We’ve received an interesting First Tier Tribunal (so not binding) appeal decision from Wakefield, thanks to Kirklees Law Centre. A copy of the statement of reasons is here (not anonymised as the appellants consented to it being used largely unredacted).
Mr G was the tenant, occupying a two bedroom property with his wife, Mrs G. Mrs G has severe disabilities following a fracture to her back and the couple had been moved to the property, a bungalow, to which substantial adaptations had been carried out by the local authority landlord. Asa result of Mrs G’s disabilities, Mr G was not able to share the bedroom and there was no space for an additional bed. So Mr G slept in the second bedroom. Mrs G receives higher rate mobility and highest rate care DLA.
The Council as benefit authority had applied a 14% reduction in HB for the property. Mr G had been granted DHP back dated to April 2013, but, as a condition of DHP, Mr & Mrs G had to search for a one bedroom property (despite, as they pointed out to the FTT, the fact that this would inevitably have to be of a larger floor space than the current property, and would need adaptations). Further, the DHP was expressed to be time limited and of short duration.
The FTT found that the conditions on the DHP and the expressed short term nature of it meant that “I cannot see how the discretionary housing payment policy of Kirklees Council “plugs the gap” in relation to their claim for housing benefit and the effect of regulation B13″.
While R (Rutherford) v SSWP [our report here] had found that payment of DHP was enough to amount to justification in that specific case, the time limited and short duration of DHPs in Mr G’s case “must cause unnecessary distress to Mr and Mrs G in a way that was not the case in Rutherford. In that case there was more confirmation that the payments would continue and there was no requirement to look for alternative ‘cheaper’ accommodation”.
So, the FTT found Reg B13 should not apply.
The detailed statement of reasons sets out that the FTT is reading an exception into Reg B13, on the basis of Art 14 discrimination, via Art 1 Protocol 1.
Although I am not sure it is fair to say that the Rutherfords were not caused distress through their dealing with the benefit authority in seeking DHP, and also that the guarantee of future payment was pretty much wrung out of the Council by the High Court, I think it is the case that there weren’t other conditions such as the tenant attempting to ‘downsize’ (actually upsize in space terms) attached to the DHP payment. The conditions imposed in the G’s case were clearly intended to push them to move, under threat of the end of DHP support.
I said in response to Rutherford that the case had effectively made payment of DHP in each disability based case a requirement for the DWP to avoid unlawful disability discrimination. The approach of the FTT here is along the same lines, and further – even though DHP was in payment, it was not a mitigation of the discriminatory effects of the bedroom tax because it was both ridiculously conditional and expressed to be short term.
The given reasons on DHP are, I would say, a logical consequence of Rutherford, and well worth noting for similar appeals. Well argued by Kirklees Law Centre.
(It is also worth a look at the detailed statement of reasons at 52-55 for arguments on room size and room use not succeeding in other appeals heard at the same time. The FTT was unimpressed by the Housing Act 1985 size standards argument, or by change of use arguments save in one case where the room had been converted to a bathroom by the Council. The rooms were ‘large enough for a single bed, at least’, and ‘it would only be in limited and exceptional circumstances […] that a room which had been designated as a bedroom and which could be slept in is now in fact to be regarded as some other type of room by this tribunal’. A warning, if one were needed, for those taking an all too literalist view of what amounts to a bedroom.)