Bedroom tax first JR?

Just a quick post to note that a Judicial Review of the bedroom tax regulations was apparently issued on Friday 1 March 2013. From this report, it appears that the grounds are along the lines of Burnip, as I suggested here, in that the basis is discrimination against children not able to share a bedroom through disability, with the addition of arguing that some are unable to share a bedroom 'because they are at risk of violence from a sibling, or because of the trauma they have experienced as a result of abuse and domestic violence'.

The cases are apparently being run by Rebekkah Carrier of Hopkin Murray Berskine. Any more information gratefully received and of course we will be watching what happens very closely.

[Update. I have heard more. There are 10 Judicial review claims, all of which have an urgent directions hearing on 5 March 2013 (today for those reading the email). 5 of the claims are the HMB children cases mentioned above. There are 3 cases run by Public Law Solicitors in Birmingham which involve disabled adults, and two cases run by Leigh Day, also involving disabled adults. Some of the cases fall under Burnip. Others don't.

The Claimants are seeking an urgent rolled up permission and substantive hearing.

Martin Westgate QC, Kate Markus, Caoilfhionn Gallagher and Ben Chataway are counsel for the Claimants.

The results of this could well go beyond the bedroom tax to LHA regs on bedroom need as well.]

[update 5 March. The Guardian has a piece with details of some of the claimants here. Also I have been told that the children's cases are on grounds of Art 8 and UNCRC as well as Art 14/Equality/Burnip grounds.]

[Update 2: 5 March - the Admin Court has given the DWP 14 days to file grounds of resistance and will then take a view on the continuation of the claims. If they do go to hearing, this will be after 1 April 2013, so the introduction of the regs will go ahead unless the DWP decides otherwise. Mitting J reported as not being initially impressed with the 'there is DHP for that' argument from the DWP, saying "It is deeply unsatisfactory to set out a set of very clear rules and then say in individual cases you may have to depart from them." ]

Posted in assured-tenancy, Benefits, FLW article, Housing law - All, secure-tenancy and tagged .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

31 Comments

  1. I have so far heard nothing from my local council about this directly and wish to seek exemption on grounds of carer needing to sleep over about 3 times a week.

    Does anyone know what the procedure is – not to seek the discretionary housing fund but for exemption?

    • Dyanne, you may be eligible to have a bedroom included for your overnight carer. You are not ‘exempt’ rather you can be allowed a bedroom for an overnight carer DWP’s guidance to council’s is at
      http://www.dwp.gov.uk/docs/a3-2011.pdf

      This guidance applies to HB claims for private sector tenants but is also now applicable to ‘bedroom tax’ provisions for social sector tenants.

      • Thank you very much for this. However, I do not understand what is meant by ‘you are not exempt’, rather you will be allowed a bedroom for a carer…’ Does this mean that I will still have to pay the 14% out of other benefit money even if they let me stay here? Or does it mean I will have to apply for DH fund? These rules also date from 2011 – is it conceivable that they may be altered still to my detriment?

        • Dyanne

          Jim is confusing things a little. If a bedroom is needed for a regular overnight carer for the tenant or partner, that bedroom is not considered as ‘spare’ for the purposes of the bedroom tax. The DWP guidance is here: http://www.dwp.gov.uk/docs/a4-2012.pdf

          So, if there is one ‘extra’ bedroom and that is used regularly by an overnight carer, that room should not be counted.

    • Do you receive middle or high rate DLA care and is someone, non-resident, in receipt of carer’s allowance for you. Even a family member will do as long as they don’t live with you and care for you overnight on a regular basis. I have heard of cases where this is sufficient. Makes the problem of those who are living with someone with high care needs who nevertheless will be liable for the bedroom tax even more absurd. If they move out, claim HB from a different address they’ll be ok apparently; costing the taxpayer more in HB!! I had thought the proof for the overnight carer was going to be more rigorous but it seems not: receipt of DLA and carers is sufficient. Hope this helps Diane.

      • Hi Sue,
        Thanks for your info.
        yes, have high rate care, and friend regularly stays. No carer’s allowance or payment though.
        I have had no information from council about this, no letter, nothing, and my housing association do not seem updated.

        • Hi Dyane, you should be ok then. You’ll need to prove the carer is coming in and show your DLA award (although I have heard of cases where even that is not necessary). I understand your frustration with those who are supposed to be informing us of the new rules. I think you’ll have to take the initiative and contact your council directly. Good luck

          • Thanks Sue.
            I phoned my housing association this afternoon and they are coming to see me about this soon. So hopefully it will all be straightforward.
            Do you know what kind fo evidence they need to demonstrate my friend stays? Grubby bed linen?! Photos with times recorded? CCTV? (!).

          • Thanks Sue.
            I phoned my housing association this afternoon and they are coming to see me about this soon. So hopefully it will all be straightforward.
            Do you know what kind fo evidence they need to demonstrate my friend stays? Grubby bed linen?! Photos with times recorded? CCTV? (!).

            • It might be as well to have them claim carer’s allowance or will you lose severe disability premium if you do that? It might be worth it in the long run, or at least doing the financial calculations to see which is the lesser of 2 evils; losing the premium or paying the bedroom tax. They will need proof of some kind, although it seems to vary from different local authorities how rigid they are. You might be ok with the DLA and a supporting letter from your GP saying you do need overnight care. It’s hard to know how they will enforce any of this when it’s a friend who cares for you; as you say, how on earth can you prove it without it being an invasion of your privacy. It’s madness.

  2. 10 Judicial reviews hints that a policy may have been a bad idea.

    I can understand the intention behind the policy. It is just going to make such a mess though.

  3. Update from HMB.

    There was a hearing in the HIgh Court yesterday.
    The Court recognised the importance of these cases which were described as of constitutional significance. Ian Duncan Smith has been given 14 days to explain why the challenge should not go ahead and directed that the organizations representing local authority and housing association landlords should be served with the papers relating to the cases because of the huge impact the “bedroom tax” is likely to have on landlords. We have been given a timetable for trial that reflects the urgency of these cases although we remain concerned about what is going to happen across the country on 1st April when local authorities are faced with thousands of tenants who cannot pay their rent. There is no sign at all in the government’s response to these claims of any u-turn to restore benefit in cases involving disabled children.
    Hopkin Murray Beskine.

      • Hi NL, can anybody clarify the actual numbers; the Guardian said it’s 22 cases. Elsewhere its described as just 10 children. Others have it as 5 children, 3 adults from the Birmingham firm, and the 2 adults I know about from Leigh Day. Clarification would be much appreciated!!

          • Thank you. Could you explain how these are distributed and with which law firms (apart from the 2 at leigh Day); a journalist at Inside Housing has asked and I’m not sure of the answer.

            • 5 children cases with Hopkin Murray Berskine, 3 adult cases with Public Law Solicitors in Birmingham and the 2 adult Leigh Day cases.

  4. There was a post on FB the other day about HA 1985 space standards [which may have been amended] in that any room less that 50 sq ft is not permitted as a bedroom and between 50 and 70 sq ft is only permitted for half a person eg child under 10 – the intention of the post was to say that such rooms may not eligible for bedroom tax and that one authority has already agreed to this. Any comments?

  5. Pingback: The Law on Bedroom TaxNO2BEDROOM TAX | NO2BEDROOM TAX

  6. Just to note that at least the HMB (Children) and Leigh Day (Adult) Judicial review claims have been granted permission today, 27 March. Full hearing should be in early May.

    I haven’t been able to establish if the two Public Law Solicitors claims (Adults) have been granted permission, but I would be surprised if they hadn’t, given the similarity of grounds.

    • Yes, all cases have gone through, fantastic news!! Not good at links but there’s stuff on Leigh Day site and Spartacus site too. Let’s hope it’s the beginning of the end for the bedroom tax.

  7. Bristol City Council has decided that anything under 50 square feet is not a bedroom. The detail and letter which says this is here: http://speye.wordpress.com/2013/05/06/council-defines-when-a-bedroom-is-a-boxroom/

    What is interesting in this is social landlords and their lobbies (CIH / NHF etc) have said the 1985 Act sections 325/6 don’t apply at all with the bedroom tax decision citing statutory interpretation arguments.

    Yet Bristol has seemingly adopted one element, the under 50 square feet issue, but not the 50 – 70.1 square feet issue which sees that size of room being in effect half a bedroom.

    Firstly, If it is a case of whether section 326 of 1985 Act applies or not as CIH/ NHF maintain and BCC is using this then surely all aspects of minimum bedroom size must apply and not just selectively.

    Secondly, as BCC did NOT ask for room sizes as part of making the decision but are now stating after the decision was taken that room size is a factor, which they are; then surely the original decisions taken are unreliable?

  8. I have recently challenged the reduction of my housing benefit on grounds that my extra room is under 50 sq ft and requested they send me a copy of the housing benefit regulation as to what defines a bedroom ? and they did come to my home and measure my spare room they also forwarded me a copy of HB U6/2013 you can download this urgent bulletin I have read it over and over I’m unsure if there saying in this that if you have a room to small for bed you could put it in living room and you still have to pay subsidy of extra room or the registered housing authority should consider re classiffy as to reflect the size of property it has baffled me .The housing assoc I’m with don’t /won’t reassess a size of bedroom as far as there concerned it is a bedroom even if you cannot fit bed in it !

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