Appeal court extra room ruling helps disabled People
Burnip v Birmingham City Council & Anor  EWCA Civ 629 (15 May 2012)
3 August 2012
In a unanimous ruling, the Court of Appeal has held that the size criteria in the housing benefit regulations discriminate against disabled people, because they do not allow for an additional room to be paid for where a disabled person has a carer, or where two children cannot share a room because of disability.
The decision concerned Ian Burnip and Lucy Trengove who needed 24 hour care, which required carers to work in shifts and Richard Gorry who has two disabled daughters who cannot share a room because of the nature of their disabilities.
Since the case began, the rules have been amended to cover the circumstances of Ian Burnip and Lucy Trengove, but not to cover the situation of Richard Gorry. This ruling is therefore most important where a room cannot be shared because of disability.
The issues in the case were
Whether the rules discriminate against the Appellant by comparison with a claimant in the social rented sector with two children who cannot share a room because of disability contrary to Article 14 taken together with Article 1P European Court of Human rights (ECHR). A tenant in the social rented sector would have all of his rent met by housing benefit, since housing benefit the social rented sector is not currently subject to restrictions under the size criteria (The government plans to change this under the Welfare Reform Bill with effect from April 2013).
Whether the rules discriminate on grounds of disability by comparison with a housing benefit claimant with two children of the same sex who were not disabled, whose HB met their full housing needs, contrary to Article 14 taken together with Article 1P ECHR.
Whether the rules discriminate on grounds of disability by failing to treat the claimant differently from a housing benefit claimant with two children who were not disabled, by not paying him an additional amount to cover a bedroom for each of them, contrary to Article 14 taken together with Article 1P ECHR.
The ruling states that there is a ‘prima facie’ case of discrimination for purposes of Article 14 of the ECHR, and that the Secretary of State had failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria.
The Secretary of State has applied for permission to appeal the decision to the Supreme Court on the grounds that the use of the size criteria in the Local Housing Allowance (LHA) is either not discriminatory or else can be justified. Should the appeal succeed this would affect the decision in relation to Richard Gorry and his two disabled daughters. The DWP has issued guidance, HB/CTB A6/2012, which suggests that lookalike cases should be suspended pending the outcome of the appeal.
The Prime Minister is proposing denying under-25s any housing benefit after the next election.
The National Private Tenants Organisation warn: ‘This could lead to poverty, hardship and homelessness and a generation of
young people trapped at home. This would hit those struggling on a minimum wage in areas of inflated rents and where there is competition for accommodation, particularly hard. Estimates put the number of people under 25 claiming housing benefit at around 380,000.’
Following our meeting with the Housing Minister’s office, they are asking for evidence on how landlords are consulting about the Localism Bill. They want examples of council and housing association landlords failing to consult tenants fully on any proposed changes in tenancy strategies – eg use of fixed term tenancies and up to 80% market rents; changes to who can go on the waiting list and rehousing for homeless etc. They also want evidence that 2-year minimum tenancies are being proposed or used other than ‘exceptionally’. Send any evidence to Housing Emergency: firstname.lastname@example.org or by post: Austin Mitchell MP, House of Commons London SW1A 0AA
Can you help?
Tue 26th June at Brighton Conference Centre Leafletting Unite union conference – call Eileen 07432 098440 to help
Wed 27th lobby National Landlords Association in London Meet 8.30am Vauxhall tube email email@example.com to confirm
Sat 30th Defend Council Housing national meeting 12-4pm Trades and Labour Club 200 Duke St Sheffield – all welcome
And let us know if you are organising meetings, protests or lobbies
As the deadline for the Government to haul the Welfare Reform Bill through parliament draws dangerously close and its implementation looms large I want to make sure that YOU know how it might affect your life.
It is a government and media peddled myth that this bill is about the unemployed. It’s not. This bill will affect millions of employed people as well as millions of disabled adults and children. This bill is not designed to solve the problems of worklessness and benefit dependency as I will explain. this is about money, money for the treasury that none of YOU will see a penny of.
The Welfare Reform Bill will pave the way for Universal Credit which will replace the following benefits (of which some of YOU will be in receipt of)
Income Based JobSeekers Allowance
Income Based Employment and Support Allowance (ESA)
Child Tax Credit
Working Tax Credit
Disability Living Allowance DLA will be replaced with PIP (Personal Independence Payments)
If your household has a higher rate tax payer you will no longer be entitled to Child Benefit.
Council Tax Benefit will be the responsibility of your local authority who will be required to save 10% of the budget annually, therefore reducing the amount of people who claim that particular benefit. Pensioners are protected.
The Social Fund will be abolished. Funds for this kind of financial help will be the responsibility of local authorities. The funding will not be ringfenced so councils are free to use it in any other area. Currently anyone can apply for a crisis loan, even YOU.
So, if you use any of the above the government are after YOU!
It’s you they want to move out of the area, it’s your children they want to go to another school, its your shopping money, rent money, bill money they want to take away, not just mine.
Don’t forget the benefit cap. £26,000 a year, that’s £500 a week and £18,200 or £350 a week for a single person without children. (read the equality impact assessment) I can hear you screaming now, regurgitating that rubbish ‘hard-working families don’t earn that much!’. You are absolutely right because if you were earning £26,000 a year you would also be receiving child tax credits if you have children, working tax credit, perhaps housing and council tax benefit as well and of course child benefit, so in reality your income would be a lot higher than £26,000 and your child benefit can’t be taken away if you naughty people dare to receive more than £500 a week. Get the calculator out and work out how much YOU get or should get in benefits!
I’d like you to remember that when thousands of families are forced out of other areas into yours you will have real problems finding cheap accommodation because there will be more people and less available houses. There will be more children in the schools, more strain on local services including the NHS. When you scream that those ‘scroungers’ should move out of London, remember, they’re coming to your town or city sweetheart. It’s also worth noting that many people who currently live in rural areas will suffer and have to move as well. You’re local authority will also be paying for the cost of temporary housing and the other costs that come with homelessness if anyone in your area is evicted because of these changes. It’s far cheaper to just scrap the cap. Housing benefit was capped a little while ago anyway. at a maximum of £400 a week for a 4 bed property, £250 a week for a 2 bed property. Single people under 35 only qualify for the shared room rate, which previously applied to under 25′s. That has already seen people evicted from their homes. The ‘family friendly’ Tory party have also made it a lot harder for non resident parents to have overnight access to their children by reducing the housing benefit available to single under 35′s. A far better solution would be to cap private rents, that would save the government a fortune in benefits but some of them are landlords so maybe not.
God help you if you or your relative is disabled or ill. The Government don’t like you. They don’t like your disabled friends or neighbours either. If you are unfortunate enough to get cancer the government have decided that you have 12 months to be cured, otherwise, if your partner earns the enormous sum of £7,500 a year they’ll cut your ESA completely. (That applies to anyone claiming it by the way but we hoped cancer patients might at least be exempt from this nasty condition)
They will replace DLA with PIP which most people wont be eligible for even though they have serious illnesses and/or disabilities. Those people will be told they’re simply not ill or disabled enough and will be left either appealing, which is a very long distressing process, or left without. Just in case you read the daily mail I can tell you, hospital visits, additional aids to manage with illness and disability and day to day living requires extra financial help for many people in that position. I know from experience with disabled and seriously ill relatives that these things cost money many simply don’t have. Also the ‘free cars’ you have read about aren’t free, they’re paid for with the mobility component of DLA so people are actually paying for them with the money they get to help them. I’d say that’s fair, wouldn’t you? It’s worth bearing in mind that DLA is not means tested.
The Government also decided it would be a lovely idea to cut the disabled element of tax credits (Universal Credit when it switches) in half for disabled children who receive the lower rate of DLA. Delightful. That means people like one friend I have won’t be able to afford the petrol for her car. Her son can’t use public transport for various reasons, her car means she can take him out instead of staying in all day. It means she can safely take him to school and the family can lead a normal life. No petrol means an extremely difficult time doing the everyday things YOU take for granted.
On the subject of disabled children, the Government have decided it’s a good idea to prevent young people who have never worked due to disability from being able to claim contributory ESA. Currently they can.
There will now be a penalty for ‘under-occupation’. If you have a spare room and you receive housing benefit you will now be penalised for it, even if it’s for your kids who stay at the weekend, or to store any equipment you need to help you live a full life, such as a wheelchair or a commode. You’re going to be charged for that even if you’d like to downsize but can’t because there are no available properties in your area.
There are a few other gems in the Welfare Reform Bill that haven’t been very widely publicised. Yes, I’m a geek, I read the entire bill, twice actually.
When your youngest child reaches 5 years old you will have to get a job. You will no longer just attend a work focused interview, you will sign on and get a fortnightly interrogation, so if you have a full time job, hang onto to it dear.
Such things as work focused interviews will look like a fairytale compared to the conditionality in store for you under the Welfare Reform Bills proposals.
Being in work is not a safeguard against DWP intrusion. There will be in work conditionality as well.
If you do not work enough hours or earn enough money DWP will be well within their rights to haul you into the jobcentre and tell you to increase your hours, get a second job or beg your boss for a pay rise. Yes really! If you do not comply you can be sanctioned (I’ll get to sanctions in a minute). So be afraid, be very afraid.
Now, sanctions. For a first sanctionable offence you can have your benefits stopped completely for a month (4 weeks). You can ask for a hardship payment but you will have to pay that back, it’s not free and won’t be as much as what you would normally receive. For a worse offence you starve for three months, for a serious offence you lose everything for three years. Yes, that’s right, three years! You should also be aware that DWP staff on the frontline are given a quota of how many people they have to refer for a sanction currently, whether those people have committed an offence or not, so you could be completely innocent and still lose out for a month, three months, or three years. Sanctions don’t actually work anyway. There has been much discussion in the commons. Chris Grayling says the Government plan to exclude child and housing costs from any sanctions but still, three years is a long time.
Conditionality does not stop there either. You can be required to improve your personal appearance. Quite what that could entail I do not know. It could be anything from have a bath, washing your clothes or remove your piercings, cut your hair etc. There are no specific details in the bill:
6C Work preparation requirement
(1) In this Act a “work preparation requirement” is a requirement that a
claimant take particular action specified by the Secretary of State for the
purpose of making it more likely in the opinion of the Secretary of State
that the claimant will obtain paid work (or more paid work or betterpaid
(2) The Secretary of State may under subsection (1) specify the time to be
devoted to any particular action.
(3) Action which may be specified under subsection (1) includes in
(a) attending a skills assessment;
(b) improving personal presentation;
(c) participating in training;
(d) participating in an employment programme;
(e) undertaking work experience or a work placement;
(f) developing a business plan;
(g) any action prescribed for the purpose in subsection (1).
The section above also states you can be forced to undertake work experience/placement. That, I assume, means the work programme. Working for your benefit, essentially for free. (If there’s enough work available for the work programme there’s enough work for a proper job).
There is a clause in the bill which states:
6 (1) This paragraph applies in relation to an award of universal credit where the
calculation of the amount of the award includes, by virtue of any provision
of this Part, an amount in respect of particular costs which a claimant may
(2) Regulations may provide for liability to pay all or part of the award to be
discharged by means of provision of a voucher.
(3) But the amount paid by means of a voucher may not in any case exceed the
total of the amounts referred to in sub-paragraph (1) which are included in
the calculation of the amount of the award.
(4) For these purposes a voucher is a means other than cash by which a claimant
may to any extent meet costs referred to in sub-paragraph (1) of a particular
(5) A voucher may for these purposes—
(a) be limited as regards the person or persons who will accept it;
(b) be valid only for a limited time.
So ladies and gentlemen, if you are awarded Universal Credit DWP are well within their rights to pay you in vouchers for ‘particular costs which a claimant may incur’. Someone else may know better but as far as I know that could be food, clothing and rent. I had no idea I lived in America. I don’t know if this only applies to special circumstances.
We should not forget changes to the way the CSA works. This applies to those of you who may become a single parent in the future or who have a precarious personal arrangement with a non resident parent (NRP), whether you work or not. The Government originally wanted to charge you £100 up front to access the service (£50 if you’re on benefits). They ‘promised’ to change that to £20. They also want to take between 7% and 12% off every single payment destined for your child(ren) from the NRP. So if your child receives £100 a month from your ex, they will, in reality, only get between £93 and £88 a month instead. The Government will be pocketing the rest. No one knows what’s round the corner, any of you could find yourself bringing up children alone.
Also, if you make a claim while in a couple, an error is made and repayment is required, any claim you make either alone or jointly with someone else will be liable for the repayment if it has not already been repaid.
Being part of a couple does not exempt either of you from conditionality, in work or not. You will both be required to conform to the same rules or face sanctions when your child(ren) are a certain age and when your youngest is 12 you will both be required to work full time, there will be no option for one of you to have part time hours. Welcome to the end of one of you staying at home to care for the children, or being there when they leave for school or return home, there will be no designated care giver, you both have to go to work now. Of course your long hours and lack of family time will be blamed for the ‘feral youth’ but only after lone parents have received a good dose of demonisation first.
No one is sure how childcare will work. Currently working families can claim a childcare element of working tax credit which allows for up to 70% of your childcare costs. The details of future arrangements are not clear.
Personally, I’m bricking it. My plan was to try and work part time when my youngest started school (providing there’s an actual job to have!) but part time is out of the question now to avoid the in work conditionality. I have a 2 choices, pay for childcare (providing I have sociable shifts, I don’t know any childminders who start at 5am!), or I make my oldest child sacrifice her own future to become a substitute parent to her younger brother and sister. That’s the girl who wants to go to college and university and really make something of herself. I could ask her to stop all that and please Mr Iain Duncan Smith by being my unpaid childcare. Or`I could find a rich man willing to take on me and the kids, sell my soul for money. That might please the Government. Decisions, decisions.
On September 13th the Welfare Reform bill passes to the House of Lords for debate and to be voted on. This bill is based upon the ‘Universal Credit: Welfare that Works’ white paper that puts forward the Condem’s proposals for reforming welfare to work incentives, to simplify the benefit system and to tackle administrative complexity.
In short it seeks to destroy the welfare state as we know it and in many cases slash benefit claims to the point where increased poverty and homelessness will result.
DPAC say that Disabled People and Disabled Children should not pay the price for welfare reform. Please email as many Lords as you can. This needs to be done now or very soon so please take a few moments to do this if at all possible.
A full list of Lords email addresses can be found here or at this blog
We are writing to express our concern over numerous aspects of the current Welfare Reform proposals which you are now being asked to consider and vote on. Many of these measures will adversely affect the lives of disabled people and children and will in many cases remove disabled people’s rights supposedly guaranteed under the UN Convention of Rights of Persons with Disabilities. If passed as they are many of these changes will result in widespread increases in poverty and homelessness.
A number of our concerns include the introduction of Personal Independence Payments to replace Disability Living Allowance with a stated aim of reducing the number of claimants by 20% when the fraud rate for DLA is according to DWP figures only 0.5% and the social security advisory committee have said they can see no reason for the changes. Re-testing of claimants regularly although their conditions will never change will be a further waste of public money and will merely add another test for disabled people to fear.
The proposed removal of the Mobility component of Disability Living Allowance from all residents of care homes, resulting in a fall in their incomes of 66% and leaving them with only £22 a week for all extra expenses will cause genuine distress for many residents as well as in most cases removing from them a right to family life. Many disabled people living in residential homes use this component to pay for either a mobility aid such as a wheelchair or to pay travel costs to see family and friends. One care home resident tells us that he has to pay his home 65p per mile to travel anywhere although the home is paid over £1,000 per week for his care and the drivers are volunteers. This is typical and without mobility allowance many disabled people will effectively become prisoners.
The proposed abolition of the Independent Living Fund coupled with the reduction of local authority funding will result in massive numbers of disabled people losing their right to live independently in total contradiction to the UNCRPD which was ratified by the UK government. This fund should not be scrapped without an adequate and ring-fenced alternative being put in place. In other countries where similar moves have been made the costs to the state increased as large numbers of disabled people ended up being admitted to hospital for lengthy periods of time. This proposal in particular will be disastrous for disabled people’s rights.
Restricting the amount of Housing Benefit entitlement to social housing tenants whose homes are larger then they are deemed to need is ill thought out as many disabled people have had costly adaptations made to their homes which they would lose if forced to move. There is also a massive lack of accessible properties available anyhow thus making it almost impossible for disabled people to find alternative accommodation. Further for anyone with a visual impairment or a learning disability it is often vital for them to remain in surroundings that they are familiar with and to maintain contact with medical and other professionals who know them well.
Another potential problem with housing is that the bill will link Local Housing Allowance rates to CPI index, which excludes housing costs. Already with the changes to LHA made it is becoming increasingly difficult for disabled people who have additional housing needs eg. to use a wheelchair, or have non-resident carers to find accommodation they can afford in the private rented sector.
Limiting of Employment and Support payments to 12 months for those in the Work Related Activity Group seem particularly illogical as disabled people’s impairments are not likely to go away and may in fact deteriorate. It ignores the effects of chronic, fluctuating conditions such as MS, ME, inflammatory bowel diseases etc.
In addition, the universal credit and welfare reform will bring in ‘a commitment’ for those who fail to ‘apply themselves’ to proper work seeking activities to tougher sanctions. Once again this will not address the complexity of employment related barriers that disabled people face, even if they really are ‘fit for work’. Cuts to Access to Work funding will put in place additional barriers to disabled people in trying to secure employment.
Caps on the total amount of benefit any claimant can get, for both housing needs and living expenses. The suggested total amount is £500 per week regardless of family size, or costs of housing. Ian Duncan Smith says this is to ensure that work pays however it totally ignores the multiple barriers that disabled people face in entering and remaining in the job market, and the fact that many families with disabled children are forced to give up work to care for them due to the lack of adequate alternatives.
Many families with disabled children will face a cut to the financial support they receive. The new system will result in these children losing up to £1400 per year The Government estimates that 100,000 disabled children would lose out under this change.
The reforms suggest that all claims should be processed via the internet which is not accessible for many disabled people. What alternatives are being proposed for those who do not have or cannot access this method of claiming.
We hope that you will ensure these issues are fully addressed before you vote on this bill, the future of disabled people now lies in your hands.
Thursday 14th April is the next day of action against welfare cuts. In Islington there will be a protest at 8.30am to 9.30am outside the Atos Healthcare assessment centre at 1 Elthorne Road, just off Holloway Road, 2 minutes walk south from Archway tube.
This private company gets paid millions to carry out dubious medical assessments for Employment and Support Allowance (ESA), which is replacing Incapacity Benefit.
Atos Healthcare has been awarded a £300 million contract by the government to carry out ‘work capability assessments’.
It’s claimed that assessments are to test what people can do rather than what they can’t. The real purpose is to strip benefits from as many people as possible.
This testing system has already led to people with terminal illnesses and severe medical conditions being declared fit for work and having benefits cut. GPs are ignored in favour of decisions made by Atos’s computer.
Plans announced for the scrapping of Disability Living Allowance mean this intrusive testing is likely to be extended to everyone on some form of disability or health related benefit.
Meeting @ Leeds Train Station 10am before moving to picket ATOS from 10:30 for an hour then move onto A4e/BEST for a couple of hours. The last picket was a great success and we hope to have another good day. Bring banners, flags etc.
The 3rd National Day of Protest Against Benefit Cuts has been called for April 14th 2011.
Millions are set to be affected by savage cuts to housing, disability, sickness and welfare benefits. People with disabilities, illness, the unemployed, single parents, carers the low waged, part time students, volunteers, homeless people and college students are all likely to see a devastating drop in disposable income with many slipping even further below the poverty line.
The poorest and most vulnerable are being asked to pay for the mistakes and extravagances of the richest. Meanwhile poverty pimps like Atos Origin and A4e are set to rake in hundreds of millions on government contracts to bully and intimidate people from claiming the pittance handed out in benefit payments. Many disabled people have threatened suicide if these cuts are allowed to continue. Some have tragically already carried out that threat.
The first two days of protest against benefit cuts have seen demonstrations, meetings, unemployed discos, public pantomimes and occupations in cities across the UK. Atos Origin have been forced to close offices, protesters have gathered inside and outside workfare sharks A4e and demonstrations have taken place from Downing Street to local town centres such as Lydney and Crawley.
This time we have two months to organise for the biggest day yet. We call on all claimants, as groups or individuals, to organise and take action around the country on April 14th.
You can also send details to firstname.lastname@example.org
If you would like to see action locally, set up a group, event page or ask below. We will do out best to promote and co-ordinate all activity.
We are fighting for our homes, our livelihoods, our very survival. It’s time to show these public school parasites and their poverty pimp collaborators we mean business.
Actions/events are being discussed and organised in Edinburgh, London, Birmingham and Nottingham so far.
UPDATE: First to call, the fine folk of Leeds
Thursday, April 14 · 10:30am – 2:00pm
Meeting @ Leeds Train Station 10am before moving to picket ATOS from 10:30 for an hour then move onto A4e/BEST for a couple of hours. The last picket was a great success and we hope to have another good day. Bring banners, flags etc.
o Black Triangle Anti-Defamation Campaign
o Brighton Benefits Campaign
o Cardiff’s Unemployed Daytime Disco
o Carer Watch
o Carer Watch fb page
o Crippen – Disabled Cartoonist
o Diary of a Benefit Scrounger
o Disabled People Against Cuts
o Dundee Unemployed Workers
o Free London Listings
o Goldsmiths in Occupation
o Haringey Solidarity Group
o Ipswich Unemployed Action
o Kilburn Unemployed Workers Group
o Lancaster and Morecambe Against the Cuts
o London Coalition Against Poverty (LCAP)
o Mad Pride
o Norfolk Community Action Group
o Nottingham Claimants’ Union
o Nuneaton Against Benefit Cuts
o Oxford Save Our Services
o Tyneside Claimants Union
o Welfare Action Hackney
o Welfare Rights 4 u (UK)
o Work Programme & Flexible New Deal Scandal
o World Homeless Day