real world..

          But then she’s obviously got lots of time on her hands. (as I have but I’m an OAP:-)

    • itdoesntaddup

      How’s your dental insurance?

      • dalai guevara

        It appears the poster has identified herself by name. What more could you ask for, that’s transparency in my book.
        If you wished to get access to her dental records, a simple NHS log-in code will suffice, or we could call our mates in Cheltenham and see what they can do.

  • itdoesntaddup

    Expect much wailing a gnashing of leftie teeth. Have they got dental insurance?

  • Robert_Eve

    Give the judge a medal!!!!

  • Aaron D Highside

    Could Lord Justice Laws tell us if the BBC licence fee is really a TV tax?

  • Barry

    Nowhere in the judgement were the weasel words “bedroom tax” employed, so why is the canard being repeated in this article?

    • Dan Grover

      It’s in quotation marks for a reason; Whether we like it or not, it’s the name by which it is most commonly referred to.

      • HookesLaw

        Only because of slack and prejudicial reporting. Why perpetuate it?

    • DBlackburn

      Thanks for your comment. I’ve changed the single inverted commas around the term into double marks in order to differentiate between the term and the judge’s words. I used the term ‘bedroom tax’ for ease of reference online – it being a more widely searched term than ‘housing benefit change’ or ‘spare room subsidy’. As the piece is about the far reaching consequences of a small part of a court judgment, and not the substance of the policy, I’m not bothered about using the most widely recognised term to ensure that people know which judgment I’m talking it.

      You do, though, raise an interesting point about Labour’s ability to find catchy terms to make a political point. ‘Bedroom tax’ is wholly misleading, but utterly inspired. ‘Spare room subsidy’, which was the PM’s alternative, is accurate but very bland. I think this explains why ‘bedroom tax’ has stuck.

      • Ulysses Returns

        “Bedroom Tax” has stuck, not because it was utterly inspired, but because you lot in the media, labour, and especially the BBC, see everything in terms of taxes and cuts and not, as any sane person would, as subsidies, handouts and an inappropriate use of public funds. It’s only a tax when it is by a conservative government; either described as a tax on the poor, or a tax cut for the rich, even when both are patently not the case. When applied by labtard, it is of course described by the lefties and the piss-poor media as an “investment” or “progressive” or some other misuse of the English language. I was listening to Martha Kearney’s World at One on BBC4 today and the judgement was described as “the disabled lost the case but the government were told that they had to amend the regulations, blah blah blah – it is beyond the milksops at the BBC to state the case clearly: the Government won, welfare dependency lost.

        • DBlackburn

          On numerous occasions throughout this parliament, the government has allowed its reforms to be defined by the opposition’s terms. ‘Bedroom tax’ is the best example of this, although there have been others (eg, the spending/investment-driven NHS policy). The welfare reform in question was designed to widen and speed up people’s access to social housing, so it could have been called “The Fast Access Scheme”, “The Tenants’ Charter”, “The New Homes Deal” – or anything along those positive lines. Instead they dithered and Labour, who are good at this kind of politics if nothing else, struck with ‘Bedroom Tax’, which is an inspired piece of cynical politics aimed squarely at the party’s base and the prevailing public suspicion that the Tories are ‘nasty’.

          Of course it’s nonsense (and I’ve repeatedly written so), but it’s not the media’s job to act as the Conservative Party’s communications department.

          • Ulysses Returns

            Or Labour’s communications department, but so often by omission, or commission, that is exactly what you do. I may be unfair in lumping you in with your colleague Ms Hardman, but heck, life and politics, and journalism are unfair.

            • Colonel Mustard

              “Somebody” is at work censoring comments they don’t agree with by clicking on the “flag as inappropriate” button. The process is mindless so once the button is clicked the comment goes into moderation, regardless of content.

              No point commenting here with the amount of socialist troll sponsored mischief going on.

              • Ulysses Returns

                I see what you mean. What a useless feature. Now if only there was a flag as useless labtard troll button…….

                • Nicholas chuzzlewit

                  Bring it on!

              • tele_machus

                As a frequent victim of this I fully agree
                Further 3 of my 4am comments on three successive threads were disappeared altogether today
                I regard this as mindless
                As will be apparent telemachus is unbothered by abuse but wishes to be heard

            • dalai guevara

              Could I perhaps shed some light on this from another perspective? Whenever I make reference to yellow bodily discharge, my post does not even get onto the board. It’s a fully automated affair, apparently.
              So you have an elevated status here, Ulysses. Be thankful.

              • dalai guevara

                Oh dear, it appears I am wrong.
                Someone broke the disqus, it’s clearly no longer working. Now that we are all at the mercy of a terrorising minority, will someone now offer improvements to ensure totale Gleichschaltung?

            • westerby1

              The people with mental health conditions, who claimed that the work capability assessment discriminated against them, won their court case, the government lost. The government then began stating that they had improved the test, installed Mental Function Champions at Atos assessment centres and that they would appeal the decision blah blah blah.

          • 2trueblue

            Certainly it is not the medias job to act as the Conservatives communications dept, but with newspapers I have a choice, I can purchase which ever one I want/agree with. With the BBC I have to pay the fee and listen to continual Liebore biased news interpretations and ‘rent a mouths’ from the same whenever the BBC wish to push their view. The BBC are also the only reason that the Gaurdian newspaper is in circulation, which is another cost that we the taxpayer bear.

    • Simon Cohen

      My own M.P – a Tory, and supporter of the policy used this term!

  • richardabcblue

    To justathought
    “who’s” is an abbreviation for “who is”. The possessive pronoun you need is “whose”

  • Justathought

    As the judgement says there is ample funds and advice available to those who’s particular circumstances can be accommodated properly.

    This ruling is welcome in that it clarifies the constitutional relationship that exists between judges and government and the sovereignty issue in regards to application of treaties to UK law.

    Ordinary people will be relieved that finally the government is addressing homelessness and the under-occupation of scare resources, namely social housing.

    I expect that the taxpayers have paid a princely sum in legal aid and am disappointed that this is continuing unabated.

    • Simon Cohen

      What! What sort of cloud cuckoo land do you live in -the policy isn’t working and is a blunderbuss causing random suffering and does not target overcrowded families with geographically purposeful arrangements! Some areas are now left with excess 3 bedroom houses that they are considering knocking down. This is not a matter of left or right as many of the illiterate and crass minded fools think – it is about treating people with dignity. This country has become a moral dustbin and to think the Nazi’s were fought for this. And before you label me as a leftie, I’m a very sympathetic supporter of the Tea Party founder and avid free marketer Karl Denninger who realises that real estate scams and property booms destroy communities – but then many of the people on this blog don’t care about that as long as they have their daily serving of Shadenfreude. None of you probably raised a finger at the 1.16 trillion to bale out banks or the QE that has been used on the FOREX rather than circulating wealth properly! You consider yourselves free market people but are in reality brown nosers of the oligarchy and debt peonage.

  • anyfool

    So this implies judges have gone to far in the past, but want more powers in the future, to stop them getting carried away with themselves again?
    It also implies that a lot of judgements have been made that governments need not have put into law or could have just ignored them for civil purposes?
    Clear as mud, put your own spin on it, looks more to the point.

    • HookesLaw

      What chance of clarity when journalists call it a bedroom tax when it is not a tax?

      • Dai Station

        I first heard the label ‘bedroom tax’ used on either BBC or C4 in the context of reducing the subsidy for the community charge for those considered to have surplus bedrooms. That meant those affected did have to pay more tax than previously so, although a bit convoluted, calling it a tax was not unreasonable. However, it then became conflated with the loss of housing benefit which isn’t anything to do with tax (other than taxpayers are funding it) so the terminology became confusing.

        I have a lot of sympathy with some of the people affected by this policy because implementation has been too fast for them to sort things out. But media commentary is usually too superficial. For example, extra rooms specific to the needs of a disabled person used to attract a community charge discount. Has this gone? DLA/PIP at the higher rates is about £7k per year, or 4k plus a motability car, so some would argue that the taxpayer is already providing for the extra need. The difficulty of course is that the DLA money is often already integrated into the household’s basic budget (especially if that is low) and the specific purpose of it has been forgotten. Maybe PIP should be modified to include an element for extra living space requirement rather than money going to councils to apply as a discretionary grant.

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