Today brought a torrent of (well, two) First Tier Tribunal bedroom tax/LHA appeal decisions. Both are decisions on Article 14 grounds, and in one case, there is a detailed set of reasons for distinguishing MA & Ors, at least at High Court level.
A Brighton decision notice, finding that imposing one bed LHA rate on partners unable to share a room due to severe disability would be an Article 14 breach and that the regulations must be read to allow another bedroom. This decision post dates MA & Ors in the Court of Appeal. This is an LHA rate case, not a bedroom tax case, though the principle of argument and decision remains the same.
An Oxford Statement of Reasons. The adult daughter of the appellant is severely disabled and requires constant day and night care. Mostly this is provided by her parents, but respite care is provided for 41 nights a year, with an overnight carer. The Tribunal found that respite care was crucially important and that there would be an Article 14 breach in allowing the bedroom tax deduction as the bedroom was required for respite carers. The Tribunal (which made this decision before the judgment in MA & Ors in the Court of Appeal) distinguished the High Court decision in MA as follows:
“Contrary to the case in R(MA & Others), where there was no discrete group of claimants, the Tribunal was dealing with a single family whose circumstances are very particular. The Tribunal adopted the Court of Appeal’s reasoning in Burnip that, since DHPs are discretionary, of unpredictable duration, and payable from a capped fund “they cannot come anywhere near providing an adequate justification for the discrimination in cases of the present type” (para 46 of Burnip).
While there have to be doubts about the remedy – “reading Regulation B13(6)(a) as “the claimant or a member of the claimant’s family is a person who requires overnight care” – this is a clear highlight of the distinction between the public law challenge to the policy in MA and the the fact specific individual cases facing the tribunals, even where, as in this case, a DHP award had been made. This case has been appealed to the Upper Tribunal, so more as and when…