A home without a household

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) [2015] 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.]

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 .

9 Comments

  1. The Tribunal hasn’t just taken on MR head on, it has taken on a long line of case law dating back to Marchant. The problem in these shared custody cases is that not that the child doesn’t belong to the claimant’s family: as the Judge notes, this doesn’t stop lodgers from being included as occupiers. The problem is that the child DOES belong to someone else’s family.

    “Occupy” and cognate expressions must be considered in accordance with Reg 7: that is long-settled law. Except where Reg 7(6) says otherwise, a person may only occupy one dwelling. As to which dwelling that is, Reg 7 refers us to “family”, which in turn leads us to “household”, “responsible” and finally child benefit. You can only get past that obstacle if the person doesn’t belong to any family, which is where your single lodger comes in; but even then you can only occupy one dwelling, although the regs are less prescriptive about which one it is if you have no “family”.

    In short, “household” is not an aberrant alternative to “occupy” as the judge seems to think: it is a step on the way to identifying the home that the child occupies.

    • Thanks Peter. My sense was that the Marchant line was the difficulty, beyond the somewhat cursory summary provided in MR. But I still think there is a difficulty in B13(5) identified here, not least in the chain from ‘home’ to ‘family’ to ‘household’. Granted ‘occupy’ would be the difficult term to get around, and the FTT finds that to be undefined. Which is a problem.

  2. I did have a re-read of Marchant again today before putting out the post, though as Peter says it is Marchant and all that follows from that, the line from it that could be an issue.

    I also put some thought into “..OCCUPIES as the home” too and can see the same issues to some extent yet I have to agree this case is a serious argument and one that will get to UT, if only out of IDS’ stubbornness and zealotry.

    Two points I made in the post about (a) reg 7 in essence not covering this specific issue and limiting it to claimant and family and (b) the lengths Judge Moss goes to – as matters of found fact – that the child does reside / live in /occupy two homes, with the Tribunal service particularly keen of fact finding are I think significant.

    In short I am on balance getting this to the UT should be viewed as a good thing and a just outcome especially as the tenant in the Newcastle case did not turn up as no representation could be found – a sad and all too typical example – and no argument was therefore made for that individual case.

    Tenant shafted by original sham bedroom tax decision, finds the balls to fight it, wins, and then is shafted again as the system puts the lowly tenant alone up against the very deep legal pockets of the aforementioned stubborn zealot.

  3. Pingback: A home without a household – Nearly Legal | Current Awareness

  4. Pingback: An anatomy of a bedroom tax appeal » Housing » 24dash.com

  5. Pingback: HBNotes > HBInformation > How much HB > Bedroom Tax > Challenging a Bedroom Tax decision > Occupation of property

  6. However, wasn’t Marchant pre Human Rights Act. Arguably post 1998 cases may turn out differently as regulations should be read so as to be compatible with convention rights.

    I had a case, similar to this, where the judge accepted (unlike in Cotton) that article 8 was engaged, but infringement justified due to DHP. I know think this could give me grounds for appeal as, arguably, Tribunal should have avoided article 8 infringement by reading Regs so as to be compatible with claimant’s article 8 rights.

    • A few problems here – SSWP and London Borough of Richmond-Upon-Thames (HB) 2013 UKUT 642 AAC has already considered the regs post HRA and found Art 14 discrimination justified ( following Humphreys v The Commissioners for HMRC in the Supreme Court). It is not an Art 8 decision, but show the mountain that an Art 8 argument would have to climb.

      I think you would be on a hiding to nothing appealing your DHP decision. My money, I’m afraid, is on the Upper Tribunal reinforcing its finding in MR v North Tyneside, and reinforcing the UT finding in CSH 777 2013 on Article 8 and shared care. Your decision would seem to fall squarely under CSH 777 2013.

  7. Interesting case with relation to the above has just come to light.

    Briefly, a grandmother obtained a Family court order for her grandchildren back in 2007. The FtT very tersely says MR is correct and Moss is as wrong as can be and the SoR was extremely terse on that point.

    YET one of the 3 ‘children’ at the time of the FtT decision was 20 and hence not a child yet chose to still stay at Gran’s half of the week etc. As she was not a child whose ‘family’ does she belong to following the lines of argument above? The judge completely misses this point when he tersely says the crux is who is “responsible” for the children yet is oblivious to the fact that one of them is NOT a child!

    Thoughts?

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