Sunday, 28 May 2017

Manifestly without reason

From: Inside Edge 2

On a day when it was badly needed the judges of the Supreme Court obliged with some good news.

Yes, it was mixed with bad news in the judgement on the bedroom tax, as two claimants won their case and others were refused, but it was still a welcome vindication of the case put forward by the Carmichaels, the Rutherfords and their lawyers. In the words of the judgement, the decisions on their housing benefit were “manifestly without reason”.

And – just maybe – there may be more good news to follow from the new ministerial team at the Department for Communities and Local Government (DCLG). In an appearance before the Communities and Local Government Committee yesterday, they repeatedly stonewalled questions about the implementation of the extension of the Right to Buy, the sale of higher value council homes, Pay to Stay and Starter Homes.

There are no guarantees but the penny has dropped at the DCLG that policies that were written on the back of a fag packet need lots more work. Six months after the Housing and Planning Act received Royal Assent, we are still waiting for the key details. Could it be that the new ministers have realised that some of what their predecessors did was manifestly without reason too?

So first the bedroom tax. Today’s judgement (available in full or in summary here) draws a distinction between tenants who need a spare bedroom for medical reasons and those who have powerful but non-medical reasons for needing one.

I’ll leave the legal detail to the experts but the test was not just whether the housing benefit regulations (Reg B13) discriminated against disabled people but also whether this discrimination was “manifestly without reasonable foundation”. The key part of the summary of the judgement on the Carmichael and Rutherford cases is this:

“However, some people with disabilities have a transparent medical need for an additional bedroom. Reg B13 recognises this and entitles claimants to an additional bedroom in the case of children (but not adults) who cannot share a bedroom because of their disabilities or adults (but not children) in need of an overnight carer. Mrs Carmichael is an adult who cannot share a room with her husband due to her disabilities. The Rutherfords require a regular overnight carer for their grandson with severe disabilities. There appears to be no reason to distinguish between adult partners who cannot share a bedroom because of disability and children who cannot do so because of disability; or between adults and children in need of an overnight carer. The decisions in relation to Mrs Carmichael and the Rutherfords were therefore manifestly without reason.”

Summed up like that you can see just how manifestly reasonable it is to treat disabled adults and disabled children in the same way when they need an additional bedroom for medical reasons or an overnight carer and not force them to go through the local lottery of Discretionary Housing Payments (DHPs). But how did it take three-and-a-half years to come to this conclusion?

The other cases involved disability and gender discrimination (against a woman living in a Sanctuary Scheme). The judges ruled that “while there may be good reasons for them to receive state benefits to cover the full rent, it is not unreasonable for their claims to be considered on an individual basis under the DHP scheme”. In the case of the Sanctuary Scheme, two judges dissented but five ruled in favour of the Department for Work and Pensions.

So good news and bad news on the bedroom tax but in the context of events elsewhere today and of the other cuts facing disabled people, it’s still something to celebrate.

Things are not remotely as clear with the Housing and Planning Act but perhaps that I’m even able to write that six months after it became law is good news of a sort. It remains to be seen how much will be changed or watered down but the new ministerial team at the DCLG clearly do not share the gung-ho assumptions of their predecessors and the government as a whole has bigger things on its mind. Watch the first five minutes or so of yesterday’s session at the Communities and Local Government Committee to see what I mean.

On the extension of the Right to Buy to housing association tenants, committee chair Clive Betts asked when we are likely to see the results of the pilot projects and when the policy is likely to be rolled out further.

Communities secretary Sajid Javid said the pilots are progressing well but “there are still a number of points of detail that we need to agree within government”. Pressed again, he added: “I can’t tell you exactly when we will publish the results and take the policy further but it is our intention to have the policy fully in place by the end of the parliament.”

Next up, Mr Betts asked about the higher-value sales that are meant to pay for those Right to Buy discounts. Would councils be expected to find any of the money in next year’s budgets (which they are setting now)? Presumably not if the Right to Buy may not come in until 2020.

Housing minister Gavin Barwell said:

“We haven’t come to a decision on timing yet but we have a statutory duty to consult councils before making any determination for the payment that would be required and the regulations would require an affirmatory procedure [a vote] in the house. So there is clearly quite a significant process we would have to go through before we can start making charges. We haven’t made a decision yet on timing.”

He went on:

“We want to make sure it’s a smooth process. We’re very well aware of the fact that the legislation that went through in the Housing and Planning Act was quite controversial. I think when we roll out the policy we want to make sure that it operates smoothly and that requires giving plenty of people the opportunity to comment on the regulations and giving councils plenty of time to implement them.”

On Starter Homes, Mr Betts asked about the percentage of Starter Homes that would be required on new developments. When would that happen? Sajd Javid said he couldn’t give “a definitive timetable”:

“The Starter Homes policy is very much in place but we are still looking at the best way to implement that and also what’s the best way to get the highest return from having a requirement on developers for Starter Homes.”

On Pay to Stay, Mr Javid said:

“We are in active discussions at the moment internally in government on that. Again we are very much committed to that, I think it’s a very important point of fairness. We’ve set the broad detail of that about how that would work but there are still some factors to work out before we can implement it.”

Mr Betts said councils would be left “incredibly frustrated” about the lack of details and uncertainty created by government. In December last year, former housing minister Brandon Lewis promised the committee more detail about how the funding for the Right to Buy and replacement homes would work in the first quarter of 2016/17. Several months later there was still nothing. This exchange was telling:

Mr Javid: “We are still developing the details of this policy and I don’t think it’s possible to provide more financial detail on the impact until we have finalised that.”

Mr Betts: “Isn’t it normally a good idea to work out the financial impact before you determine the policy?”

Mr Javid: “Well I think you are asking for more detail. Clearly there are headline numbers the government has already shared and published but in terms of the… impact on councils of high-value homes as we implement the policy we don’t have that detail at this point.”

And that was pretty much the story of yesterday’s hearing. If the bedroom tax was manifestly without reason, the most controversial aspects of the Housing and Planning Act remain manifestly without details. 

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