Two bedroom tax related decisions – the first of which is a decision of widespread import on the powers (or lack thereof) of the First Tier Tribunal.
The Secretary of State for Work And Pensions v Carmichael & Anor (2018) EWCA Civ 548
The was the SoS appeal to the Court of Appeal of an Upper Tribunal decision (our note here). In deciding Mr Carmichael’s bedroom tax appeal, the Upper Tribunal had rather sensationally held that, in a situation where applying the regulations would lead to a breach of human rights (here Art 14 discrimination, as found by the Supreme Court), and the First Tier Tribunal did not have the power to make a declaration of incompatibility, (which it doesn’t), the Tribunal should ‘not give effect’ to the Regulations. The appeal by the SoS was inevitable.
The Court of Appeal upheld the appeal. The Upper Tribunal had no power to disapply the regulations. As the UT had noted, the ‘reading in’ of additional words to the Regulations that had been carried out by the FTT in this case went impermissibly far beyond ‘interpretation in accordance with’ the Human Rights Act, but refusing to give effect to the regulations was equally no open to the FTT or the UT.
It follows that I consider that the Upper Tribunal decision exceeded what was permissible and should have limited itself to determining that Regulation B13 as it stood was incompatible with Convention rights and that to the extent that the first respondent had suffered any loss as a consequence, his remedy lay in bringing a claim for damages in the civil courts under section 8(2) of the Human Rights Act. The answer to the conclusion of the Upper Tribunal that this would render any remedy for violation of Convention rights ineffective or illusory is the twofold one which Mr Eadie QC gave: (i) that is clearly what Parliament intended by providing that the remedy of damages under section 8(2) could only be awarded by a court and the executive has not chosen to expand the powers of tribunals under section 7(11) to enable them to award damages; and (ii) in the present case, because the first respondent had received DHPs to make up the shortfall in housing benefit, he would not appear to have suffered any loss as a consequence of the violation which would sound in damages under section 8(2). Whilst as the Supreme Court held in Carmichael, that is not an answer to whether or not there was a violation, it seems to me that it is an answer to whether or not the first respondent requires a remedy beyond a declaration that Regulation B13 as originally enacted was incompatible with his Convention rights. He does not, in marked contrast to Mr Mathieson.
So, where the FTT finds that application of the Regulations would result in a breach of the claimant’s human rights, it can do nothing but apply the regulations. The Upper Tribunal has the power to made a declaration of incompatibility, but that also does not stop the Regulations applying. The only recourse for the claimant would be a claim for damages in the civil courts under s.8(2) Human Rights Act 1998.
In reaching this conclusion, the Court of Appeal distinguished a Supreme Court decision, Mathieson v Secretary of State for Work and Pensions (2015) UKSC 47, where a remedy of ‘disapplying’ DLA regulations had been used. Mathieson was held to be a ‘one off’ and that “their Lordships do not appear to have considered any constitutional implications of the remedy they adopted”. As I strongly suspect that this case will be headed for the Supreme Court, it will be interesting to see the Supreme Court’s view on that.
The second case is the latest Upper Tribunal decision on the vexed ‘room size’ issue in M v Secretary of State for Work & Pensions (2017) UKUT 443 (AAC). The room in issue was some 43 square feet. There was, as found by the FTT, room for a single bed and a chest of drawers beside it, doubling as a beside table.
The claimant appealed. The argument was that the Upper Tribunal in Stevenage B.C. v ML (2016) UKUT 0164 had stated “the room should be capable of accommodating a single adult bed, a bedside table and somewhere to store clothes”, with reference to paragraph 33 of SSWP v Nelson (2014) UKUT 525 (AAC) (our note).
The claimant appellant also
relied on the ‘LACORS’ guidance about the furniture that should be capable of being contained in a bedroom (‘LACORS’ means Local Authorities Coordinators of Regulatory Services). The guidance refers to a single bed, a bedside table, a chest of drawers, a single wardrobe, a table and a chair or stool. The dimensions of those items of furniture are specified in the guidance and it also refers to “bed-making space”, and on the HHSRS rating system.
The Upper Tribunal held:
Paragraph 33 of Nelson was not a list of necessary items, but of necessary functionalities. Somewhere to put water beside the bed did not necessitate a separate bedside table if a chest of drawers could also serve that purpose.
the First-tier Tribunal did not err in law in holding that a room does not, as a general rule, have to be able to accommodate a bedside table and separate clothes storage furniture in order to be a bedroom for the purposes of the UC Regulations 2003.
I accept that the decisions in Stevenage and CH/454/2015 might be read as requiring a bedroom to be capable of accommodating a separate bedside table and clothes storage furniture. However, no such requirement can be found in paragraph 33 of the Upper Tribunal’s decision in Nelson and, if the decisions are in conflict, I should normally follow Nelson since it was a decision of a three-judge panel of the Upper Tribunal. I agree with the reasoning in paragraph 33 of Nelson and follow it.
On the relevance of the HHSRS – HHSRS hazards were a matter of the professional judgment of EHOs and not for the FTT to assess. There was no specified room sizes under the HHSRS.
On the LACORS guidance:
The LACORS guidance is not statutory guidance. It is not binding on anyone let alone the First-tier Tribunal in deciding whether a room is a bedroom for under-occupancy purposes. The present case did not raise any complicated issue of environmental health (e.g. as to adequacy of ventilation). The issue was simply whether the disputed room possessed certain of the essential characteristics of a bedroom identified in Nelson – clothes storage and availability of a flat surface. The LACORS guidance could not possibly have had a bearing on those questions. The First-tier Tribunal correctly declined to take it into account.
The UT also disposed of the relevance of the Part X Housing Act 1985 room sizes (again) – they did not present a minimum bedroom size. However,
Once floor areas are known, it is relatively straightforward to work out the family unit or units that may sleep in a dwelling without contravening the Housing Act 1985’s space or room standard. That has been done by Miss Knox for her client Miss M’s dwelling and, on her workings, the dwelling could accommodate 5 persons. Clearly, therefore, she cannot argue that Miss M’s landlord would be unable to re-let the dwelling to a larger family unit without breaching the overcrowding provisions of Part X of the Housing Act 1985. Had she been able to do so, I may well have accepted that the disputed room should not be categorised as a bedroom because that would not serve the underlying purpose of the under-occupancy provisions.
Now that is a potential line of argument, but given the overall operation of the calculation of statutory overcrowding scheme in Part X, it is one that would come up vanishingly rarely.
It is a measure of the continued ridiculousness of the bedroom tax regulations that here we had counsel for the DWP arguing over the potential height and placement of a chest of drawers. I said at the beginning that the DWP failure to define what amounted to a bedroom for the regulations would take us down a rabbit hole, and, via elephants, radiator placements, and outward opening doors, we certainly have fallen a long way.