Assorted bedroom tax related items, while we wait for the Supreme Court to hear MA & Ors…

In case number CH_2391_2015, the Upper Tribunal has ruled that an annual re-rating of housing benefit entitlement is a fresh decision each time, capable of being appealed. In this case, an appeal of a bedroom tax deduction in respect of the March 2014 award should go ahead, the FTT having wrongly decided that the bedroom tax deduction decision was made in the March 2013 award and simply rolled over in March 2014. A copy of the decision is here.

In Secretary of State v MS and Inverclyde Council (Housing and council tax benefits : payments that are eligible for HB) [2014] UKUT 465 (AAC) the Upper Tribunal overturned an FTT decision reversing the imposition of a 14% bedroom tax. A couple living in a two bedroom adapted property where unable to share a bedroom by reason of one of them being disabled and the other acting as overnight carer. The FTT had found this was incompatible with Article 14 and re-read the regulations as follows:

In terms of section 3(1) of the Human Rights Act 1998 regulation B13(5)(a) of the Housing Benefit regulations 2006 can and should be read as follows: “(a) a couple (within the meaning of Part 7 of the Act) (or one member of a couple who cannot share a bedroom because of severe disability).”  Not to so read it would be incompatible with the appellant’s rights under Article 14 of the European Convention of Human Rights read with Article 1 of the First Protocol of the European Convention of Human Rights.

The Upper Tribunal allowed the DWP appeal, following MA & Ors in the Court of Appeal. (NB, at the relevant time, the couple had been refused a DHP award). While this was a Scottish Tribunal:

As a decision of the Court of Appeal in England and Wales it is not technically binding on me when sitting as a Judge of the Upper Tribunal in Scotland.  However, as I held in paragraph 13(a) of RJ v Secretary of State for Work and Pensions [2012] AACR 28, I would in that role ordinarily expect to follow a decision of the Court of Appeal if it was on a point indistinguishable from one arising before me.  In other words I would follow such a decision unless it was in my view clearly wrong.  I consider that this approach applies both to decisions of the Court of Appeal on judicial review applications as well as those taken under sections 13 – 14 of the Tribunals, Courts and Enforcement Act 2007. It has, of course, no application if the decision of the Court of Appeal relates to a point of law peculiar to England and Wales.  I do not consider that the decision in MA was plainly wrong.  I thus follow it. 

As we’ve repeatedly noted, FTT decisions that went against the decision in MA & Ors on Art 14 discrimination were going to be in trouble at Upper Tribunal. So it is proving to be.

On the last day of the parliamentary term, the DWP sneaked out a remarkable report, comissioned by the DWP, into the effect of the bedroom tax in the first two years or so. The headlines are perhaps unsurprising, but a very stark. There has been very little downsizing, with many unable to downsize. Only 23% of those affected received DHPs at all. 76% had cut back on food, 46% on energy. While 20% were looking for work, or more work, only 5% found work, and only 2% ceased to be subject to the bedroom tax as a result. 0.3% of those affected took in a lodger. 78% of those affected said they would run out of money by the end of the week/month.

In short, the bedroom tax pretty conclusively failed to achieve any of the policy aims originally given for it, but has caused widespread hardship. And that is official, from the DWP.