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.