Bedroom tax and human rights FTT miscellany

No less than four FTT bedroom tax appeal decision have come my way lately. Three of them concern successful appeals on human rights Article 14 discrimination or Article 8 family life grounds. One is a clear room size decision with an interesting footnote on tenancy agreements.

I’ll start with the most comprehensive decision, which while semi-successful, raises some important issues in its failed grounds, and a question in its semi-successful ground. The decision, SC231/13/01993, from Bedlington, [Statement of Reasons here – a large and not very legible pdf file, I’m afraid], is by Judge A N Moss, who also allowed the appeal in the Sunderland Lift in the bedroom case.

The appellant had a three bedroom property – which he had been told to bid for by the council landlord, as his children from two ended partnerships were to stay with him often. One child then came to live with him. The other child visited and continues to do so for a weekend per month and for weeks at a time during school holidays.

The council decided the bedroom tax applied, apparently because only one child was resident, though this is not clear. There was an ‘additional’ bedroom.

Now it is worth noting that the Council initially wrote to the appellant stating that he did not have a right of appeal from their reconsideration, which is utterly wrong, probably intended to prevent people exercising their right to appeal, and arguably maladministration and an issue for the Ombudsman.

The Council then only provided the appellant with a fraction of the appeal bundle, so that the appellant had to use the Tribunal’s copy, and, to add insult to injury, the Council then didn’t turn up to the hearing, without reason or excuse. This is very shoddy behaviour indeed. The Tribunal decided to go ahead anyway, noting the Council’s “contempt and fundamental lack of respect to the judicial process”.

The appellant, in person, advanced a number of arguments: Room size – based on the Housing Act 1985 Part X overcrowding provisions; Room use – the room was never used as a bedroom; Article 8 breach of family life in not taking his visiting son into account or the appellant’s ability to find resources to travel to see his son.

On room size, the third bedroom, described as a box room, was either 55 or 67 sq ft. The Tribunal found that it was large enough to fit a single bed and maybe a chest of drawers. The Tribunal did not accept that the Housing Act 1985 criteria had any relevance. (And here the Tribunal’s finding is exactly the counter-argument on the HA 1985 criteria that I have forecast being made since the start).

What is clear from this legislation is that involves an assessment of the number of rooms, the number of people in the dwelling, the rooms available as sleeping accommodation. The size of a room is used to decide how many people can be treated as sleeping in it for the purposes of calculating whether a dwelling is overcrowded.

The Housing Act 1985 therefore regards overcrowding not only in relation to the number of bedrooms and the people in bedrooms but those who could sleep in a living room [sic]

It is an assessment of the overall number of people in the property compared to the rooms and space available. It has a definition of sleeping accommodation which is fundamentally different to that contained within the MRSS [bedroom tax]. It is not limited to bedrooms. […]

The relevance of a room having a floor area  of less than 50 square feet is relevant for the calculation of the number of people in the dwelling for the purposes of overcrowding. It has no other relevance. It has no relevance as far as the MRSS is concerned.

Room use receives a more nuanced treatment, but again, the clear counter arguments to the more wildly optimistic of arguments about what makes a bedroom are made clear. Intriguingly, the Tribunal adopts what it describes as a mixture of an objective and subjective approach.

By objective criteria the Tribunal means looking at the room from the outside without personal connection to the property – would that room normally be regarded as a bedroom.

By subjective criteria the Tribunal means are there particular circumstances in this case which would suggest a room which would normally be considered a bedroom should not be one.

As a key example of ‘subjective criteria’, the tribunal references its own earlier decision in the Sunderland case. While the room with a lift in it would fit a bed, it lacked the necessary qualities of privacy and personal space for a bedroom, so long as the lift was required by the disabled occupant. The subjective element being that “degree of privacy and sanctuary […] to separate yourself from other parts of the house”.

The specific arguments on room use advanced by the appellant (referred to as Mr below) were dismissed. He argued that the room had never been used as a bedroom, and that he used it to store his weights. The Tribunal referenced the lift in the room example and stated:

Such scenarios are qualitatively different from the situation where someone uses what would be regarded as a bedroom for other purposes such as an office or a study. A person has chosen, for personal reasons, to use that particular space in that way.  Mr    has chosen to have weights and to put them in that room. That use could change very rapidly e.g. he stops using weights.

The Tribunal therefore find that, unless there is something very peculiar and persuasive to the particular needs of that person at that time in the house the use to which a person puts the room out of choice and preference does not prevent a room which is capable of being a bedroom, one which is normally regarded as being a bedroom, from being classified as such for the purposes of MRSS.

So, to the Article 8 argument, based on the appellant’s separated family and son coming to stay regularly. As it was initially put, this argument got short shrift. Mr    argued that the additional costs of travelling to see his son would be unaffordable if the bedroom tax applied. The Tribunal found that there were cheaper ways of travelling than running a car, as relied on by Mr , but in any event:

Everyone has to make choices based on their financial circumstances. Since he moved into [the property] Mr   was in receipt of Jobseekers Allowance . JSA provides limited financial assistance but that did not seemingly prevent him from having regular access to his son in Scotland. He made financial choices to make sure that could occur. Since April 2014, his level of HB has reduced as his income has increased. However, this has had no effect on his ability to make contact with [his son].

[…] Changes to tax rates causing a reduction in net income would not contravene Article 8. They are part of normal economic policy. MMRS can be regarded in equivalent terms. In effect it amounts to a tax on someone’s income. There is nothing in Article 8 which requires the state to pay for the full amount of rent due to a landlord.

There was no breach of Article 8 based on Mr’s  contact with his son. However, when it came to the time Mr’s son spent at the property, things were a bit different.

The definition of occupying the dwelling as a home has to be interpreted in accordance with Article 8 – the right to a family life.

It is crucial to family life and society’s well being that parents, even though separated, maintain good and regular contact with their children. […] Fathers and mothers are entitled to see their children. […]

Maintaining good and regular contact usually means the child says over on a frequent basis. Personal circumstances may determine how that operates in practice. For example […] parents who live many hundreds of miles apart may have to arrange blocks of contact because weekly contact would be impractical. […]

It is clear that [staying son] regards [the property] as his home when he is there. it has all his belongings there. His brother is there. […]

The Tribunal is satisfied that this test has nothing to do with who receives child benefit. The mothers receive the child benefit. […] It is not possible for more than one parent to receive child benefit even where there is a 50/50 split as to where the children live.

Now the crucial bit in this case was that as of 2 August 2014, the elder, resident, son turned 16. So while before that date, even if the younger son was counted as resident, which was the Tribunal’s finding, the two sons could share the second bedroom (as in fact they did)., there would be an entitlement to a third bedroom from 2 August under the regulations, as one child would be over 16. So, while the retrospective appeal failed, for the reasons given above, the Tribunal found that from 2 August 2014, there was an entitlement to 3 bedrooms.

Comment

This is, of course, a non-binding FTT. However, the finding on ‘separated families’ – that it is possible for a child to have two homes, is a significant one, echoing as it does the decision in the Liverpool case. For a household where that child staying would result in entitlement to an additional bedroom, this is important.

My concerns with that finding are the same as with the Liverpool case, though. While the statement of reasons in this case gives a clear basis for the decision, there is no address to the Upper Tribunal case of TD v SSWP and London Borough of Richmond-Upon-Thames (HB) 2013 UKUT 642 AAC or the finding on the meaning of ‘occupy’ in the regulations in R (Marchant) v Swale Borough Council HBRB [2000] 1 FLR 246. As such, the decision appears to be at risk on appeal and appears to be made per incuriam, without knowledge of relevant case law.

The rest of the decision sets out clearly the counter-arguments to the room size and room use arguments that have been advanced, sometimes successfully, in other tribunals. These are the arguments (amongst others) that I would expect to be deployed in the forthcoming Upper Tribunal test case on room size, and any test case on room use.

As with the earliest decision on room use, Thomson in Fife, the Tribunal here is really only prepared to entertain arguments on use where that use is reasonably necessary to the household’s continued occupation of the property (such as the use of the lift in the Sunderland case). Although not addressed here, any arguments based on a simplistic reading of the Bolton UT decision, or on the misinterpretation of Uratemp, would also fail.

Any article 8 argument based on financial resources, as was made in this case, seems doomed to failure, as there is no generalised right to benefits.

The Tribunal’s approach to considering the need for an additional room and room use – a mixture of objective and subjective approaches – is interesting. In effect, individual circumstances are to be considered, but are not the whole – the individual’s views on whether or not a room is a bedroom are not determinative.

Now for the other FTT decisions.

Liverpool SC068/14/1262. [Decision Notice] The appellant lives alone in what was categorised by the landlord as a two bed property. He is disabled, receiving high rate mobility DLA, and the property had been adapted by the landlord to include a wet room, adapted toilet and handrails throughout. Sometimes the appellant had to sleep downstairs when unable to climb the stairs. The second room had never been used as a bedroom during the tenancy and was “a dumping ground” for the appellant’s “junk”.

The Tribunal found that the appellant could not take in a lodger because of his need to sleep downstairs on occasion. He had received some DHP, but was not currently in receipt. He had to visit the housing office to apply for DHO and this was very difficult for him. He was in a low transfer priority and there were few adapted one person properties available.

The Tribunal considered the DWP interim report, and distinguished MA & Ors on the basis that DHP was not in payment. None of the other remedies for the appellant’s position (downsizing, taking in a lodger, finding employment) were applicable. There was therefore unjustified Article 14 discrimination in both the imposition of the bedroom tax and in the lack of ease in applying for DHP.

Room use arguments were not accepted – the use of the room was the appellant’s choice. The argument from the Bolton UT decision, the ‘definition of a bedroom’, was also rejected, the Bolton UT did not give a closed definition of what was a bedroom. The (mistaken) argument from Uratemp on room use defining the room was also rejected. Uratemp referred to the whole of a dwelling, as a dwelling.

The remedy was to read into the HB regulations B13(5)(b)

A relevant person is in receipt of high rate care and/or high rate mobility Disability Living Allowance or the enhanced rate of PIP for either daily living or mobility, lives alone and is in accommodation in a property which has been specifically adapted by the landlord by reference to his needs for mobility or care by way of kitchen, bathroom or stair adaptation which makes it feasible for him to live alone and with no overnight carer.

That is a pretty specific set of circumstances. My usual concerns about the extent of reading in remain.

The unique point about this case is that an article 14 argument was accepted not on the need for the ‘extra’ room due to disability. There was no such need. The discrimination found was effectively in imposing the financial hit on someone who was unable to move or otherwise remedy the situation, and also required an adapted property. I am more than a little uncertain about this.  The logic would seem to suggest a right to adaptations. While in this case the adaptations already existed, can there be a right to retain adaptations which is distinct from a right to have them done in the first place? And there is no right to have them done.

Liverpool SC068/14/01608. [Decision Notice] A disabled couple, where the one needed the second bedroom to sleep due to partner’s disabilities and need to store medical equipment in the bedroom. The Tribunal found the position was closer to Burnip than MA & Ors, and that MA & Ors “did not mean that on the individual facts of an appeal before the tribunal, on any given case, that the Tribunal could not find that the Appellant suffered from discrimination contrary to the ECHR and that such discrimination in any given set of circumstances could not be justified.” The clear logic in maintaining that children have a greater need for protection than adults (as MA distinguished Gorry) simply meant that Gorry could not be automatically applied to adults, not that it could never be applied to adults.

The remedy was to read in to 13(b)(5)(a) an exception where:

A couple (in the meaning of Part 7 of the Act) or one member of a couple who is unable to share a bedroom because of his or her disability or the disability of the other member of that couple.

An alternative argument on room size was rejected. Not least as the room was used as a bedroom and the appellant said they were happy there.

While it is good to see the FTTs prepared to distinguish or otherwise avoid MA & Ors, one has to wonder how far the approach here would be effective on appeal. While it is quite right that MA & Ors does not prevent FTTs from deciding on the specific facts of the case in front of them, there is apparently no examination of whether DHPs were in payment, and if so with what conditions, as was carried out in this FTT case.  It is, bluntly, not open to the FTT simply not to deal with MA & Ors, which is what happens here – no basis is asserted for finding unjustified discrimination in circumstances where the Court of Appeal in MA & Ors found it justified. While there may well be reasons, none are explored, found or asserted.

Lastly Truro SC247/14/00201 – Kent. [Decision Notice] This is a short and sweet room size decision. The room had a useable floor space of less than 50 square feet and was being ‘reasonably used for storage of the tenant’s possessions’.  Further, the property was let in 1996 with ‘no designated number of bedrooms’ – presumably the tenancy agreement failed to specify the number of bedrooms, which is a detail worth looking at in other cases.

 

 

 

 

 

 

 

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 .

10 Comments

  1. At a macro, layman’s level, it does seem to me that in cases where the BT threatens the well-being of children or disabled people, the FTT often strains to distinguish MA in order to get what may be seen to be a just result. DWP must know that if it tries to overturn these decisions they won’t have an easy ride in the media. And the moral of that is not to pass laws that will be seen by a large number if ordinary people to be arbitrary, unjust and discriminatory against certain sections of the population, regardless of their legality. It is in this sense that I believe some liken this to the Poll Tax, since the BT affects only a very small percentage of the population, unlike the Poll Tax of course.

    • Sadly, Jane, I doubt that appeals to the Upper Tribunal by the DWP wold get much media attention, and the DWP seems to be frankly unembarrassed by such cases going to the Court of Appeal.

  2. On first case shocked at way council conducted itself. I grew up in Bedlington and it’s always been run by labour , and I think it still is part of Ian Laverys constituency

  3. Jane, we are still waiting to see if the Supreme Court will take the judicail review any further and offer a hearing in light of our personal ftt victory and the DWP is apparently attempting to go to utt on

  4. Yes, I’m aware your case is still ongoing, Jayson, and i do hope it will go further. At present, of course, the Court of Appeal decision sets the precedent where relevant. And that’s why some FTT’s are trying so hard to distinguish it, where they clearly feel justice demands a different approach. My take on it is that the reason it’s getting in such a mess is because the regulations themselves are not fit for purpose, as we’re well aware!! Your own tribunal decision, of course, was excellent news…

  5. I hope article 14 can’t be overturned in tribunal. Only trouble is if they overturn some other legal argument relating to judical review. Don’t know if that will mean having to pay spare room subsidy again. I asked the utt what the DWP were , what error of llama they were contesting, but they have not answered yet. Also another problem, the council accepted the ftt verdict and refunded us , we needed a break desperately and it covered all of that. So now if DWP win utt we MIGHT have almighty bill coming thru of arrears in one go ……..lord

    • Jayson – the Upper Tribunal could find that the FTT took the wrong approach to Article 14, but it will be a difficult argument for the DWP to make in your case. And quite a different approach to that of the Court of Appeal. We are all waiting impatiently to hear from the Supreme Court – I would be surprised if permission wasn’t given.

      If – and it is a big if – the DWP win in your Upper Tribunal case, I would suspect it could only be on the basis that DHP would be or should be available. There would be a good argument for DHP to cover any arrears, I should think.

      But no-one should have to go through all this! Best wishes to you all.

  6. Thanks Giles. Yeah, in the Rutherford judicail review the judge ordered council to pay dhp without application. This is different. It’s upper tribunal and council has put itself out of the frame. Just the DWP and us . Sefton councils always been bitterly opposed to spare room subsidy. We don’t get dhp now, but we did. We are pleased we did win tribunal and hope we can help others with win . It is and has been very very stressful and this forum helps

  7. Both Liverpool cases and Truro. All come up a the same case.(Lloyd) when I try to open the statement of reasons??

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