It’s not OK for the government to discriminate against disabled children but it is OK for them to discriminate against disabled adults


You might remember the infamous “workfare” ruling some time ago that crucially didn’t judge whether the policy was slavery, but whether the policy widely seen as slavery had been enacted fairly.

Well today, we have a ruling not on whether the “Bedroom Tax” discriminates against disabled people – the judge clearly said that it did discriminate against disabled children – but whether the discrimination was “justifiable” and whether the discrimination was mitigated for in some way.

By arguing that Discretionary Housing Payments had been put in place up to the value of £25 million for this purpose, the government were found today by the judge to have put measures in practise to mitigate the effect of the policy on sick and disabled people

It was argued that mitigation was not adequate. DHPs are only a temporary measure and are not nearly enough to cover the needs of all people with disabilities who will be affected by the policy. Astonishingly for lay people like me, the judge said it was not his place to rule on that.

So I could continue with this article in the same vein. I could say that the government acted within the letter of the law, we are disappointed, but we shall fight on, blah, blah. I could explain the get-out clauses and minutae that split hairs and mean twitter is merrily arguing away on a pinhead as I type.

I could quote Anne McGuire, shadow disabilities minister, who has reacted with astonishment:

“I cannot understand why disabled adults with the same needs as children don’t have the same protection. What happens when a child reaches 16?  The decision defies logic by any definition! The transition from disabled child to adult has been made even more difficult.”

There was a time I would have been encouraged by this response. But the opposition are by their very nature “in opposition”. Votes in the House are not voted for on merit, they are whipped along party lines, so there is no ability to challenge from the opposition benches

Ultimately, whether we might think it should be or not, it seems it is not the place of a judge to rule on policy either, however unfair that policy might be, unless it is “Manifestly without reasonable foundation”. In layman’s terms, that means, apparently, that courts almost never interfere with the policies of a government at all. Politicians can skirt as dangerously close to “Manifestly without reasonable foundation” as they please, but otherwise, there is no recourse through the judiciary; none in law.

No, that was the job of the Lords. They are there to scrutinise policy and make sure good, safe laws are passed. It is the Lords who spend months, poring over government legislation in great detail and who demanded 11 amendments to policies within the Welfare Reform Act alone. They are still whipped to vote as they are told, but there are crossbenchers to balance out the partisan advantage.

But our government – neither elected nor with mandate – overturned every last amendment using an archaic 16th century law called “Financial Privilege”. Oh, there was outrage at the time. Former Tory Chancellors in the Lords denounced the move, committees here and there were up in arms, but the “law” won the day well and truly in that particular case. Selective isn’t it?

So away from the sound of the Westminster bubble almost popping with minutae and clauses, this is the gist of it: It’s now been ruled that it’s not OK for the government to discriminate against disabled children but it is OK for them to discriminate against disabled adults. It is enough that there are DHPs but irrelevant if they are adequate or not.

In a huge coincidence however, on this very day the government announced a further £35 million in DHPs. Nothing, of course, to do with the ruling, simply out of the goodness of their hearts. So now they are doing more to mitigate the legally accepted discrimination!

So that’s OK then.

DHPs are paid at the discretion of the local authorities. They decide how much they will pay and for how long. Once the money has gone, it has gone, they simply defer the time until someone will have to pay the “Spare Room Subsidy” or Bedroom Tax. The law will still be a bad law.

But none of that matters, because effectively, as a laywoman, I’ve learnt that governments, right here in the UK can introduce policies and laws with absolutely no checks or balances at all. Once a minister sets out on a policy direction, if he is determined to use every tool at his disposal to discriminate against a vulnerable group, he can. The Opposition can’t stop him, the Lords can’t stop him and the courts can’t stop him either. Not on policy detail.

Rule Britannia!

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