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  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.
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.]