I’ve added a couple of new bedroom tax First Tier Tribunal decisions to the FTT page.
There is a Newcastle decision (Reasons here. Known as the Isos decision after the landlord who supported the appeal) which is a separated family decision. The appellant’s son stayed some 4 nights a week with him, but the mother was the one in receipt of child benefit. The Tribunal decided, despite the Council pointing out that the guidance they had received was that only the parent with child benefit should be the one not to face the bedroom tax, that the bedroom was clearly the son’s bedroom and that the appellant’s article 8 rights were engaged, as were the mother’s and the child’s.
It does not appear that there was any argument on the Upper Tribunal case of  TD v Richmond, or Marchant v Swale, as was also absent in the Liverpool decision. While this is undoubtedly a good result for the appellant, I think that like the Liverpool decision it resembles, it would be unlikely to survive an appeal.
Then there is a Camden decision which saw a 5 bed reduced to 2 bed with no bedroom tax. The reasons (here) seem to have been that one bedroom was occupied by an overnight carer. What was described by the landlord as a bedroom in the attic contained an exposed water tank and wiring so cannot be designated/used as a bedroom in the ordinary meaning of the word. The attic space adjacent to this had no natural light and had damp in the ceiling, it was not referred to as a bedroom by the landlord, though where the fifth bedroom asserted was is a mystery. On the first floor there were 3 bedrooms but alterations had been carried out, and no evidence that the appellant had done them, knocking together 2 of the rooms. (The decision is seriously unclear on this point).
I think the Newcastle decision might relate to ‘Isos’ as in ‘Isos Housing’: http://www.isoshousing.co.uk/welfare/
Quite right. Typo corrected.
Giles any chance of a case reference no. for the shared care case please?
All I’ve got is the decision as linked above, I’m afraid.
I think the FtTs realise that time is running out to have fun with human rights based bedroom tax appeals and they aren’t even trying to making it UT “judge-proof” any more. Hurry while stocks last! It is coming to something when a detailed statement of reasons for a Tribunal decision does include any reference at all to the relevant legislation
Are there different variables and enough of them to distinguish what little we know from the statement of reasons from both Swale and TD?
Both these cases were LHA and both predated the bedroom tax or to give it its correct title the Social Sector Size Criteria. The fact it is titled the SOCIAL Sector size criteria does differentiate it from previous size criteria applied to private tenant cases and precedents based on the fact the size criteria at the time of these UT decisions only applied to private HB cases not social sector cases?
One of the key issues in TD was the reference to Lady Hales words in Humphreys “The state is, in my view, entitled to conclude that it will deliver support for children in the most effective manner, that is, to the one household where the child principally lives.”
In this case the child principally lives / resides / occupies the house with the appellant – the so-called ‘absent parent.’ The facts of this case appear not to be the mythical 3.5 nights per issue of the two UT cases and there are some other differences to both those cases.
Could it be that the fact specific nature of this case (which is known to the FTT judge and the parties) do differ enough from the 2 UT decisions in Swale and TD?
No. I don’t think so. The decision is based on others that where the child ‘principally lives’ follows the child benefit. And as it seems that here both parents where in receipt of child benefit, the logic of ‘principally lives’ would mean the other parent facing the bedroom tax if the child principally lived with the appellant.
I think there is a lot more to be said on the issue of shared residency. In the first place, the distinction between ” occupancy” and ” member of the household” has not been clearly drawn. However, they are different. We can see that because the interpretation Regulation (Regulation 2?) in Housing Benefit gives a definition of ” non-dependent” and in doing so distinguishes them from a child who is not a dependent but is an occupier. I think the case Wirral MBC v AH and SSWP [2010] UKUT 208 (AAC) is very interesting. It dealt with cases involving shared parenting and fostering. Unfortunately it felt constrained to follow Swale in relation to the shared residence cases, but it did set out very clearly the distinction between “member of household” and ” occupier” and established clearly that a child could be an “occupier”. The result of this was that Regulation 21 (3) was then amended – it previously said that a foster child could not be a member of the household and it now says that a foster child cannot be a member of the household or an occupier. The logic of having to insert the words ” or an occupier” is that they are not identical concepts.
Humphreys and TD v SSWP are both dealing with a situation where an assessment has to be made of the claimant’s ability to support his/her own family. I mean that they are dealing with means-tested benefits but not the size criteria. Humphreys is dealing with Child tax credits, and there is a logic in assessing these by deciding whether or not someone is a member of the household. As far as I can see TD is dealing with the Applicable Amount – although paragraph 2 says it could in principle have an effect on size criteria, the facts of this case seem to be in relation to Applicable amount only.
Although Humphreys and TD deal with justified discrimination, they do not address Article 8 or the Children’s Act (needs of the child paramount). Neither does Swale, which explicitly does not address Article 8.
We do also have some precedents for taking the Childrens Act into account – see Holmes-Moorhouse v London Borough of Richmond-Upon-Thames [2007] EWCA Civ 970. Although this is in relation to duty to house the same principle might apply.
In summary I think there are many ways in which we can distinguish our bedroom tax cases involving shared residence from the precedents of Humphreys, Swale and TD v SSWP and Richmond-Upon-Thames. I note that Liberty’s Judicial review will be heard soon, but whichever way that goes, I don’t think it should deter us from pursuing shared care cases through the Tribunals System.
Holmes-Moorhouse marks a huge Art 8 hurdle in terms of (not) requiring the provision of accommodation for shared care of a child in a separated family. I don’t think it helps, which you suggest. Instead I rather think it is a big problem, not least because the Children Act was taken into account.
Liberty’s JR will nail this once and for all I think. As it stands there is a glimmer of hope that a case turning directly on the different issues arising under Article 8 and A1P1 respectively will find enough of a distinction, but I do think that the existing benefits case law on the A1P1 issue has raised the bar very high.
Hi, just realised I have posted what is essentially the same comment twice – thought I had forgotten to post my first one! There’s no need to put it up twice ! Ruth