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Successful Bedroom Tax appeal (First-tier Tribunal)!

disgustedofbridport
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Dorchester CAB

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Joined: 20 October 2010

Mr. C was hit with the bedroom tax in April 2013, as he lives in a 3-bedroom house that has had thousands spent on it widening the drive, dropping the kerb, putting in new ramps, putting in a stairlift and adapting the bathroom.

His wife is physically disabled (higher-rate mob and middle-rate care DLA) and his 15-year old son has autism and goes to a special school (lower-rate mob and highest-rate care DLA). Mr. C is carer for both of them. The council basically admit that Mr. C does need a third bedroom in order to be able to carry out his caring duties, and the local MP wrote a letter to West Dorset DC to help him get his current 3-bedroom house. West Dorset have said that they have no discretion to NOT apply the bedroom tax and continued to pay only 86% of HB. Mr. C was turned down for a Discretionary Housing Payment because the council said that unless he and his family accounted for every penny of what they spend their DLA on, they would be deemed to have spare income enough to pay the remaining 14% of their rent.

> We had the Burnip, Trengrove and Gorry Court of Appeal decision which said where disabled children couldn’t share a room, there should be no bedroom tax. We all cheered.
> Then came the MA Court of Appeal case which said where adults can’t share a room because of disability like Mr. C and his wife the bedroom tax was NOT disability discrimination. Oh dear.
> Then came the Rutherford High Court decision which said that where adults have to have separate rooms to care for a disabled child (also the case for Mr. C) the bedroom tax was again NOT disability discrimination. Oh dear again.

With help, I prepared the following argument for the tribunal:
1. Everyone seemed to agree that Mr C needs a 3rd bedroom
2. MA and Rutherford said the bedroom tax wasn’t discrimination because of the availability of DHPs.
3. Mr. C was refused a DHP
4. Mr. C was refused a DHP because of his family’s DLA income. Paragraph 45 of the Burnip case says very clearly that DLA is not to be considered spare income to be used for housing costs.

Putting these all together, we said: Mr. C is suffering disability discrimination because MA/Rutherford said the offset to the discrimination that the bedroom tax would otherwise represent was a DHP. Mr. C could not get a DHP because the council were - contrary to a Court of Appeal decision - using DLA as spare income. Therefore the discrimination against him was not offset.

I think the thing to do in a similar case is to make sure there is a DHP application. If not, submit a DHP application putting DLA as “care costs” under “expenditure”, and then wait for a “no” from the council (or a demand to account for what the DLA is spent on). Then you have your argument made.

(Burnip Court of Appeal case available at: http://www.cpag.org.uk/sites/default/files/burnip5appxx.doc
See paragraph 45 for comments on DLA as spare income.

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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The significance of Rutherford, with similar-ish facts to your case, us that the Secretary of State was only able to rely on the DHP defence because the applicant had one and was lilely to keep it for the foreseeable future, whereas in MA the defence was that the availablity of DHPs generally was justification for the policy generally.

That leaves it open to you to argue that the absence of a DHP in this particular case removes the justification for the scheme not allowing an extra bedroom in these particular circumstances.

You still need a remedy.  Some FtTs have been content to “read in” extra words into the size criteria at the point where they mention couples.

Ruth Knox
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Vauxhall Law Centre

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Congratulations.  This was a really well thought out argument and obviously convincing to the judge.  I think this case should be put up on the Nearly Legal site as it is another precedent. (Well FTT decisions are not case law, so it’s not a precedent that has to be followed but it is still significant.)  If you are not sure how to do this, just email Nearly Legal (.(JavaScript must be enabled to view this email address)) attaching a copy of the decision notice (with the Statement of reasons if you have it).  Ruth

Daphne
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Successful FtT bedroom tax decision reported by nearlylegal where disabled couple who needed a room each had bedroom tax applied and although dhps were granted they were being pressurised to move and told that dhp was only short-term - therefore dhp not enough to remedy -

http://nearlylegal.co.uk/blog/2014/08/dhp-enough-remedy/