The (absence of) reasons in Redcar

You may well have seen or heard press stories on a First Tier tribunal bedroom tax appeal decision in Redcar and Cleveland. There has been a lot of excitable comment about it representing a ‘landmark appeal‘ and ‘hope for 440,000 disabled’. Even the tenant’s landlord, who supported her, described it as ‘fantastic news’ which “which should give hope to hundreds of thousands of disabled people right across the country”.

Courtesy of Joe Halewood, I have a copy of the decision notice and summary of reasons given by the FTT. A copy is here.

In view of the interest and hopes this decision has raised, it gives me no particular pleasure to say that the decision is very poor indeed.

Briefly, the tenant and her partner lived in a three bedroom property, assured tenants following the purchase of the property under a mortgage rescue scheme in August 2012. They had owned the property and it had been their home, with their two children, since 1988. But they were now the only occupants.

The tenant is disabled, suffering from a number of conditions and a stroke which meant that she required a wheelchair and stair lift. She sleeps in one bedroom alone, as her sleep is very unsettled and disruptive.

The Benefit Authority had assessed the property as a 3 bedroom property, as reported by the landlord, and the tenant’s need under the Regulations as one bed.

The tribunal found that there were 3 bedrooms. The size of the rooms was noted, all of or above 70 sq ft. The bedroom used for storing aids (bath board, commode, wheelchair) was found to be a bedroom, the belongings could be stored elsewhere.

On the second bedroom, the Tribunal stated:

The Local Authority have not taken into consideration her disabilities and her reasonable requirements, as a result [of] these, to sleep in a bedroom of her own.

The Tribunal reduced the bedroom tax deduction from 25% to 14% and concludes

that the property has 3 bedrooms and although the appellant and her husband are a couple, her particular circumstances (ie the extent and effect of her disabling medical conditions and her resulting needs due to those disabilities) mean that they reasonably require one bedroom each and should therefore be assessed for housing benefit on that basis.

And that is it. That is the extent of the reasoning. The Tribunal appears to have invented a ‘reasonable requirement’ exemption to the bedroom tax regulations out of thin air. There is no sign that an Art 14/Gorry argument was mounted, as in the Glasgow case, or that such issues played a part in the reasoning. Nor is there any reliance on the Equality Act s.149.

I can’t see how this decision could possibly stand on an appeal to the Upper Tribunal, if one is mounted. I also can’t see how it could provide a possible basis for other appeals to the FTT. While it is clearly a good result for the tenant (although possibly only temporarily), it is not a good decision in any other way.

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

7 Comments

  1. Two questions were posed in reply to the EHRC (interested party) in regards to the initial judicial review proceedings on the bedroom tax which appear to have been missed by the lawyers focusing on the European direct discrimination aspect as opposed to domestic law (DDA, EA), which have now been found wanting hence the recent successes and subsequent challenges. I repeat the questions here;

    First, it is not clear…..as to why questions were not drawn on the followIng domestic provision;

    Determination of a maximum rent (social sector)
    Regs 5 (7) HBR 2006
    B13 (4) Where it appears to the relevant authority that in the particular circumstances of any case the limited rent is greater than it is reasonable to meet by way of housing benefit, the maximum rent (social sector) shall be such lesser sum as appears to that authority to be an appropriate rent in that particular case.

    Second, My understanding from the judgement and the judge was that in the absence of any application under direct discrimination under ECHR, would it not have been helpful to make parallel submisions firstly under domestic provisions ie EA, DDA (in essence asking whether the gov’ment is under obligation to consider/ make reasonable adjustments to benefit changes on those adversely affected by the changes not least as already one successful challenge had been made by an adult disabled applicant needing extra room for his equipment or overnight carer, and whether/ to what extent this complies DDA duties and EA) and then on the European aspect pursue indirect discrimination argument, as set out under the Greece decision of 2000 ie do the changes/ extent amount to a form of indirect discrimination adversely affecting those with disability need compared to those w/o disability needs .

    It is puzzling and quite remarkable as to why the lawyers failed to follow the DDA, EA aspect, particularly as at the date of hearing they had an authority by way of a successful challenge to the bedroom tax by an adult disabled applicant- this failure amounts to nothing short of an own goal, more importantly a letdown to all those vulnerable tenants facing uncertainty and anguish.

    • Frednach

      I’m not sure what you are getting at. As far as I know, there was no representation for the appellants in this FTT. Are you mixing it up with MA – the judicial reviews – which did go ahead on Art 14/HRA only – with the FTT cases? And the High Court in MA did indeed find indirect discrimination, or at least Thlimmenos discrimination, but went on to find it was justified, under the lower test of justification for such discrimination.

      In any event, ‘reasonable adjustments’ under the Equality Act would not apply to a statutory provision like the HB regs. While the public sector equality duty, under s.149, would apply, it is very hard to see how this could take effect as an ‘exemption’ to statutory provisions. (Maybe not impossible, but hard).

      I don’t know what ‘authority’ you are referring to in your last paragraph. There was the Glasgow FTT decision, but that was on Art 14 grounds, not Equality Act, and as a FTT decision is not binding and not an authority in any way.

      I fear you’ve got in a bit of a jumble.

  2. It’s disturbing that the mortgage rescue scheme only dates back to 2012 when buying parties concerned must have been aware of the impending bedroom tax. It still had to go through the affirmative procedure process at that time but the legislation had been passed as part of the Welfare Reform Act. This is not the first case I’ve heard of where arrangements, including straightforward transfers into properties too big for the tenant, have been done just months before the legislation came into effect on April 1st. Surely social landlords have some responsibility to act within the Equality Act and not knowingly place disabled tenants in a worse position than before?

    • I understand that both parties, landlord and tenant, in this instance agreed to the mortgage rescue in full knowledge of the likely effect of the bedroom tax, and the landlord said the tenant would be supported. What this amounts to, I don’t know.

      In general, though, I agree that there should have been clarity on exactly what the position was going to be before entering into a mortgage rescue agreement.

  3. The Redcar decision notice refers to a “summary of reasons” and it does not contain a comment to the effect that it is intended to stand as a full statement of reasons, so it may be that a full statement (if requested by either of the parties to the case) would shed more light on precisely what powers the Tribunal considered it had to make a decision like that. I cannot see how s149 of the 2010 Act requires a local authority to ignore or override legislation in HB decision making. The only possibility I can see here is that the Tribunal has applied s3 of the Human Rights Act to achieve an interpretation to remedy a violation of the claimant’s A1P1 or Article 8 rights. A detailed statement (if requested) will reveal whether this is indeed the case. All this publicity might give the Judge a heads up to retrospectively think of some better reasons for the decision in the detailed statement!

    By contrast the Glasgow case is a detailed statement of reasons and it demonstrates how the Tribunal has reached the remedy of “reading in” words. I do worry that Judge Boyd might have gone a bit too far with her interpretation here. She relies very heavily on the Ghaidan case as authority for a strong presumption in favour of interpretation, but if you read the Court of Appeal decision in Ghaidan (which was upheld on appeal by the House of Lords) the Court had imbued the word “as” with the extended meaning “as if they were” (same sex couple living together “as” husband and wife before the civil partnerships came in). It’s quite a subtle piece of interpretation. I think the Glasgow bedroom tax approach is possibly straying into the realm of active legislation very similar to that rejected by the Court as impossible in the Francis maternity grant case.

    • Given the complete absence of any reference to Art 8, 14 or A1 P1 in the ‘summary of reasons’, I very much doubt that anything of the sort was involved.

      I share your concern over the extent of ‘reading in’ in the Glasgow case.

  4. I am not as negative on the Redcar case as the comments above and also not full of the hyperbole that has accompanied it in some quarters and lets be honest the ‘disability lobby’ have done all they can to hijack the bedroom tax challenge and let emotive argument come well ahead of judgment.

    Yet the Redcar case merely sees the judge assess the perceived ‘constant’ of ‘housing need’ in the scheme of things with the bedroom tax applied where bedrooms (however defined) being in excess of ‘housing need.’

    For all the highly prescriptive 48 page of the bedroom tax guidance it says precisely nothing about a disabled couple having a medical need to sleep apart, the issue in the Redcar case. That for me is a key issue.

    HB officers decide daily on what is or is not sheltered housing and so they have discretion and there is scope for subjectivity. If a HB officer can have discretion over this they why not over ‘housing need’ and especially with no guidance at all on the substantive issue?

    Remaining on that point I am aware of a council who have made the exact same decision as in the Redcar case and indeed ahead of it being heard but at review and the case has ended there with no need to go to appeal. This was also ahead of the Glasgow and Hereford cases too.

    So if as this case and every LA deciding what is sheltered accommodation or exempt accommodation (supported housing) then why is it so legally fraught that a tribunal adopts discretion to the concept of ‘housing need?’

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