With thanks to Joe Halewood, comes news of this very interesting First Tier Tribunal bedroom tax appeal.
In MR v North Tyneside Council and Secretary of State for Work and Pensions (Housing and council tax benefits : other)  UKUT 34 (AAC) [Our report], we saw the Upper Tribunal accept the DWP argument on the position of ‘shared care’ families for bedroom tax purposes. In short, the child’s only ‘home’ was with the person receiving child benefit. It may yet turn out to be significant that that decision was not the result of an argued hearing, only the DWP turning up.
In a Middlesborough FTT decision, Judge A N Moss has declined to be bound by that UT decision, on the basis that it is founded on an error in law. The full decision can be downloaded here, and is well worth reading, but in short, the argument set out by the Judge is as follows.
Reg B13(5) sets out a list of other occupants of the property who will be regarded as requiring a bedroom, so long as they occupy the property as their home. This includes, for example, ‘a person who is not a child’. This might be a lodger, who is in no way part of the Claimant’s family, or indeed ‘household’. So, for the list, it is clear that the definition of ‘home’ arrived at in MR does not universally apply.
As Reg B13(5) adds no qualification to any of the categories as (a) to (e) there is no reason to import a definition of ‘home’ via a definition of ‘household’ elsewhere in the HB Regulations (In MR, this was via Reg 7(1)(a), Section 137(1)(c) of the Social Security Contributions and Benefits Act 1992 and finally Reg 20(2)(a).). Reg B13 makes no reference to household in itself.
The only statutory test, the FTT finds, is ‘occupying the property as his home’. Home being defined as an ordinary english word. And it was perfectly possible for a child in a shared care situation to have two homes.
The FTT throws in Art 8 in support of the ‘two homes’ view, but this is almost an afterthought, and the FTT does not grapple with the serious Art 8 questions raised in Cotton & Ors in the High Court [report here].
This decision is very interesting, not least because this FTT has taken the UT decision head on, on an issue of law. And I think the Judge has identified a genuine contradiction in the HB regulations.
For a child living (for significant, repeated periods of time) with a parent, that residence would, under HB regulations in general, fall to be decided on the basis of whether that child was a member of the parent’s household. And, as per Reg 20(2)(a), there can only be one ‘household’ for HB purposes.
However, B13(5) does not draw any distinction between those to be considered as a member of the Claimant’s household and those who aren’t, let alone those who are a member of the Claimant’s family and those who aren’t. As the FTT identifies, the sole test is whether these additional persons are ‘occupying the property as their home’. Without an express distinction, there is indeed arguably no basis to find that Reg B13(5) was supposed to have such differences in application, depending whether the child occupying the property as their home was a family member, or member of the household, or not.
I presume this one will be heading to the Upper Tribunal. And this time, it should be a serious argument on the application of Reg B13 to the bedroom needs of ‘shared care’ parents.
[Update. Detailed analysis of the position on shared care and the Housing Benefit regulations, including this case, by Peter Barker – @HBAnorak – is here. He identifies a number of problems with this decision.]