An elderly disabled couple lost 25% of their housing benefit because of the 'bedroom tax'

A Council's decision to reduce the housing benefit to an elderly disabled couple for living in a council house they considered ‘under occupied' has been deemed unlawful at the High Court.

Mr Hardy, a retired bus driver, lives with his wife in their three bedroom adapted council house in Oldbury which they have occupied for 28 years.

In 2014 their housing benefit was automatically reduced by 25% by Sandwell Metropolitan Borough Council following the implementation of the ‘Bedroom Tax’, which became law in April 2014.

This reduction in benefit saw Mr and Mrs Hardy facing a shortfall of £23.32 per week.

Mr Hardy applied to the Council for a discretionary house payment (DHP) to make up the shortfall.

The Council calculated that Mr and Mrs Hardy’s income, excluding the mobility component of their disability living allowance (“DLA(m)”), but including their disability living allowance DLA(c), exceeded their expenses by £16.63 per week.

Assuming that that surplus income could be applied towards their rent, the Council awarded DHPs at the rate of £6.69 per week, a decision which it confirmed on 13 September 2013 after a second reconsideration.

This left the Hardys still with a shortfall of £16.63 per week.

Law firm Leigh Day, representing the charity Z2K intervened in Mr Hardy’s challenge and argued the Council’s policy of taking DLA into account in assessing the rate of DHPs was unlawful as it is contrary to the Department for Work and Pensions’ Discretionary Housing Payments Guidance Manual Including Local Authority Good Practice Guide issued in April 2013.

In his judgment handed down on 30 March 2015, Mr Justice Phillips sitting in the High Court quashed the Council’s decision to include Disability Living Allowance Care Component as income in calculating a DHP, which it agreed, amounted to discrimination contrary to Article 14 of the ECHR.

Ugo Hayter from the human rights team at Leigh Day, said:

“This is a very good result for Mr and Mrs Hardy and a very helpful judgment for DHP recipients generally.

“The care component of Disability Living Allowance is money given to recipients specifically to meet the additional costs they incur as a result of their disability.

“However, according to DWP survey evidence, some 75% of Councils take Disability Living Allowance into account as income when deciding on an award of DHP. The implications are clearly of significance for other councils, and will potentially impact many disabled people faced with the bedroom tax.”

Joanna Kennedy, Chief Executive, Z2K:

"We are delighted that the High Court has found clearly and decisively that the practice of counting DLA as income for the purposes of calculating DHP awards is both unlawful and discriminatory. In our opinion the implications of this judgment are not restricted to DHP policy alone but also make counting DLA as income for other discretionary benefits, such as Local Welfare Assistance Payments, discriminatory.

"We urge all authorities that currently count DLA as income in the calculation of any discretionary payment or benefit to cease this practice”.