Monday, 7 October 2013

Bedroom Tax - further update, and story so far...

There has been two more interesting first tier tribunal decisions on the Bedroom Tax. Both are supportive of the tenants in question, although I have some problems with one of the cases.

Case 1

Again it's in Scotland, and again the claimant has been helped by Govan Law Centre.

In this case[1] the claimant has multiple sclerosis, and needs a specially adapted bed and bedside equipment. The judge accepted the argument that her husband needed a separate bedroom because of this, and ruled that the bedroom tax should not be applied in this case.

Judge Lyndy Boyd made this decision on human rights grounds. She found that applying the bedroom tax to the claimant and her husband would violate their right to peaceful enjoyment of possessions and the right not to be deprived of them (Article 1 of the First Protocol) in the context of the prohibition of discrimination (Article 14).

Again, this, as a first tier tribunal decision, does not set a legal precedent, but it is still likely to be taken into account when other judges decide similar cases.

It is very important here to appreciate that the cases considered thus far fall into two categories:

  1. Cases where what matters is whether a room is a bedroom or not for the purposes of the bedroom tax (is it too small, is it being used for other purposes, etc?)
  2. Cases where it is argued that applying the bedroom tax would be in breach of someone's human rights.
This recent case is important because it is the first one in which the Human Rights Act has been successfully applied to an adult.

Case 2

In this case[2][3] the claimant lives in Redcar with her partner. Because of her disability she and her husband sleep in separate rooms, and store various disability related equipment in a third room. Because of this they were hit with a 25% cut in their maximum Housing Benefit on the basis that they only needed one room but actually had three.

The judge allowed the appeal in part, reducing the cut from 25% to 14%, ruling that the couple 'reasonably require one bedroom each': the cut was not reduced to zero because the judge did not agree that the third room needed to be use to store equipment as it could be kept elsewhere.

In the decision  notice the judge states that 'the local authority have not taken into consideration her disability and her reasonable sleep in a bedroom on her own.'

I have real problems with this decision. Although it is clearly a good decision morally, the judge's reasoning is, in my opinion, flawed. There is no scope in the Housing Benefit (Amendment) Regulations 2012[4] for a local authority to exercise any discretion with regard to reasonableness, or indeed to anything else. The rules require that a the decision maker 'must determine a limited rent' [italics mine] in accordance with the formula specified, which in turn specifies that a couple are only entitled to one bedroom. The only scope for employing 'reasonableness', in fact, is a paragraph which allows the local authority to reduce the rent to a lower figure than the limited rent imposed by the bedroom tax if the authority thinks it reasonable.

I think that the judge would have been wiser to allow the appeal explicitly on the human rights argument as per Case 1.

I would be happy to be proved wrong if anyone disagrees with me!

The story so far...

Let's recap:
  • May 2012 - Court of Appeal rules against the government with respect to disabled children (human rights)
  • July 2013 -
    •  High Court ruled against disabled adult claimants (human rights)
    • High Court rules in favour of disabled child claimants, and criticised the government for not acting on previous Court of Appeal decision.
  • Early September 2013 - 1st Tier Tribunal (Scotland) ruled in favour of a number of claimants (definition of bedroom)
  • Late September 2013 - 1st Tier Tribunal (England) ruled in favour of claimant (definition of bedroom)
  • Early October 2013 
    • 1st Tier Tribunal (Scotland) ruled in favour of adult disabled claimant (human rights)
    • 1st Tier Tribunal (England) ruled in favour of adult disabled claimant (reasonableness).
(As the Bedroom Tax applies equally to England/Wales and Scotland decisions made in one jurisdiction are equally applicable in the other.)

As I've said previously, as the parties that have lost appeals to claimants are local authorities, not central government, and it's not particularly in their interests to challenge the recent decisions, they are unlikely to get tested in higher courts, which is good news for the particular claimants involved but annoying for everyone else because we would like to see formal precedent out of all this. In particular, if (admittedly it's a big 'if') the Higher Court or above were to rule in favour of a claimant because of the human rights argument, the judge would have the power to make a 'declaration of incompatibility' to say that the law was in breach of the Human Rights Act. This would put the government in a very uncomfortable position.

But then the Conservative Party wants the UK to withdraw from the European Convention of Human Rights...



1 comment:

  1. Hi Giles. More good stuff. There was an interesting article about Bedroom Tax in the Times of all places at the weekend by Caitlin Moran.