Bedrooms, tribunals and article 14

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…

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in assured-tenancy, Benefits, Housing law - All, secure-tenancy and tagged .

12 Comments

  1. We are still waiting for leave to go to the supreme court. we won on human rights in tribunal a few weeks back on human rights article 14. We are the only test case of its “kind” still surviving in judicail review. Must be in the public interest to get this supreme court as we are just one case in a series that have had to get human rights using tribunal sevice on Bedroom tax, just like this case in Brighton. Theirs a whole string of successful tribunal cases stretching back to October on this human rights issue, back before the unsuccessful High Court appeal and now a string afterwards. We are keeping our fingers crossed for to be allowed to put our case at least to a judicial hearing

  2. I find the Oxford case very interesting as the situation was very similar to the case RAISE took last November. (It is the first Liverpool case listed on Nearly Legal and has of course been appealed by the DWP. However, in our case the judge found the discrimination to be between a disabled non-dependant and a disabled claimant/partner. In the Oxford case the judge finds the discrimination to be between an able-bodied non-dependant and a non-dependant with disabilities. It’s the same principle, just different ways of looking at the situation but I actually prefer the Oxford approach because the discrimination is on grounds of disability. In both cases the remedy is ” reading into” the legislation through the Human Rights Act. I would have thought there would be more of this kind of case, and would be interested in hearing whether they have been rejected by FTT or whether there have been other favourable decisions. Ruth

  3. I must say I prefer Tribunals to apply this kind of remedy where a specific s3 HRA-compliant reading of the legislation is proposed. I think this particular remedy is quite neat, it’s a light touch that doesn’t require much surgery to be done to the Reg. It would also work perfectly well for disabled children as in the Rutherford case. DWP would probably say that the word “partner” simply does not extend to blood relatives in any circumstances and that this decision has gone beyond interpretation and strayed into creation or substitution. But I admire the Tribunal for opting to provide a clear remedy instead of the rather vague “the claimant’s human rights have been violated so now the Council has to make it better somehow”

  4. The Oxford case is now numbered CH/1398/2014 by the UtT and has been stayed pending the outcome of CPAG application for leave in Rutherford. One issue not addressed in the case (the claimant acted alone before the FtT) was size criteria. The room at issue is 57 sq ft, L shaped with an ‘upstand’ over the stairwell.

    • Our case is now being officially contested by secretary of state at upper tribunal. My initial response is “It doesn’t matter if a magician drafts legislation, you cant fit a couple into hospital bed” As for disabled adults not exempt————-it wasn’t until later life that she needed this bed. We are part of a discrete group that FTT are recognising and even the judicial review recognised tho said case was too broad. I’ve mentioned Clegg changing his mind on the exemption of disabled adults AFTER reading a DWP report critical of the Bedroom Tax.

  5. Still waiting for the Supreme Court to sort the Law out across the board on this. Maybe it will clarify the partners/disabled/couples, sort out the circumstances. Live in hope anyway…………………………………………………………………………

  6. Also disclosed that we were refunded monies by council and will face massive bill if govt wins further down line……….

  7. The ‘Oxford’ case refers to my family, and Peter Turville is very kindly representing us now for the UtT. I was so pleased to win our FtT, but always knew they would be seeking permission to appeal to UtT, which they strung out but did eventually (just in the nick of time!). Very disappointed as it make one wonder why they bother having a FtT, when pretty much the councils or DWP will try their utmost to appeal all decisions possible :(

    • They seem set on just doin away wi human rights altogether. We are having ours just tracked over so that their train can get to its destination

    • You’re not wrong there Jayson :/ I’ve not been much on the BT groups on Facebook lately, so have not caught up with you for a long while & what’s happening… how is your appeal getting on now? x

    • In May the council refunded us rent of 700 pound after our court battles in two courts for well over a year on our “human rights violation” when we won in FTT. We were exhausted. Recently the DWP approached the Judge and he turned their appeal down, we had a break, when we got back the upper tribunal had contacted both the FTT and us of a DWP application direct to UT. I was shocked and dismayed, if their app is successful and they win we will be plunged into rent debt overnight after upper tribunal hearing. WE heard about a almost identical case in Glasgow that might be decided any moment. I’m thinking why the DWP start appealing ours NOW so I wrote to upper tribunal requesting they send me the ERROR of LAW DWP is applying on to appeal our case. This has all kicked off in the last 3 weeks and i haven’t yet spoke to my solicitor but will do shortly and fill them in

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