Bedroom tax decisions update

There are two new First Tier Tribunal bedroom tax appeal decisions on the FTT decisions page, at the bottom. One from Liverpool and one from Edinburgh. Both are Article 14 discrimination based, with disabilities meaning a bedroom could not be shared, one adult partners and the other a non-dependant requiring overnight care 2 mights a week.

There is also an Upper Tribunal decision, LA v Bury Metropolitan Borough Council (HB) [2013] UKUT 546 (AAC). I presume this is an LHA decision, though not stated, as the timescales are completely wrong for a bedroom tax case.

This is an appeal on fundamentally Gorry grounds, disabled children unable to share a bedroom. The appeal was post Gorry, but initially before the DWP withdrew the appeal of the Court of Appeal decision. The judgment was made shortly before the new regulations on severely disabled children came into force.

The main difference with Gorry is that the child in this case suffered from severe mental disabilities, ADHD and autistic spectrum disorder. The FTT had considered itself bound by the regulations, but the UT was perfectly prepared to apply Gorry, seeing no “distinction to be drawn between the severely physically disabled and the severely mentally disabled in applying Article 14”. The Council did not dispute the facts, or the actual need for an ‘additional’ bedroom by reason of the disability.

Having decided in fairly short order that there was unjustified discrimination under Article 14, the issue was one of remedy. While R(MA & Ors) v SS DWP had found that “Meantime, local authorities retain their discretion as to the administration of DHPs. It is plainly open to them to follow the Secretary of State’s Circular, but compliance with Burnip/Gorry is not their legal responsibility”, the UT found that this was not the case. The UT decided to follow the model the actual order made by the Court of Appeal in Burnip & Gorry, namely that (at 3 of the Order):

The decision in each case is remitted to the First Respondent in each case [i.e. the relevant council] to be remade in accordance with the Court of Appeal’s judgment. Each Appellant is entitled to have their case reassessed by the First Respondent in each case, and to receive from the First Respondent payment of such further sum (in addition to any discretionary housing payment or other relevant payment already made) as is necessary to comply with this judgment and Article 14 for the period to which the appeal relates.

What the UT found was that it could not be

compatible with the duties of the council under section 6 of the Human Rights Act 1998. That section makes it unlawful for the council to act in a way that is incompatible with the claimant’s and her son’s, human rights. I indicated that it was my inclination to find that it was the duty of the council to act lawfully and in order for it to act lawfully it had to provide housing benefit, if necessary by way of discretionary grant, where not to do so would be contrary to section 6.

Submissions by the Council and by the Secretary of State did not sway that view, and so the order made by the UT was

I am able to substitute my own decision for that of the council in the present case and I do so by remaking the council’s decision so as to determine that the claimant is entitled to be paid a sufficient amount in addition to anything payable under the Housing Benefit Regulations that will result in her and her family not being discriminated against contrary to Article 14. It is for the council to determine whether there are any further sums due to the claimant for it to comply with Article 14, and if so, to determine how much and to pay them. It has no discretion in this respect. Any dispute as to the amounts due will carry a further right of appeal.

In view of MA, this decision on remedy is particularly interesting, and, I think surely right.

The UT decision is now academic for new claims, given the new regulations introduced after the DWP was spanked in R(MA), though there may be a tension between the provisions in the regs and the specific finding on disability here. But it should have effect for existing claims where there was an appeal, at least for the period up to the new regs coming into force. And it is a matter for councils, not just the DWP.

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 .

14 Comments

  1. The only issue I have with this is that s.6(1) needs to be read with s.6(2)(b), i.e. .a public authority can’t do anything which is contrary to a provision made under primary legislation,

    If the regs say one thing then the council must follow them irrespective of whether to do otherwise is a breach of HRA. It was the old Kay/Doherty argument and why the real issue in Pinnock was about how you could read down the demoted tenancy provisions.

    Of course the authority can always rely on the DHPs, but I don’t see how it can just ignore the regulations.

    • I don’t think the UT is saying ignore the Regs. But it is saying that payment sufficient to avoid the discrimination must be made by the Council. Could be DHP, of course. And it appears that this was also what the Court of Appeal actually ordered in Burnip/Gorry.

      This issue of remedy is, of course, a problem with quite a few of the FTT decisions.

    • I think the remedy in the Bury case has to be by way of a payment of HB because a UT judge has no jurisdiction to decide anything else

    • In the context of an HB appeal, para 17 of the decision cannot be anything other than a substituted HB awarding decision, surely? If he is saying that the further sums payable do not have the characteristic of being HB he is overstepping his jurisdiction. The UT Judge basically has two options when unpholding an appeal: remit for a fresh hearing or substitute the decision that the FtT should have made. Here he has opted for the latter, as the opening of the second sentence in para 17 makes clear: “I am able to substitute my own decision for that of the council in the present case and I do so by remaking the council’s decision so as to determine that the claimant is entitled to be paid a sufficient amount”. The fact that he concludes by saying any dispute about the amounts paid will carry a further right of appeal also points to these sums being HB. He must be referring to a right of appeal to the FtT which lies only from an HB decision.

      Not saying I think he is right, but I do think he is talking about HB.

    • I do so by remaking the council’s decision so as to determine that the claimant is entitled to be paid a sufficient amount in addition to anything payable under the Housing Benefit Regulations that will result in her and her family not being discriminated against contrary to Article 14. [My emphasis]

  2. It seems that following incompatible Regulations made under compatible primary legislation is no defence under s6. If the authority applies the Regulations it is acting unlawfully: as long as compatible regulations [b]could[/b] be made under the primary legislation, the authority is required to act as if they have been. That seems to be Judge Mark’s position. As this is the first UT case that actually gets to grips with the question of remedy and eligible rent I suppose that must now be how the law stands. But it sounds like anarchy to me. Hey, claimant-friendly HB officers: don’t like the Regs? Never mind – just imagine some different ones!

  3. Sorry, just to be clearer: it seems that Judge Mark must have read these words in s6(2)(b):

    “provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible”

    as [provisions of, or made under] [primary legislation which cannot be read or given effect in a way which is compatible]

    and not as:

    “provisions … which cannot be read or given effect in a way which is compatible”

    • Peter, see my reply to S above. I don’t think the UT is saying ‘ignore the regs’. It emphasises payment “in addition to anything payable under the Housing Benefit Regulations”.

  4. An excellent decision, until you reach the issue of remedy.

    My issue with this ruling is that how the payment is to be made, and under what lawful authority, is somewhat unclear.

    One interpretation: Judge Mark is saying it should be met by DHP or other moneys held by the council.

    The problem with this, as Peter points out, is that the Judge has no jurisdiction over such payments. Indeed, he cannot be remaking the council’s decision not to award sufficient DHP, as the council decided to pay sufficient DHP. The only decision he can be remaking is that of the housing benefit supersession.

    Then there’s your issue, Giles: “in addition to anything payable under the Housing Benefit Regulations”.

    To me, Judge Mark seems to be saying the Regulations allow an HB award of X amount, and that he is deciding to award additional HB (Y) on top of that amount. X + Y. Indeed, Judge mark seems to believe the council can award this additional HB as a discretionary measure: ‘I indicated that it was my inclination to find that it was the duty of the council to act lawfully and in order for it to act lawfully it had to provide housing benefit, if necessary by way of discretionary grant, where not to do so would be contrary to section 6.’ Note, he says to award housing benefit specifically here – a discretionary grant of housing benefit, not DHP.

    The waters are further muddied when he says that authorities have no discretion in whether to make a payment. Where does this leave us? There are two options – a discretionary grant of housing benefit or a discretionary housing payment – Except the LA has no discretion…

    Your guess is as good as mine. I don’t think anyone will be able to make sense of this until Judge Mark clarifies his position.

    Another issue worth raising is whether the implications of this ruling stretch over to other disabled persons needing bedrooms surplus to those the regulations allow. Surely, the answer is yes, and the questions rising from that are whether LAs are acting lawfully (almost certainly no to every single one – not through their failings, but due to the mess we find ourselves in) and what must they do to act lawfully. Again, this remains as clear as mud.

    • David

      Good point on the ‘discretionary award of HB’, although that appears at para 10 as a previously floated hypothetical on which submissions were sought, not the actual terms of the Order. The order (and importantly the Court of Appeal Order in Burnip/Gorry) doesn’t say that.

      It does raise the question of whether the Council as benefit authority can award housing benefit in a ‘discretionary’ manner, taking discretionary here to mean ‘outside the regulations’ rather than ‘by choice’.

      I didn’t go into the implications for others not covered by the new regulations, because whether the new regs adequately satisfy the requirements of the Burnip/Gorry judgment is a whole other case. The actual findings in Burnip/Gorry may have a more significant role to play in that than this decision.

  5. Just to muddy waters (in general terms) even further there is a standard letter doing the rounds stating that continuous receipt of HB since before 1 Jan 1996 exempts tenants from the bedroom tax as eligible rent
    “….should be assessed in accordance with paragraph 4 of Schedule 3 to the Consequential Provisions Regulations 1996. This is because Housing Benefit Regulation 2 defines ‘eligible rent’ as follows:
    “eligible rent” means, as the case may require, an eligible rent determined in accordance with–
    (a) regulations 12B (eligible rent), 12BA (eligible rent and maximum rent(social sector), 12C (eligible rent and maximum rent) or 12D (eligible rent and maximum rent (LHA)); or
    (b) regulations 12 (rent) and 13 (restrictions on unreasonable payments) as set out in paragraph 5 of Schedule 3 to the Consequential Provisions Regulations in a case to which paragraph 4 of that Schedule applies;”

    Any thoughts?

    • Peter Barker made note of this at the start of the month (http://www.rightsnet.org.uk/forums/viewthread/5654/), and it seems to have spread fairly wide since then.

      It appears to be legit.

      No tribunal decisions to ‘confirm’ it yet, but I hear some judges have started asking councils to confirm whether these conditions are met prior to bedroom tax tribunals.

      I suspect the number of working age people caught by this exemption will be extremely low.

      The big barrier to awarding exemptions on these grounds would be identifying those who meet the criteria due to admin system switch-overs since 1996.

      Claimants who might meet the criteria will likely have to request individual investigations into whether they are exempt. And even then, the records held simply might not be sufficient to prove one way or another…

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