Hardy, R v Sandwell Metropolitan Borough Council

A local authority's decision to take the care component of disability living allowance (DLA) into account when assessing discretionary housing payments (DHPs) was unlawful, the High Court has said

The claimants, Mr and Mrs Hardy, who are both disabled and both receive the care and mobility components of DLA, live in a three bedroom property. They have lived in their current home for around 20 years, but were caught by the ‘bedroom tax’ when their housing benefit was reduced as a result of their having a spare bedroom.

Following the introduction of the bedroom tax in April 2013, the local authority assessed them as needing only one bedroom and reduced their rent by 25%, leaving a shortfall of £23.32 a week.

Mr Hardy applied for DHPs to make up the shortfall and, in assessing Mr and Mrs Hardy's income, the Council exercised its policy of excluding the mobility component of DLA but taking into account the care component.

In October 2013, Mr Hardy issued a judicial review claim in which he challenged the Council's September 2013 decision to take into account DLA(c) on the following four grounds.

Now, in a 30 March 2015 judgment handed down at the High Court, Mr Justice Phillips ruled that the policy of taking into account the care component of DLA is unlawful and amounts to a breach of Section 29(6) of the Equality Act 2010 and Article 14 of the European Convention on Human Rights.

In his judgment, Mr Justice Phillips said the Council’s policy of always taking into account the DLA care component “constitutes a failure to exercise the Council’s discretion and fetters any future exercise of that discretion”.

He added:

“The Council’s approach is an example of indirect or Thlimmenos discrimination because it treats disabled applicants and their disability-related income in exactly the same way as it treats others and their non-disability related incomes, giving rise to unfavourable treatment to the disabled applicants.”

Fiona McGhie, a specialist public lawyer at Irwin Mitchell, DRUK’s legal partners, who acted for the Hardys, said the decision could go on to have wider consequences for many other local authorities across England and Wales:

"The council’s policy has been struck down as being unlawful. Where the bedroom tax leaves a black hole in a disabled person’s household budget – the council cannot demand that they fill that black hole with DLA.

The decision is an important one which provides important clarity on whether councils should include disability related benefits as income when considering applications for DHP to help with housing costs.

This ruling has ensured that the voices of our clients have been heard and I believe the decision will have far-reaching consequences for a number of local authorities adopting similar policies. It is vital that the welfare of vulnerable people always comes first and every council should ensure this is a core focus."

Sandwell Council and the London borough of Kingston upon Thames have both confirmed that they were reviewing their DHP caseloads in light of the ruling. The move could be followed by hundreds of local authorities across the UK where councils count DLA when calculating DHP awards.

In addition, the DWP has confirmed to Disability Rights UK that it is reviewing its DHP Guidance to Local Authorities to take into account the High Court’s ruling.

The High Court’s judgment in Hardy, R v Sandwell Metropolitan Borough Council [2015] is available at www.bailii.org