www.buckles-law.co.uk The issues Since 1 April 2013-a 14% or 25% - - PowerPoint PPT Presentation

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The great bedroom tax Debacle-an update

February 2014 Gail Sykes Partner T: 01733 888794 E: gail.sykes@buckles-law.co.uk

Legally focused, relationship driven

The issues

 Since 1 April 2013-a 14% or 25% reduction in HB where one or two or more bedrooms respectively are surplus to defined requirements  Rigid rules-who can share etc  But no definition of a “bedroom” for social sector size criteria purposes  A blunt instrument applied to working age claimants irrespective

• f individual circumstances (the armed forces exemption an

exception)

Legally focused, relationship driven

DWP Circular HB U1 2014

 Drafting issues identified-those who have been continuously entitled to HB since at least 1 January 1996 and have occupied the same dwelling since that date affected  LA’s to identify those affected and revise existing decisions to remove the reduction in HB from 1 April until legislation is amended  Amendment expected March 2014  5000 affected? 40,000 affected? Anyone evicted already?

Legally focused, relationship driven

The Benefit Cap & Housing Benefit

 The Benefit cap administered by reducing HB since 15 April 2013 (pending the introduction of Universal credit)  R(JS and Others) v Secretary of State for Work and Pensions [2013]  Three single parent families- experiencing significant reductions in HB. Human rights challenge-(Art 14, Art8 and Art 1 of the First Protocol)  High Court dismissed the challenge, the scheme was not “manifestly without reasonable foundation” or irrational  Appeal to the Court of Appeal

Legally focused, relationship driven

Burnip v Birmingham CC, Trengrove Walsall MBC & Gorry v Wiltshire Council [2012]

 Local Housing Allowance Cases – Mr Burnip and Ms Trengrove were disabled and needed an overnight carers, Mr Gorry’s two disabled daughters were unable to share a bedroom  Rigid rules-who can share/ how many bedrooms  Discriminatory under Art 14 of the European Convention? Any

• bjective and reasonable justification the discrimination?

 By the time of the hearing in the Court of Appeal Government had acted to ensure that bedrooms needed for carers could be taken into account. Mr Gorry’s position was unresolved.

Legally focused, relationship driven

Burnip v Birmingham CC, Trengrove Walsall MBC & Gorry v Wiltshire Council [2012]

 The Court found unlawful discrimination contrary to Art14  For which there was no justification  DHP payments were not an adequate response  By the time of the hearing the Government had acted to ensure that bedrooms needed for carers could be taken into account. Mr Gorry’s position was unresolved  March 2013 the Government issued guidance (Circular HB/CTB U2/2013 to be considered in cases similar to that of Mr Gorry

Legally focused, relationship driven

R(on the application of MA & Others) v Secretary of State for Work and Pensions [2013]

 In the High Court-Art 14 and breach of Public Sector Equality Duty challenge  A disparate group of ten families whose members included disabled adults and disabled and abused children  The problem identifying a group who were suffering the discrimination did not mean that SSSC could not be discriminatory  The question was whether the policy was manifestly without reasonable foundation and/ or proportionate

Legally focused, relationship driven

R(on the application of MA & Others) v Secretary of State for Work and Pensions [2013]

 The Public sector Equality Duty required a due regard to the need to achieve the goals identified in s149 Equality Act 2010. The duty did not require a particular result  The provision of DHP was not a disproportionate approach to the problems faced by people with disabilities  The Circular published post -Gorry was not a lawful means of prescribing the calculation of HB for cases of that kind- Regulations were required-The Court was unimpressed-New regulations in force from 4 December 2013

Legally focused, relationship driven

R(on the application of MA & Others) v Secretary of State for Work and Pensions [2013]

 Appeal in the Court of Appeal in late January  Result awaited!

Legally focused, relationship driven

Turbulence in the First Tier Tribunal

 The Fife Cases

• Existing use-A lounge? Dining room? Or just a “horrible

dark space”?(Harrower-Gray)

• Room too small to be defined as a bedroom (under 70sq ft)

using the criteria for over-occupation in the Housing Act (Scotland) 1987 (Nelson plus 2 further cases)

• DWP to appeal- “space standards do not relate to the

Removal of the Spare Room Subsidy, nor should a dining or living room be classified as a bedroom notwithstanding that the relevant Housing Act provisions would class them as such”.

Legally focused, relationship driven

Turbulence in the First Tier Tribunal

 Westminster and Lall

• A blind lawyer using a second bedroom to keep equipment

related to his disability

• Bedroom reclassified by the landlord before the FTT hearing
• FTT finding- “The room in question was never intended to be a

bedroom, and has never been used as a bedroom. It contains equipment necessary for the appellant to try to overcome his disability”.

• Some misreporting in the press

Legally focused, relationship driven

Turbulence in the First Tier Tribunal

 Glasgow- the Regulations when applied to a “severely disabled” woman who could not share a bedroom with her partner amounted to an unjustified breach of Art 14, read with Art 1 Protocol 1.  Redcar- A disabled woman and her husband required a bedroom

• each. The Local Authority had not taken into consideration her

disabilities and her “reasonable requirements”, as a result of the disabilities, to sleep in a bedroom of her own.

Legally focused, relationship driven

Turbulence in the First Tier Tribunal

 Islington- Decided in favour of the applicant taking into account the use of room (storage) and the size of the room - 42 sq ft. Also disabled adult child who was in care, but came to stay two nights a week was 'occupant' for assessment purposes as the property was found to be his 'home'  Liverpool- Disabled mother living with an adult daughter with

• autism. 3 bedroom property. The third bedroom was used twice a

week by the younger sister staying overnight to provide care for the elder daughter. FTT found an unjustifiable discrimination under Art 14

Legally focused, relationship driven

Turbulence in the First Tier Tribunal

 Rochdale- A room historically used as a dining room and not a second bedroom by a sole occupier was not a bedroom  Middlesborough-Mother with two sons in the army. Both lived in barracks and were not on operations . FTT upheld appeal against finding that the barracks was the sons’ main home.  Inverness – A father was refused a second bedroom for three children who stayed at weekends under access arrangements as the property was not the ‘main home’ of children. (Cohen/ Liberty Judicial review challenge)

Legally focused, relationship driven

So where are we now?

 Islington- Decided in favour of the applicant taking into account the use of room (storage) and the size of the room - 42 sq ft. Also disabled adult child who was in care, but came to stay two nights a week was 'occupant' for assessment purposes as the property was found to be his 'home'  Liverpool- Disabled mother living with an adult daughter with

• autism. 3 bedroom property. The third bedroom was used twice a

week by the younger sister staying overnight to provide care for the elder daughter. FTT found an unjustifiable discrimination under Art 14

Legally focused, relationship driven

An Upper Tribunal Case Local Housing Allowance case but binding on the FTT. A bedroom is “a room containing a bed/a room used for sleeping” The UT seemed to accept the current use of a room (in this case the lounge) as a bedroom

Thank you

February 2014

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