Liz Davies explains that, although the courts may be able to help a few individuals, we need to step up the political battle.
Judges – and lawyers – can’t be trusted to uphold social justice.
In July, two senior judges dismissed the challenge brought by disabled people against the bedroom tax. They found that penalising disabled adults who needed an extra room for one of them to sleep in, or to store equipment in, might be disability discrimination but was still legal.
On September 25 the Court of Appeal granted the applicants permission for their appeal to be argued, probably some time early in 2014. The Court of Appeal has the chance to put right a horrendous wrong and allow some flexibility in the housing benefit rules for people with disabilities.
Another judicial review brought by Liberty is in the pipeline, arguing that the bedroom tax should recognise that separated parents whose children visit but do not live with them need extra bedrooms.
There have been a surprising number of sympathetic tribunal decisions at a lower level. First-tier tribunals have heard appeals by social housing tenants that they should not be subject to the bedroom tax so their housing benefit should not have been reduced.
Tribunals in Fife, Hereford, Middlesbrough, Manchester and London have found in particular cases either that rooms designated as bedrooms were not in fact bedrooms, or that disabled adults need additional bedrooms.
Some of those decisions will be appealed by the local authority, which is responsible for distributing housing benefit, and may be overturned. For the moment however there is some relief for those tenants as their housing benefit is no longer being cut.
Obviously it is only the unusual and successful decisions that are reported. It is impossible to know how many appeals might have been unsuccessful.
And the decisions don’t – and can’t – strike at the principle of the bedroom tax. Arguments have focused either on room size – too small to be used as a bedroom – or disabled adults needing an extra room to store essential equipment in.
One tenant in Fife, who was brave enough to argue that he needed a “spare bedroom” to store his gardening equipment in, did not win. If the tribunal had agreed with him, it would have been a head-on political challenge to the whole concept of the bedroom tax.
Some social landlords have been reclassifying properties as having fewer bedrooms. That creates problems for the landlords in the future – once a property has been reclassified from three bedroom to two bedrooms, it’s very hard when it becomes empty to offer it to a family needing three bedrooms. But it provides immediate relief for the tenants and is welcome.
In the meantime some social landlords are starting to bring possession cases against tenants who have accrued rent arrears because of the bedroom tax.
Will the courts order that those tenants should be evicted? We don’t yet know. The legal argument is tricky – from the landlord’s point of view it is difficult to allow a tenant to remain in their home if they cannot afford to pay the rent, and so arrears will keep accruing, potentially with a knock-on effect of rent rises for all tenants in the future.
From the tenant’s point of view it is their home. They’ve tried to find smaller properties but none are available and it isn’t her fault that they cannot afford to pay the shortfall between housing benefit and rent.
Courts are not used to this dilemma. Normally when council or housing association tenants face possession because of rent arrears, all the different organisations involved work together so that the tenant can pay their rent, stay in their home and pay something toward the arrears. The courts have not had to deal with a tenant who is simply too poor to pay their rent and stands to lose their long-standing home.
The moral argument, on the other hand, is absolutely clear. No-one should lose their home because of poverty.
Ultimately the bedroom tax campaign will not be won in the courts. Courts can make a difference for some individuals, and can temper the effects of the bedroom tax for particular cases, such as people with disabilities.
But we need to scare politicians – Conservative, Liberal Democrat and Labour – so that they will lose their seats if they don’t commit to repealing the bedroom tax.
That’s one of the lessons from the poll tax campaign, where Tory MPs were so scared of electoral defeat that they turned on Thatcher.
The huge difference between the poll tax and the bedroom tax is that the latter is a tax on the poor, not on everyone. The Tories and Liberals reckon that the poor don’t vote for them anyway.
Our job is to show politicians that the bedroom tax is so wicked and unjustifiable that it is an electoral liability, whether their voters are rich or poor.
That involves resistance to evictions, continuing the pressure on local councils not to evict tenants because of the bedroom tax and standing shoulder to shoulder with those who face eviction.
This article was first published in the Morning Star. Liz Davies writes here in a personal capacity.