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Supreme Court hearing in bedroom tax cases begins today

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hbinfopeter
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Typical of DWP to rush this out….

“No immediate action needs to be taken by local authorities (LAs) following this judgment. The Court did not strike down the legislation underpinning the size criteria. As such LAs must continue to apply the rules when determining Housing Benefit claims as they did before today’s judgment and the judgment does not require any LA to re-assess the HB of existing claimants. LAs should continue to award DHPs to claimants who they consider require additional financial support”.


No need to look again at similar cases? Arguable…..

Ros White
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Hi hbinfopeter - was that in a bulletin or letter to LAs? Could you share it? thanks Ros

Stuart
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hi ros - in case hbinfopeter isn’t around - its from HB Bulletin U3/2016: Supreme Court judgment: MA and others, A and Rutherford

HB Anorak
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I had hoped that the decision would provide a bit more clarity on the nature of the remedy due to the successful parties, but it doesn’t. If it takes the form of increased HB then clearly there are implications for"look-alikes” and anti test case rules that can apply in an assortment of different ways. If the remedy sits outside HB, what implications does that have for others? No remedy, no anti test case rule, who knows? A declaration that Person 1’s human rights have been violated leaves it rather unclear how Persons 2-99 are affected. So maybe DWP has a point in its bulletin.

Ros White
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stuart - 09 November 2016 01:07 PM

hi ros - in case hbinfopeter isn’t around - its from HB Bulletin U3/2016: Supreme Court judgment: MA and others, A and Rutherford

cheers Stuart - very helpful!

1964
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Well done to Mike & co on this one! I can at least now write to our client to pass on the good news.

...Though on reading the DWP bulletin, I’m not really sure where it leaves the client, if anywhere. Still reliant on DHPs? Suppose we shall just have to wait.

[ Edited: 9 Nov 2016 at 06:15 pm by 1964 ]
Martin Williams
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It is notable that the DWP gave the opposite advice to LAs on applying the Gorry judgment- the facts were pretty similar (the Court had held that a claimant should have an extra bedroom included in HB despite fact regulations did not provide for this) and the advice was to apply that judgment resulting in an extra bedroom being awarded even though the regulations had not been amended.

See their memo at that time here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/226878/u2-2013.pdf

I would say your client should now get the extra bedroom directly as HB.

1964
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That’s what I’ve told my client. The appeal has been sitting at the UT for yonks (of course) and client has been recieving DHPs to cover the shortfall (so there would be no financial gain to client- just the peace of mind that would result from no longer having to reapply for DHPs every 3 months).

Paul_Treloar_AgeUK
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Giles Peaker aka Nearly Legal has written analysis of decision on his blog.

With and without foundation – Bedroom tax in Supreme Court

Nearlylegal
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Martin Williams - 10 November 2016 10:47 AM

It is notable that the DWP gave the opposite advice to LAs on applying the Gorry judgment- the facts were pretty similar (the Court had held that a claimant should have an extra bedroom included in HB despite fact regulations did not provide for this) and the advice was to apply that judgment resulting in an extra bedroom being awarded even though the regulations had not been amended.

See their memo at that time here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/226878/u2-2013.pdf

I would say your client should now get the extra bedroom directly as HB.

Hi - just been discussing this on twitter. I think the DWP were actually wrong in that memo (though as it came after the Burnip amendments, and a long delay, I suspect they feared the further wrath of the courts).

It depends what relief the court has granted - In Burnip/Gorry, it was declaratory relief. The Court did not strike down any of the regulations. As such, the regulations stood until amended.

The Supreme Court in Rutherford etc. did not make any statement as to relief. A declaration that the regulations amounted to unlawful discrimination under Article 14 does not affect their continued operation. The SC did not strike down any part of the regulations (and practically, hard to see how they could as what is needed is adding an exception, not removing anything). So, though it pains me to say it, I think the DWP are technically right this time. Morally is another question.

And I don’t think the Tribunals waiting on this could make any difference. If the regulations can’t be read in such a way as to be compliant, under s.3 HRA, then a declaration of incompatibility is the only option. FTT can’t make one and won’t affect the operation of the Regs anyway. Reading into B13 to include new classes of exemption would be a reading too far. So the regs stand until amended by DWP.

I was wondering whether there might be a Human Rights claim for those affected in the meantime. But damages not equivalent to losses…

shawn mach
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Re ‘A’, via Hopkin Murray Beskine Solicitors:

“I confirm that we are instructed to challenge the UK in the European Court of Human Rights, for breach of the rights of A and other vulnerable women whose lives are at risk .”

http://www.hmbsolicitors.co.uk/news/category/item/index.cfm?asset_id=1667

Neil
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Ros White - 09 November 2016 11:57 AM

Thanks Sarah and completely agree that a lot of credit due to Rutherfords and Carmichaels - it hasn’t been easy and it’s a shame that it had to go all the way to the Supreme Court for it to be established that there was no justification for the difference in treatment between adults and children in the bedroom tax rules.

Interestingly there is still a discrepancy, in so far as how the regulations stand as a result of the Birmingham cases, I am currently challenging this discrepancy. When the regs were written to allow an extra room, for a Carer for an adult, they can qualify for the exemption, through , AA, DLA/PIP or alternatively if sufficient medical evidence is available. With children who need separate bedrooms to sleep in the exemption is only available if one child receives MR or HR care DLA, whether you have compelling medical evidence or not, and DLA is harder to have awarded in younger children. I feel it not only discriminates against the disabled child, but the non disabled child who’s night time is disturbed if they shared a bed room. Any thoughts welcome.

Martin Williams
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Nearlylegal - 10 November 2016 03:42 PM
Martin Williams - 10 November 2016 10:47 AM

It is notable that the DWP gave the opposite advice to LAs on applying the Gorry judgment- the facts were pretty similar (the Court had held that a claimant should have an extra bedroom included in HB despite fact regulations did not provide for this) and the advice was to apply that judgment resulting in an extra bedroom being awarded even though the regulations had not been amended.

See their memo at that time here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/226878/u2-2013.pdf

I would say your client should now get the extra bedroom directly as HB.

Hi - just been discussing this on twitter. I think the DWP were actually wrong in that memo (though as it came after the Burnip amendments, and a long delay, I suspect they feared the further wrath of the courts).

It depends what relief the court has granted - In Burnip/Gorry, it was declaratory relief. The Court did not strike down any of the regulations. As such, the regulations stood until amended.

The Supreme Court in Rutherford etc. did not make any statement as to relief. A declaration that the regulations amounted to unlawful discrimination under Article 14 does not affect their continued operation. The SC did not strike down any part of the regulations (and practically, hard to see how they could as what is needed is adding an exception, not removing anything). So, though it pains me to say it, I think the DWP are technically right this time. Morally is another question.

And I don’t think the Tribunals waiting on this could make any difference. If the regulations can’t be read in such a way as to be compliant, under s.3 HRA, then a declaration of incompatibility is the only option. FTT can’t make one and won’t affect the operation of the Regs anyway. Reading into B13 to include new classes of exemption would be a reading too far. So the regs stand until amended by DWP.

I was wondering whether there might be a Human Rights claim for those affected in the meantime. But damages not equivalent to losses…

CPAG’s view is that claimants can rely on the judgment and it would be unlawful for an LA to refuse apply it:

A declaration of incompatibility is only necessary if primary legislation cannot be read in a way that is compatible with the Convention.  The HB Regulations are secondary legislation.  Therefore, the local authority and the Tribunal are under a duty under s6 HRA to dis-apply the legislation insofar as it discriminates against disabled people who have medical need for an additional room.

That was the approach of Upper Tribunal in MM and SI and the Supreme court in Mathieson. See Lord Wilson at para 48.

There may be tricky cases as in Humphreys where disapplying a discriminatory rule actually leaves the appellant worse off, but this is not one of them.  All they have to do is dis-apply the application of the size criteria (or apply it only to the extent that they are still deemed to have an extra room).

It is true that the High Court in MA found that “It is plainly right (and uncontested) that a Departmental circular is not a lawful vehicle with which to prescribe the means of calculating the AMHB for any class of case. That can only be done by secondary legislation.”  But that doesn’t mean that local authorities were not still under a duty to comply with the Gorry under s6 HRA.  If that is what the HIgh Court meant at para 93, that finding was obiter and wrong.

So claimants with a medical need for an extra bedroom should be advised to seek a revision (or supersession?) of their housing benefit award on an error of law and appeal against any refusal to the Tribunal.  They probably should also apply for a DHP to cover the gap while they are waiting, but they are entitled to an increase in HB as of right. 

 

[ Edited: 16 Nov 2016 at 04:18 pm by Martin Williams ]
1964
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Thanks Martin- that’s really useful.

Nearlylegal
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Martin Williams - 16 November 2016 03:39 PM

CPAG’s view is that claimants can rely on the judgment and it would be unlawful for an LA to refuse apply it:

A declaration of incompatibility is only necessary if primary legislation cannot be read in a way that is compatible with the Convention.  The HB Regulations are secondary legislation.  Therefore, the local authority and the Tribunal are under a duty under s6 HRA to dis-apply the legislation insofar as it discriminates against disabled people who have medical need for an additional room. [...]

So claimants with a medical need for an extra bedroom should be advised to seek a revision (or supersession?) of their housing benefit award on an error of law and appeal against any refusal to the Tribunal.  They probably should also apply for a DHP to cover the gap while they are waiting, but they are entitled to an increase in HB as of right.

Hmm, but HRA s.6(2)(b) - ‘made under primary legislation’, then s.6(1) does not apply. Regs made under s.69 Welfare Reform Act 2012?