Bedroom Tax appeal - help required

Looking for help and thoughts.

I represented a tenant at a first-tier tribunal in February to challenge the local authority’s decision that a tenant and his partner, both of whom have disabilities, should be subject to a 14% reduction in their HB.  We won and HB was paid for the period to date.  All good.

Then I received a letter from HMCTS asking for a further submission.  This was related to the most recent decision on MA and Others seeking reasons why our case was different.  Next I knew our decision had been changed.

I’ve asked for and received a statement of reasons but have to consider where to go from here.  The only possible points of law that I can see are that I’ve not had sight of the second submission made by the local authority so don’t have all the details of what information has been used to make the decision, and that the decision relies heavily on the tenant’s decision not to apply for a DHP - the SOR states that this is because ‘their understanding is that their income would exceed any eligibility’ which isn’t the reason we gave.

As we’re in Scotland, the likelihood is that he would receive a DHP if he applied and that’s become more certain because of the extra money being put into the pot by the Scottish Government.  The tenant hasn’t applied as he thinks it’ll affect charges for care but this might not be the case so I’m going to check that and if it doesn’t (because it’s discretionary income rather than an entitlement) I’m going to suggest he go for it.

So how to proceed…... 

Apply for DHP, hope the bedroom tax is scrapped before the discretionary money runs out?

Try for error in law on the basis of inaccuracies in the SOR and proceed on the basis that tenant and his partner are a more discrete group than was dealt with in MA and Others?

Something else?

All views welcome.

Mairi

For what it is worth, I’d do both…

Does this help?

http://www.rightsnet.org.uk/briefcase/summary/tribunal-has-no-power-to-revie-of-its-own-inititiative

Thanks both.  Your speedy replies are much appreciated.

Mairi

I think there is also an error in law in just following the MA and others decision, on the basis that in the Court of Appeal decision dealing with the Carmichael case, the question of justification of discrimination against the correct comparator was never addressed.  The Court of Appeal decision on MA and Others, after looking at the decision on discrimination against disabled people in general and coming to the conclusion it was justified, then considered the Carmichael case.  But for reasons I am not clear on, in the paragraphs considering this (I think around paragraph 79 but can’t remember) they considered whether it was justified to treat disabled adults less favourably than disabled children, and decided it was (children need more protection, not able to make decisions for themselves etc).  However, the discrimination claimed was disability not age and the question never addressed was whether it was correct to treat a couple whose disability(ies) made them unable to share a bedroom less favourably than a couple with no disabilities who had no difficulties in sharing a bedroom.  As MA and others never addressed it, the Tribunal cannot follow them. We have won one case at FTT on this issue and of course, the Carmichaels won their own on the same grounds. Ruth

Thanks Ruth.

We applied for and have been given permission to appeal to the UT because our ‘application raises several questions regarding the application of Housing Benefit Regulation B13 and its effects on this particular couple’.  (By the same judge who heard the appeal and changed the decision for those following a different thread.)