Separated families and bedroom tax

Cotton & Ors, R (on the Application of) v Secretary of State for Work and Pensions & Ors [2014] EWHC 3437 (Admin)

This was the Liberty backed judicial review of the bedroom tax regulations on the basis that the regulations amounted to an article 8 breach, or an article 14 breach read with article 8, or that the regulations were irrational. At issue was the status of separated families where there was shared care.

One claimant’s situation was that:

In February 2012 Southampton County Court made a shared residence order providing that the children should reside for one week at a time with each parent. The order recorded that this would be in the best interests of the children. This arrangement was put into effect. From July 2012 Ms Cotton received child benefit for her daughter, while her ex-husband received child benefit for her son.

The result of these arrangements was that Ms Cotton had responsibility under the Regulations for her daughter, but not for her son. Accordingly, from 1 April 2013 she was entitled to claim housing benefit calculated by reference to the bedroom which her daughter occupies, but not her son’s bedroom. This meant a reduction of 14%, which amounts to £13.28 per week. However, in August 2013 Ms Cotton became the primary carer of both her children. There is no evidence as to why this happened – for example, whether for some reason the shared care arrangement was not working or because circumstances changed. As a result Ms Cotton’s housing benefit was reinstated to its pre-April 2013 level. (DHP had been in payment during the April August 2013 period).

The Second Claimant had care of a nine-year-old daughter and a ten-year-old stepson in a separated family at weekends and school holidays, but was facing the two bedroom deduction on a three bedroom property. DHP had been in payment, with interruptions, but was currently in payment.

The third claimant had roughly 50/50 shared care of his 13 yo son. The mother received the child benefit. The third claimant was subject to a one bedroom deduction. He was receiving DHP on a two monthly grant basis, which continued with a couple of interruptions in the past.

The Claimants’ argument was that a failure to include the bedrooms required for the children to stay within the assessment for HB amounted to a breach of article 8.

This did not get very far. The Court’s opening observation was:

A short answer to this claim is that as a result of the DHPs received by each of the claimants, which have completely compensated for the reduction in housing benefit paid to them (or would have done, in the case of Mr Hutchinson and Mr Cohen if the correct applications had been made), none of the claimants has suffered any interference with their family life capable of amounting to a breach of article 8. They continue to live where they lived before the changes in housing benefit. Their children continue to live with them to the same extent as they did before. They have the same net income. There is at most the possibility of a change in these circumstances in the future, coupled with a degree of understandable anxiety about this possibility and the stress involved in making further applications for DHPs. Ms Lieven submits in her skeleton argument that interference in the claimants’ article 8 rights comes at the point when the loss of their home becomes a real and immediate prospect. On any view that point has not yet been reached.

However, the court went on the consider the position based on the possibility of DHP being withdrawn in the future (and these were, on the whole, short term awards of a few months at a time). On this, the DWP’s position was overstated.

Mr Coppel for the Secretary of State submits that because local authorities are required to exercise their discretion in accordance with public law principles and to comply with the Convention, it would not be open to them to withdraw DHPs if that would constitute an infringement of the claimants’ article 8 rights. That is so, but it begs the question whether or in what circumstances there would be such an infringement. I consider, therefore, that it is necessary to grapple with that question, as both parties urged me to do.

Moreover, it seems to me that there is at least an element of inconsistency in the Secretary of State’s position. Mr Coppel submits that the present claim is bound to fail as a result of the decision of the Court of Appeal in MA. However, that decision, as has been seen, depended heavily on the availability of DHPs for disabled people. However, the Secretary of State has refrained, at least in these proceedings, from saying that DHPs should generally be available to parents with secondary responsibility in cases of shared care. Indeed he declined an invitation by the claimants’ solicitors to amend the Guidance to specify that they should be available in such cases, preferring to leave this to the unguided discretion of local authorities. Moreover, when the issue of shared care was raised in the House of Lords debates on the 2012 Regulations by the Bishop of Norwich, the response of the Minister for Welfare Reform, Lord Freud, was not that DHPs would usually (or at all) be expected to deal with such cases, but that the taxpayer should not have to pay for two bedrooms for any individual child.

However, any assessment on possible changes in the DHP situation for these claimants was on the basis that:

that the withdrawal of DHPs would mean that the claimants could not continue to live in their current homes and that their children would no longer be able to live with them on a regular basis, but that a strong and loving relationship with their children would nevertheless continue. The children would lose one of what they presently regard as their two homes, but would not face any risk of homelessness or destitution and would continue to be able to live with the parent who has primary responsibility for them and continue their current schooling.

The result, in this judgment, was that

while I recognise the difficulties which the claimants may face, the situation with which I am dealing in the present case falls far short, in my judgment, of what would be required to constitute an interference with the claimants’ article 8 rights.

Further, the issue of separated families had been raised in Parliament (or at least the House of Lords) in the course of the passage of the regulations. Therefore:

There can be no doubt that the issue was drawn to the attention of Parliament, and that Parliament nevertheless voted to approve the Regulations. Parliamentary approval of the Regulations was an important feature of the Court of Appeal’s decision in MA. After summarising relevant parts of the debate at [31] to [33] of his judgment, Lord Dyson MR returned to the topic at [81] in giving his overall conclusion on the issue whether the discrimination against disabled people had an objective justification:

“Secondly, the need for the court to be cautious about finding unlawful discrimination of a statutory instrument passed by affirmative resolution of Parliament is heightened by the fact that some of the principal complaints that are made by the claimants were expressly raised and discussed during the parliamentary debates and rejected.”

The context for this statement was the issue whether there was justification for discrimination, but the reasoning applies similarly to the question of interference with article 8 rights as a result of legislative decisions in the field of economic and social policy.

Thus, following MA, there was a high threshold to meet to show unjustified interference with article 8 rights:

For these reasons I conclude that even if the reduction in the claimants’ housing benefit brought about by the 2012 Regulations has the effect of compelling them to move to a smaller property where their children cannot live with them, that will not of itself be an interference with their rights under article 8. Something more would be needed to reach the high threshold required in this context. In practice, however, if that something more were to exist in any particular case, the probability is that DHPs would in fact be made by a claimant’s local authority.

The regulations were not without reasonable foundation. Following MA and Ors:

I accept also that, like MA, this is a case where there is no readily definable category of persons who might be made the subject of an exemption. If parents whose children stay with them for about half the time, why not one or two nights a week? Why not grandparents or other close family members? Ms Lieven’s response was that a line has necessarily to be drawn somewhere in welfare cases, that the claimants were only required to show that the Secretary of State had failed to justify the Regulations in their case, and that it was for the Secretary of State to bring forward appropriate proposals. I accept, however, that the difficulty of defining an appropriate category of persons with secondary responsibility in shared care cases to whom the Regulations should not apply is a relevant consideration, for the same reasons as given by the Court of Appeal in MA.

For the purpose of this stage of the argument, I am proceeding on the basis that although the fact that the claimants have to move to a smaller property where their children cannot live with them will not of itself be an interference with their rights under article 8, there may be cases of particular hardship over and above the reduction in family life which that situation necessarily involves and that such cases of particular hardship may on appropriate facts pass over the high threshold required to amount to an interference with article 8 rights. In that event, I accept that local authorities would be required to consider applications for DHPs so that if in a particular case a reduction in housing benefit did threaten to infringe Convention rights, the relevant local authority would have a duty to consider awarding a DHP to avoid that infringement. In the light of MA, that is the appropriate approach to the question of justification. (Conversely, however, if — contrary to my decision — the appropriate assumption is that if the claimants have to move, that will of itself interfere with their article 8 rights, whether the availability of DHPs provides sufficient justification is less clear. Such a conclusion would be tantamount to deciding that in every case where a parent with significant secondary responsibility would otherwise be forced to move, there is an obligation on the state to make good the housing benefit shortfall by means of DHPs. That would appear to be a far-reaching conclusion, although on the view which I take it does not arise).

So, there was no article 8 breach because DHP was in payment.

Even if DHP had not been in payment, simply having to move to a smaller property would not in itself amount to an article 8 breach without more.

And even if article 8 rights were engaged and arguably breached, there would be an obligation on the local authority to consider paying DHP, and thus the DHP scheme amounted to sufficient justification to prevent the putative Article 8 breach, and to prevent the regulations from being manifestly without reasonable foundation.

The followup arguments on article 14 discrimination against ‘parents with secondary responsibility’ (though accepted as an ‘other status’ for discrimination purposes) and irrationality of the regulations consequently failed.

Comment
Given recent Upper Tribunal decisions (referenced in this judgment), this does not come as a huge surprise. As with other challenges, DHP actually being in payment is to a degree fatal to establishing a human rights breach in the regulations. It is disappointing to see the court take this view even on manifestly short term DHPs, and for a situation that is not covered in the DCLG guidance on DHP support, but it does cement the position that we have previously observed, that DHP in payment is increasingly a requirement in individual cases to avoid the regulations being unlawful.

I’m aware that a number of appeals to the Upper Tribunal have been stayed pending this judgment. This decision will not be good news for the tenants.

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 , .

17 Comments

  1. No, it’s not good for other tenants at all.
    It is not good that the decisions were based around DHP.
    it’s a shame the Judge wasn’t given more facts and information.
    It makes it sound as though it is simple process. Which, it is far from being so.
    The application form is a nightmare.
    No, right of appeal. Only asking for a reconsideration.
    Then, there are the councils, using DLA as income.
    Yes, he mentions there are only government guidelines.
    But, that means, that each council have their own policy.
    So, it can be a ‘postcode lottery’ to get a DHP.
    Added to some Councils, putting conditions attached to DHP renewals.
    Such as, it may not be able to be reapplied for, unless you are actively looking to move.
    Which, amounts to, ‘blackmail’.
    Just maybe, IF this Judge knew all this, beforehand, there may have been a different outcome??

    • To be honest, I doubt it. The main issue is that there was no breach of Article 8. The Court doubts that there would necessarily be a breach of article 8 even if there was no DHP AND the Claimants had had to move to smaller properties, without the bedroom for the child.

      No breach means no issue for the regulations.

  2. Can DHP become the argument for taking all these cases further?? Its not guaranteed NOW and cannot possibly be beyond the next election. Just a thought. I hope people persevere and fight as long as they can to wherever the legal system takes them.

  3. Freudian slip? Or an accurate description of the bedroom tax as
    “the two bedroom deception on a three bedroom property.” ?

  4. The continuing situation regarding both the ‘Bedroom Tax’ and Housing Benefit reduction, and DHP ( a very temporary and arbitrary support,) are creating more and more hardship and social exclusion to 1,000’s of families and single/couples struggling to maintain a home/normality/family life/stability.
    I recently acted as advisor for a widowed pensioner.Following the death of her husband last year, she could not afford to meet their rent in their very small, private rented flat in W.London and was advised to find ‘cheaper’ accommodation elsewhere. Having exhausted options such as house-sharing ( too old!), relocating to a son in Australia ( not feasible,) and being confined to a very substandard bedsit in E.London, she decided to relocate to her Staffordshire birthplace.
    She found a small two bedroomed flat at an affordable rent, a job in a local school as a Teaching Assistant, and moved in.
    3 months after relocating she was made refundant.At 65 she was in receipt of her State Pension (£145 per week.) As that was her only income after losing her job, she was forced to apply for Housing Benefit/Council Tax Benefit.With the monthly rent of £690 ( standard for the area), but HB capped at £336 and only payable for a 1 bedroomed property, she was forced to apply for DHP. For six months these two Benefits totalled £536 per month, the deficit being paid from her State Benefit. This left her with a little more than £60 a week to live on for food, utility bills, tv licence, insurance, laundry/toiletries etc.
    After six months of DHP her claim was discontinued. She was advised to seek employment or to find cheaper accommodation or both.
    Living on less than £18 a week, meeting the rent from her State Pension and Housing Benefit, she sold anything she had of any value to make ends meet, including her wedding rings, engagement ring, tv and furniture. She registered with the local Housing Authority for 1-bedroomed accommodation. She received a weekly ‘Bidding List’ and was allowed to bid for one property each week. So far ( after 6 months) she has not been successful in her bid. Reasons given by the HA include her possibility of finding employment, she is not homeless, she is not in arrears of rent, she has no dependents etc. Therefore, she is not likely to be considered a priority for either DHP or HA properties.
    Her grandson (23) is currently being processed for a Medical Discharge from the British Army serving in Afghanistan. He will be receiving treatment in Kingston, Greater London, with hostel accommodation. His grandmother suggested that after treatment he might do well by visiting her regularly to aid his recovery from PTSD. He had lived with the woman and her husband from age 11 – 17 before joining the Army, preferring not to emigrate with his parents to Australia. Discussing this with the Benefits Section she was warned that should her grandson stay for any period of time longer than a ‘normal holiday stay’, she would lose her HB/CTB and her place on the HA waiting list!!!! This was defined as ‘a change in circumstances which would alter the status of all claims to Benefits.’
    The Bedroom Tax is forcing families to be isolated and the problems; psychological, social, financial and physical, are producing a huge dissatisfaction, social unrest and dislocation, mental health problems that will in a short time overwhelm the NHS system, and a general feeling if disenfranchisement and hopelessness.
    The last communication I received 2 months ago from the woman in question was a note saying she was at long last resigned to her fate and preferred to be with her husband.She took her own life last week, alone in her rented property.Ironic that the local Housing Authority confirmed that she had ‘no arrears of rent.!’
    I fear many more such stories given the pressures and the totalitarian state that Bedroom Tax and DHP ( one fixed/capped, the other temporary/limited inflict on 1,000’s of ordinary people whose circumstances suddenly alter due to factors beyond their control. People NEED space to allow them to have a friend or family member or Carer to stay! That’s surely covered by Article 8? The right to a normal, family life.
    Martha Tryers

    • OMG Martha, I am so, so sorry to hear of this poor ladies circumstances.
      The utter desperation she must have felt. and the stress and distress she must have been in to take such a decision.
      The DHP, SHOULD have continued to be paid, as she was actively, ‘looking to move’. Which, in its ‘self, amounts to blackmail. And, many, many councils are ‘adopting ‘ this approach.
      No right of appeal. only a reconsideration available. or, the lengthy, possible judicial review.
      Was she told, she could appeal? I very much doubt it.
      18 months on from the BT introduction, many, many people have no idea they even can appeal. and, just struggle to pay it.
      Was she told she may be able to find a mutual swap?
      What about the expense of moving from London? And, the cost of moving yet again? Where is that cost, supposed to come from??
      Living on £18 a week. She probably couldn’t afford to eat or heat her home.
      Every single aspect of this, screams at you, that it SHOULD be, against anyone’s basic human rights.
      so, WHY is this allowed to happen?
      When, will this government be accountable?

      There have been other deaths due to this barbaric policy.
      And, I don’t doubt, there will be more.
      xxx

    • The woman should have been exempt from Bedroom Tax anyway- it does not apply to pensioners.

    • Martha – A very sad story. But I’m afraid the answer to your question on Art 8 is probably no. From Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406:

      We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that Article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage Article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, Article 8 may require the provision of welfare support in a manner which enables family life to continue. Thus, in J v The London Borough of Enfield [2002] EWHC Admin 735, where the claimant was homeless and faced separation from her child, it was common ground that, if this occurred, Article 8(1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the claimants’ home in Bernard and we consider that it was open to Sullivan J to find that Article 8 was infringed on the facts of that case.

      (Art 3 is torture, inhuman or degrading treatment). So, there is no human right to have the space to have people to stay, or to a ‘normal family life’. The interference with family life has to be severe enough to approach inhuman or degrading treatment . The clearest example would be taking a homeless woman’s children into care while refusing to offer her any support.

  5. The Bedroom Tax must be stopped. If it isn’t it means the end of UK human rights and holocaust in UK

  6. This decision is not surprising. On Public Policy grounds alone I cannot see any Government allowing a situation where children of separated families should have a right to two homes; their view is likely to be that whilst harsh for the children it is the parents’ responsibility to consider the children before separating (except where there is DV of course). The Tory Government in particular believes that families should marry and stick together for the sake of the children and all their socially engineered policies on tax and this one seem to bear that out. Playing Devils Advocate here, is it a coincidence that the housing shortage in the last 30-40 years has tracked the rise in relationship breakdowns? Bedroom Tax as Social engineering? I think so.

  7. Yes I know it was a High Court decision- but they appear to have acknowledged the Government’s ‘legitimate aim’ in failing to strike down the legislation and its effect on the separated family.

    • What the court means by ‘legitimate aim’ is not that it approves of policy. Just that there is a purpose to the policy which is not irrational, so ‘legitimate aim’ for the purposes of Art 8(2).

  8. By the time we get our UT the election will be almost there and who can guarantee DHP in new parliament. How can they expect us to go on with justified discrimination and no human rights?

  9. If we gotta face another hearing i’ll be making it clear in no uncertain terms that our lives wont be worth living if we gotta live with justidied disability discrimination and human rights violations

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