The Upper Tribunal has another go at the separated families issue in CH 0062 2015-00 and this time, unsurprisingly, shuts down completely the FTT dissenting position in a Middlesborough FTT decision, while upholding and amplifying MR v North Tyneside.
In this appeal tribunal, the appellant was represented, which was a problem in MR. But short, the UT found that the FTT in this case was wrong to uphold a ‘separated family’ appeal on the basis that Reg B13 was not affected by the decision in R v Housing Benefit Review Board for Swale Borough Council, ex party Marchant.
The judge went wrong in law by failing to interpret the Regulations as a whole. He is right that they are split into Parts. That is a matter of convenience and structure. It can be relevant to interpretation. But I can see nothing in the structure of the Regulations as a whole or in the content of individual regulations to justify interpreting regulation B13 on its own and in isolation from the basic concepts that apply to all other provisions. I remain of the view that I expressed in MR. That decision is binding on the First-tier Tribunal and local authorities. Marchant cannot be distinguished simply on account of the layout of the legislation. The chance of the layout did not affect the reasoning of the Court of Appeal, which is directly in point.
It would be permissible to rely on that rather tenuous distinction if it were necessary in order to comply with the interpretative duty under section 3 of the Human Rights Act 1998, but it is not. I accept the Secretary of State’s argument that the trend of the Convention caselaw is that Article 8 does not impose a duty to confer a social security benefit except in the most exceptional circumstances. Cotton is an authority for that proposition. I emphasise that there is no evidence to suggest that the family relationship between the grandson and his grandparents, or even between the grandson and his mother, would cease or suffer irreparable harm if the grandson were not able to spend part of his time with his grandparents.
As to Gorry, this was distinguished in MA, as different policy considerations were in operation in respect of the social sector duty under regulation B13. As to MA, the claimant’s difficult is in showing that he is a victim for the purposes of section 7(1) of the Human Rights Act 1998. As the information now available shows, the claimant is potentially entitled to a discretionary housing payment when his circumstances justify one being made and he has at times received a payment. That ensures protection that the courts have recognised as important, although perhaps not necessarily decisive, throughout the various challenges to regulation B13. In those circumstances, I do not consider it appropriate to stay this case to await the decision of the Supreme Court.
Pending any further decision of a higher court, that is pretty much that for separated family bedroom tax challenges in the FTT. The Middlesborough FTT decision was, as we thought at the time, apparently made per incuriam, as it did not address the whole Marchant case law.