Bedroom tax - children who require overnight care - R(Rutherford and Todd) v SSWP UKSC 0029/2016

Last updated: November 3, 2016

Update 09/11/2016: the Supreme Court has dismissed the DWP's appeal against the decision of the Court of Appeal that the bedroom tax unlawfully discriminates against families in the position of the Rutherfords. The judgment is available from the Supreme Court website. For more information, see also our press release CPAG wins Supreme Court bedroom tax breakthrough.

Update 03/11/2016: the Supreme Court will be handing down its judgment in the case on 09/11/2016 - the listing is available on the Supreme Court website.

Update 07/04/2016: This case was heard in the Supreme Court on 29 February to 2 March 2016.  We are currently waiting for the judgment.

Update 23/02/2016: Last month the Court of Appeal held that the bedroom tax unlawfully discriminates against children with disabilities and women. Following this victory, the DWP appealed to the Supreme Court and the Rutherfords' case will be heard alongside other bedroom tax cases from 29 February to 2 March. You can watch the hearing live here. Today we published an article about the case on our blog, read here

UPDATE 27/01/2016: Today, the Court of Appeal has ruled that the so-called ‘bedroom tax’ is unlawful because of its impact on vulnerable individuals. See our press release for more information.

UPDATE 20/08/2015: The Court of Appeal granted permission and ordered that the case should be heard quickly so that it can be joined with MA in the Supreme Court, due to be heard in March 2016.  The hearing took place on 4 and 5 November 2015 and the judgement will be handed down on 27 Jan 2016.

CPAG is acting for Paul and Susan Rutherford and their grandson Warren in a judicial review challenge to the bedroom tax. The case concerns the housing benefit restrictions for social tenants introduced in April 2013, which we argue discriminate unlawfully against disabled children who need overnight care.

Warren, who is aged 15, suffers from Potokoi-Shaffer Syndrome, a very rare genetic disorder which causes him grave cognitive and physical disabilities. He requires 24 hour care by at least two people at all times. His grandparents, who both suffer from disabilities themselves, struggle to look after him alone and need the help of two paid carers who can stay overnight at least twice a week. The family live in a 3-bedroom bungalow that has been specially adapted to meet Warren’s needs. Paul and Susan share one room, Warren sleeps in another and the third room is needed for the carers to stay overnight and to store Warren’s equipment. Without the help of overnight carer workers Warren would have to be put into residential care, at substantial extra cost to his local authority.

As a result of the restrictions on the size criteria in social tenants, introduced in April 2013, the family have been deemed to be “under-occupying” and their housing benefit has been reduced. The regulations currently allow for an additional bedroom if the claimant or their partner “require overnight care”, following the decision of the Court of Appeal in Burnip v Secretary of State for Work and Pensions. However, there is no provision for children who need an overnight carer. We are arguing that this discriminates against disabled children contrary to Article 14 of the European Convention on Human Rights, and that there is no rational justification for the exclusion of children from the exemption for overnight carers.

The judicial review challenge has been dismissed by the High Court, relying on the fact that the family have been granted a discretionary housing payment from Pembrokeshire Council from Pembrokeshire Council to cover the shortfall in rent for a year. The family are planning to fight on and seek an appeal.

CPAG's solicitor Michael Spencer said: "Paul and Sue Rutherford work round the clock to care for their severely disabled grandson Warren. Without carers who can stay overnight they just wouldn't be able to cope and Warren would have to go into care, at substantial cost to the taxpayer. The court has at least indicated that the local council should help pay the shortfall in Warren's rent, but ultimately families with severely disabled children should be entitled to the same exemption as disabled adults and not have to rely on discretionary payments."

The case can be distinguished from the 10 judicial review claims dismissed earlier this year (MA v Others [2013] EWHC 2213 (QB)) and now on appeal to the Court of Appeal, as none of the claimants in that case were disabled children who need an overnight carer.

Judicial review proceedings were issued in the High Court on 24 September 2013. Counsel is Tom Royston of Garden Court North Chambers.  The hearing took place on 14 May 2014 and judgement was passed down on 30 May 2014.

The family's situation has been reported in The Guardian, on Channel 4 and in the Western Telegraph

Paul Rutherford has written this open letter to members of parliament.

For more information contact us.