A new First Tier Tribunal bedroom tax appeal decision from Liverpool, again a successful one, and this time on wholly new grounds. The decision statement is here (and also on the FTT decisions page)
The Applicant was separated from his partner in 2006, when their daughter was seven. He then lived in a one bed flat for two years before securing his current two bed property. Relations were amicable and a usual pattern of shared parenting was established with the daughter staying with the applicant and sleep at the property at weekends and over school holidays. This was the applicant’s primary purpose in seeking a two bed flat originally, to enable his daughter to stay.
The applicant had been classed as one bedroom over for bedroom tax purposes. He appealed to the FTT on the basis that:
i) He had a right to family life under Art 8 of the European Convention on Human Rights and that the regulations should be read in accordance with that right under the Human Rights Act. The arrangements for his daughter to stay with him were central to his family life and also his daughter’s family and were well established.
ii) Children Act 2004 recognised the importance of parents in improving the well-being of children and that arrangements are required to be made with a view to improving the well-being of children, including physical, mental, emotional, social and economic well-being.
On the Children Act argument, the FTT simply observed that “the Regulations did not envisage an accommodation of issues such as these”. So the appeal was wholly on the human rights argument.
The FTT considered that:
It would have been possible to simply approach this appeal on the basis that the Regulations do not envisage a need for an additional bedroom to accommodate the Appellant’s daughter in the circumstances of this case, that is, having regard to the right to family life of both the Appellant and his daughter.
However, the tribunal was persuaded otherwise.
The Tribunal accepted, too, that it was possible for a person to be resident in more that one place at a time, as found in AM v Secretary of State for Work and Pensions [2011] UKUT 387 (AAC). The Tribunal found, as a fact, that both the Appellant’s property and the property of his ex-partner, both constituted a home for the Appellant’s daughter and that the Appellant’s home could not be regarded merely as a place where the Appelllant’s daughter transiently or temporarily resided. That this should be held to be so was crucial to the well-being of the Appellant’s daughter, a child.
Significantly, the Respondent [Council] endorsed the findings of ‘The father’s Engagement Project. To find that the Appellant is not entitled to an additional bedroom to accommodate the Appellant’s ongoing engagement with his daughter directly undermines the findings of that project.
Accordingly, the Tribunal found that the regulations had to be read subject to the imperatives dictated by Article 1 Protocol 1, Article 8 and Article 14 of the ECHR, to the effect that, in the circumstances of this appeal, the Appellant was entitled to an additional bedroom to accommodate his daughter staying overnight with him.
Appeal allowed.
This is a first for a Tribunal finding on these grounds. I understand that the grounds echo those of the Liberty backed Judicial Review of the bedroom tax Regulations, brought by a separated family and children. This JR is ongoing, as far as I know, but I haven’t heard anything of its progress.
There is the usual question of how the FTT deals with ‘reading in accordance with’. The FTT has a track record of taking that to mean ‘pretending the regulations say what they ought to’, which is not how the higher courts will deal with the issue.
But this is a whole new ground for FTT appeals. And it will be very interesting to see how these play out.
[Update 19/02/2014. Thanks to Peter in the comments below, it is clear that this decision was made without any regard to the Upper Tribunal decision in TD v SSWP and London Borough of Richmond-Upon-Thames (HB) 2013 UKUT 642 AAC. On reading that decision, it is clear that the Article 14 finding of the FTT cannot stand. TD does not involve an article 8 argument, but the direction of paragraphs 51-54 in particular would show the hurdle an article 8 argument would have to climb. On considering this, the FTT decision looks potentially vulnerable to an appeal, and is certainly made per incuriam.]
Unfortunately the Tribunal appears to have been entirely ignorant of two landmark decisions of the higher courts and a host of UT decisions which have followed them.
The first is R (Marchant) v Swale Borough Council HBRB [2000] 1 FLR 246 which concerns the construction of provisions including words derived from the verb to “occupy”. The correct approach is that HB Reg 7, which is primarily used to determine whether a claimant satisfies the threshold eligibility condition of occupying the dwelling for which s/he is claiming HB, is also used to decide whether anyone else “occupies” the home where the Regs use that word or a cognate expression. The size criteria rely on the number of persons who “occupy” the home. A child can only occupy one home (except where the limited provisions of Reg 7(6) apply) and that home must be the one where s/he belongs to a “family” – normally with the child’s mother who gets Child Benefit. The AM case is concerned with the overlapping but legally separate question whether a person “resides with” another.
The other case is Humphreys v The Commissioners for HMRC which looks at the position of separated parents in the human rights context. The Supreme Court finds that the policy of channelling financial support for children through one parent is justified even though it tends to discriminate against men. Humphreys was followed in the recent HB case [2013] UKUT 0642 (AAC) TD v Richmond-on-Thames.
It could be argued that the size criteria question is distinguished from that of financial support for living costs: even in the HB case of TD cited above, the issue appears to have been financial means-testing rather than bedrooms. Perhaps the lack of bedrooms for children affects the father’s Article 8 right to have a family life at all, irrespective of the way in which cash benefits for living costs are allocated. But if the Tribunal believed that to be the case, it really needed to say so – the statement of reasons is woefully inadequate without even a mention of the Humphreys line of cases.
I think Humphreys and Marchant between them set the bar incredibly high for a separated father trying to make out a human rights case, but I do think there is perhaps just a glimmer of hope if the case focusses on the Article 8 issue and the Tribunal clearly records that as a distinguishing feature.
Remedy is still a problem: as Giles says, FtTs seem to have got into the habit of liberally reading in whole passages of new legislation. This decision doesn’t even specify the compatible reading the Tribunal had in mind. A lot of damage has to be done to the HB Regs in several places to achieve a compatible reading here.
PS – In the TD case Judge Wright makes passing reference to the bedrooms issue (see especially paras 50 to 53). Even though it appears the appellant in that case was seeking a more generous means-test outcome, the comments at paras 50 to 53 do seem to suggest that UT Judge Wright would probably have taken the same view on the pure Article 8 issue of bedrooms.
Thanks Peter. That is interesting. Yes, I was considering Humphreys as I wrote. I think there is a distinction between financial support for living costs and the room issue, but Marchant is more troublesome on that view, as is Holmes-Moorhouse (http://nearlylegal.co.uk/2009/02/were-not-in-sparta-any-more/ ).
But the FTT does not deal with ‘occupy’, focussing instead on whether the property was a ‘home’ for the daughter, which muddies the waters.
On remedy, I agree completely. I fear some of these decisions will be in considerable trouble on that point when and if they reach higher courts.
PS, have you got a link for the TD case?
TD case here:
http://www.osscsc.gov.uk/Aspx/view.aspx?id=4072
Thanks. That is devastating for the Art 14 part of the FTT decision. No Art 8 argued, but paras 51-54 would present real problems to the Art 8 line too. Hm.
The bedroom tax opens up another can of worms.
I have read and re-read the decisions cited above and one issue that arises is these were all taken before the bedroom tax took effect or at least argued without refernce to the bedroom tax.
That is significant as these rulings are based on the premise that HB is for ‘bricks and mortar’ alone and not a child / welfare benefit. That was the case pre bedroom tax when a social tenant could have 7 bedrooms and not affect the right of his childrent to have a bedroom there.
However, the bedroom tax is reducing HB according to a very crude level of ‘housing need’ of the claimant changed that and DOES affect the right to family life because of that.
The bedroom tax disallows a bedroom for a child in these circumstances and does reduce the HB in payment which does affect the estranged parents ability to afford a bedroom for his child and does impinge upon the parent and the child.
IF this decision is appealed up to the UT I strongly suspect it will be appealed higher because the previous decisions on shared care / mythical 3.5 nights per parent were taken without regard to the impact of the bedroom tax which does see the payment of HB impinge upon the ability of a child to stay with the estranged parent and vice versa.
The bedroom tax sees HB no longer be just a ‘bricks and mortar’ benefit and the law will need to be looked at again in this light.
Yet another pig’s ear of a mess caused by the crudeness and ill-conceived nature of the bedroom tax
Joe. It doesn’t matter that they were not bedroom tax decisions. What they are are decisions as to whether HB entitlement, or housing entitlement was required to be based on a parent’s need to have room for a child. The circumstances in these cases clearly, and dramatically, impinged on the parent’s ability to have a bedroom for the child. They were not about bricks and motar, they were all about ability to have the child stay.
TD means that the article 14 discrimination finding is not available to the FTT. The FTT in this case was wrong to find an Art 14 breach. Simple as that.
Article 8 is a different ground, not argued in the previous cases, but it will be an uphill battle, given that article 14 discrimination was found to be justified.
And then there is the House of Lords decision in Holmes Moorhouse.
This was about provision of housing, not housing benefit, but if anything, that is an even more drastic decision.
The previous decisions about benefits and care fully acknowledged that the financial result was ‘all or nothing’ and that this presented serious difficulties for the ‘lesser’ care parent. Nothing about the bedroom tax changes that.
I don’t agree with the argument that Swale completely knocks out the “family life” argument for two reasons. (a) The “size criteria” operate differently for private tenants – Swale predates LHA but the same principles apply. LHA is based on the needs of the household, and therefore the rate – one bedroom or two bedroom or whatever is assessed on the claimant, the partner, and their family. In the Swale case, to agree that the father needed accommodation for the children would be the same as increasing his LHA from one bedroom to three bedroom rate. However, the bedroom tax, applied to social housing, is based on the occupants of the house, whether they are members of the household or not. If non-dependants occupy a room then a room is allowed for bedroom tax purposes – they are occupiers but they are not members of the household. The argument about shared care is that the children are occupiers and can occupy more than one place (as can university students and possibly other groups) And Swale explicitly did not deal with the Family life (Article 8) argument. It says something like “since this was not pursued we will not bother ourselves with it here”. Therefore I don’t think that Swale rules out success on the family life argument in relation to the bedroom tax. .
Ruth, Merchant v Swale is precisely about whether a child in these circumstances could be an occupier of two properties for the purposes of HB regs. The decision was that the child could only be an occupier of one property. That is the problem it causes, regardless of whether it is LHA, or bedroom tax at issue.
I still feel strongly that the TD v SSWP and Swale line of reasoning can be challenged, and am hoping to write in more detail in that. However, in the meantime, we have had a refusal of appeal on right to family life, where grandparent often has children. Despite appeal not being successful I think it may offer grounds for hope as the appeal was not rejected on legal grounds but on the facts of the case – time spent, how regular, Social Services involvement etc. If I get permission I will post an anonymised version on this site.
We have also had two further successful size appeals. However, there is probably no need to post any more decision notices on these (unless they are on the argument about the size for a double bedroom) as there have been so many.
Ruth
Thanks Ruth. Are the room size cases based on 70 sq ft?
I have just realised that part of my argument on Swale is completely wrong – LHA is based on household plus non-dependants. However I still think that Swale cannot be translated directly into the bedroom tax situation, but will write further on this later.
Ruth
I would like to write more fully on the “right to family life” argument and the Humphreys, Swale TD line of caselaw which argues that it is impossible for a child to occupy two homes. I think it can be challenged for the following reasons.
(1) Humphreys is in relation to Child tax credits – i.e. a means-tested benefit to support children. It is reasonable that in a “shared care” situation a child is not “double funded” but we can distinguish this from providing a room for a child.
(2) TD seems, as far as I can read, to be about the Applicable Amount rather than the size criteria ( I am jumping to the conclusion that it was a RSL property prior to 2013) although the opening paragraphs of the decision do say that it would also apply to size criteria. Again the decision about the Applicable Amount is a reasonable one – the child would be double-funded if s/he had a personal allowance included in the Applicable Amount for both parents.
(3) By contract, Swale was actually about the size criteria and I can see why FTT might feel they have to follow it. However, I think there are three points to be made about Swale:
(a) they failed to distinguish between “member of a household” and “occupier”. There is a distinction – if so Regulation 2 would not have to exclude a child who is an occupier in their definition of non-dependent nor would Regulation 21 (3) have to exclude a foster child from being either a member of the household or an occupier. (The history of the recent amendment of 21 (3) in order to insert “or an occupier” seems interesting as it has ended up worsening the position of foster parents with more than one foster child for the purposes of size criteria whether bedroom tax or LHA). Of course even if we did establish that a child could be an occupier without being a member of a household, we would still have to face the hurdle of arguing they occupy two dwellings but there are a number of categories – students, remand prisoners, members of the armed services etc – who do occupy two dwellings.
(b) Swale explicitly said that Article 8 arguments were not pursued, so did not deal with them.
(c) The Children’s Act which makes the welfare of the child paramount has not been considered by Swale. There are precedents for the need to consider the welfare of the child in Local Authority housing decisions in shared residence cases.
To sum up – despite the precedents I think we can muster strong arguments against the bedroom tax in situations where parents are separated (both where residence is shared, and where the “absent” parent has contact.