DHP not enough to remedy?

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.

Comment

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.)

 

 

 

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 .

14 Comments

  1. Seems 100 per cent standard that the Bedroom Tax legislation did not take into account couples where at least one has a “own bedroom requiring disability” when it was conceived. Only hope now is that the Supreme Court makes a date for a hearing to get it all sorted out quickly to avoid more stress to those affected.

  2. DWP say MAIN HIGH courts twice decided in their favour. Not strictly true. We won tribunal after losing in high court. Their was enough leeway in the hc ruling for a couple like us to win in tribunal

    • Jayson, that is clearly right, as this FTT decision shows. Court may have upheld DWP position but only after concessions that backed them into an ever tighter corner on DHPs. And yes, your win in the FTT shows difference between ‘policy reasons’ and an individual’s actual situation.

  3. This is going to take much reading but a number of initial point having read through the once.

    DHPs – Judge makes specific points about Kirklees operation of DHPs and their ‘rules’ this is very very dangerous indeed to apply this elsewhere as other councils have very much different ‘rules’.
    An even greater dangerous issue is how much that is what percentage of their overall DHP budget Kirklees spent on bedroom tax – (39.8%) – in relation to the general conclusions the judge, naively of these figures, draws fro that. For example neighbouring West Yorkshire councils spent 29.8% (Calderdale), 39.6% in Bradford….yet a whopping 79% of total DHP spend in Leeds was on bedroom tax. Hence just 1 close neighbouring council spent almost three times as much as Kirklees.

    Would the judges arguments work just as well in LB Westminster who spent just 1.72% of total DHP on bedroom tax to the 142.3% of total DHP allocated spent on bedroom tax DHP in Bexley?

    Clearly not!!

    The judges total dismissal of room size and the reductionist proposition that ‘bedroom’ is a room with a single bed in it is woeful and if this stems from U6 2013 guidance which was issued 6 months after the bedroom tax decisions were taken is an irrelevant factor in his considerations and thereby very arguable as an error of law. Its one thing to argue that 1985 Act does not read across, an old well known view on roo size grounds, yet beyond that there is little discussion at all of size or the reasons for his ‘loathing’ and dismissive views on room size.

    The nature of what a bedroom is and what constitutes a bedroom was very cogently argued in the Sunderland decision and very persuasively so and perhaps this is not one of the statement of reasons this particular judge had read..and it also gives strong argument that ALL FTT cases are individually fact specific and as those facts were at the time the decision made (which it also strongly supported in Uratemp) and which this judge has overlooked and by doing so arguably makes another error of law by failing to consider that relevance.

    Finally on DHP and discrimination this still leaves the indefinite payment of a DHP which both the 2013 and 2014 guidance say should be made in conflict with Burnip in so many areas. Good overview other than that but in summary if he wants to link bedroom tax DHPs into HBR he really needs t look at the facts of what % of DHP was spent on bedroom tax cases which varies dramatically inter regionally and intra regionally and so huge errors in applying his views as he misses out hugely salient data on that issue.
    I do like his comment that why have so few appealed

    • Joe, You are missing the point about the local DHP scheme. It wasn’t about ‘availability’ of DHP or relative spend. It was about the conditions set by the Kirklees scheme – in particular that to get DHP applicants HAD to sign up to the homeswap scheme and search for ‘smaller’ accommodation, and that the DHP payments were clearly and repeatedly expressed to be for the short term. Individual FTT cases such as will always be on the DHP position of that appellant, including the application of the scheme to them. The national variation on spend is simply not relevant to an FTT case. It would be relevant to the public law challenges to the Regs as a whole.

      You don’t know what other statements of reasons the Judge had read. It matters little. They are NOT BINDING. I have no idea what you mean about facts at the date of the decision. I see no indication that the Judge was considering otherwise.

      Until the UT gets to grips with room size and room use, it is always going to be an argument with varied success and failure. I keep having to say this. Room size is arguable either way. And the ordinary use of ‘bedroom’ is not a closed, fixed definition and it can bite both ways, as it did here.

  4. Hi Joe
    What the judge did was apply the principle of proportionality to individual cases. Therefore the local DHP was of paramount importance in relation to consideration of the justifiability of the discrimination. This is the correct approach in dealing with human rights (although many English don’t understand it or apply properly). Rutherford is very helpful as it speaks about viewing the scheme as a “whole” which is, of course, essential when considering discrimination. Because of this we have to take into account the effect of the DHP just look at how the government used it to justify discrimination in MA (all that talk of locality and LAs being best placed to understand local needs). It is inevitable now tribunals will have to consider the operation of DHP in offsetting discrimination in individual cases.

  5. Giles. my point was precisely that – that the massive variation in DHP spend was relevant to the national argument. What I did was say that the issue of whether a DHP is enough remedy – which is your titling of this post – cannot be viewed without knowledge of the wide variation of % spend of total DHP on bedroom tax purposes.

    The judge is I agree attacking Kirklees risible constraints and the same would go for many LAs eg Coventry which demand 8 weeks of bank statements else no DHP when many of the bedroom tax tenants have the likes of just Post Office card accounts which do not give bank statements – or in simple terms Kirklees is not the only LA to have not put any rational thought into their DHP rules as many bedroom tax tenants will only have the most basic bank accounts that dont offer statements.
    Yet what the judge is also alluding to – and again the title of this article of DHP not being enough remedy – is that DHP policy is at least a supporting argument for other grounds of appeal if not a legitimate appeal ground of itself.

    As I commented above I have processed the actual DHP spend data regarding bedroom tax and previously stated here I believe the upper courts got the DHP justification for disability discrimination wrong. This actual and factual information now being available for 2013/14 (issued by DWP in June yet all of us missed it or its significance) and it supports my view on that

    • Joe, I’m sorry but you are still missing the point. The national position on DHPs and differences between local provision is, quite simply, not something the FTT can consider. The FTT is not and cannot deal with the adequacy of DHPs as a remedy in the abstract, or broad sense. Only a public law court can do that. The FTT can only be concerned with the specific situation of the specific appellant before it. Whether that appellant is getting DHP and whether that appellant is subject to any conditions on it being granted.

      The material you are raising – and indeed criticising the FTT for not addressing -is not material that the FTT can actually consider. It is not relevant to what the FTT has to address. The FTT is expressly not addressing and cannot address whether DHP in general is an adequate remedy for the bedroom tax in general. That is for the higher courts (and has already been decided, subject to the Supreme Court).

  6. Given that each council have their own DHP policy.
    I think each tenant should request a copy of their own councils, as a starting point………. Many councils appear to be granting DHP’s on a short term basis. With conditions attached. One of which is to show you have tried to move to a smaller property. This is ‘BLACKMAIL’. The availability of smaller adapted properties being VERY scarce. And, for many Disabled people, totally unsuitable. They may need another bedroom for an overnight carer. Or, for a partner to sleep in, if they are unable to share. Or, storage of medical equipment. Etc. Added to which, moving costs. Extreme stress and distress. A bed bound person, would never be able to cope with moving.
    And yet, how many times have this government stated that DHP’s are particularly there to help disabled people??!! There are also, MANY people, including the Disabled, that are completely refused any DHP at all. And, they then have to ask for a reconsideration. As there is no appeal process. Or, perhaps, ask for a Judicial review. Many, just give up. Then, of course, there are the many councils, using DLA as income. And telling tenants they can afford to pay the Bedroom Tax from their DLA. (I wish the Sandwell decision, would hurry up). So, again, these people give up……. The other day, IDS stated in the Telegraph. ‘DLA, which of itself is a payment to support housing costs’. Since when? I thought it was for care and mobility?? NOT, for paying rent??!!

    • We were also told that DLA is a ‘living’ allowance – ie. to pay rent and bills …..the judge was adamant that it didn’t matter that it was a ‘care component’. What I don’t understand is why there is nothing in the bedroom tax policy for those of us who were ‘medically assessed’ for a property. We ‘bidded’ on 40-50 houses and were told they weren’t ‘adequately sized’ for my needs. So, they put us in a 4 bedroomed house in order to put me a through floor lift in. Now, 8 years later – it’s ‘too big’ !!!

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  8. Forgot to add that we have a 13 year old daughter, a 10 year old son….i’m in a bedroom with my lift and only enough room for a single bed….my husband is also in his own room (which backs onto my room so he can hear me in the night (it’s only a stud wall)

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