Slap on the wrist by the UN High Commissioner: Bedroom tax, disability, the social right to housing, the ECHR right to family life, judicial review

Now that the press release from the office of the UN High Commissioner on Human Rights has been released, it is perhaps a good time to fulfil my promise and develop my thoughts a bit more on the bedroom tax. For those of you interested in a wee bit more highbrow legal stuff, you can download my presentation at the SLS Conference here. However, this post will be like Emily Dickinson wrote, ‘tell all the truth but tell it slant’.

So I’ll start differently. The bedroom tax is an austerity measure, just like any other austerity measure adopted by countries in the Eurozone. The common feature of these measures is that they aim to reduce public spending by introducing cuts to social benefits. By introducing cuts to social benefits, the human rights which are connected to (and protected by) these benefits are infringed. When human rights are infringed, judicial (or constitutional, in other countries) review aims to examine how bad the infringement is, compared to the aim that the austerity measure serves. This is what proportionality is all about.

Judicial review in the UK is presented as this devilish, almost obscene judicial power, which does the unthinkable: it places government policy under scrutiny. However, judicial review under the HRA has to do precisely that: place government policy under scrutiny and examine whether the infringement to the human right in question is proportionate to the aim to be achieved by the government policy.

Robert Alexy has formulated two laws about how proportionality reasoning (balancing) works.

The first law of balancing states that the greater the degree of detriment to a right, the greater must be the importance of satisfying the public interest (or a competing right).

The second law of balancing states that the greater the degree of interference with a right, the greater must be the certainty of its underlying premises.

Let’s apply this reasoning to the bedroom tax. The estimated savings from the bedroom tax amount to roughly £500m for 2013-14, according to this. However, it is uncertain whether these savings will actually be achieved, according to press coverage, such as this. Given the uncertainty surrounding the underlying premises of the bedroom tax (i.e. the savings of £500m), grave interferences with human rights cannot be justified. It is simple as that.

Now, I have to turn to the issue of the grave interference with the human right. If the bedroom tax is simply seen as an interference with the human right to property (under Art. 1 Prot. 1), then the reduction in the housing benefit may not be easily regarded as grave. It will depend on the actual circumstances of each case.

What the Bedroom Tax judgment did not do however (available here) was to consider the potential risk of infringement to other human rights, such as the right to private and family life. The link between the social right to housing and the right to private and family life has been highlighted in the Yordanova v Bulgaria case of the ECtHR (see an excellent comment here). Although Yordanova is about forced evictions of Roma, some parts of the judicial reasoning are highly relevant to persons with disability affected by the bedroom tax. The threat of homelessness and the background of social deprivation constitute a grave interference with the right to private and family life.

So, the bottom line is: Why do Parliament and judiciary have to wait for an international slap on the wrist to acknowledge that current policy is simply not designed well? Why do we have to wait for the UN High Commissioner to give us a nudge in the right direction? And more importantly, will we actually listen? 

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