Bedroom tax - appeal on two points

I have an appeal in against a bedroom tax decision involving two “spare” rooms which is on two points: 

1.  That one of the “spare” rooms is not a bedroom because of the household’s circumstances and the design and use of the property.  This will reduce the bedroom tax to 14% of eligible rent as there is one further bedroom which cannot be excluded. 

and…

2.  That the bedroom tax discriminates against the appellant because of his disability (as per Burnip/Trengrove).  As regards the latter, I was intending to ask for determination of this to be stayed until the current JRs are concluded (which may well be a very long time). 

I can’t see anything in the D & A Regs or FTT procedure rules that enables a Tribunal to “split” its decision in this way - i.e. decide the bedroom point but defer the discrimination/ECHR point.  Any ideas?

For constitutional reasons (the issue of judicial activism, or judge made law, v the theory of the legislative sovereignty of Parliament) where an appeal is founded on more than one ground, then if the Court/Tribunal can decide the matter on any ground raised then it will determine the appeal and not resolve the other grounds raised but will leave them for another court in a later case.  The court/tribunal might comment on them but these comments will be obiter and not part of the ratio of the decision.  Of course, FTT’s do not make legally binding decisions but they tend, by and large, to abide by these principles.

In my view, Rule 5 is concerned with procedural matters and not the substantive ones that are the subject of the appeal proper and is designed to allow flexibility in accordance with rule 2.  I can’t think of any power which would allow what Neil is looking for.  The tribunal, if it can, has to decide the appeal one way or the other and determine whether the decision to award benefit, based on the number of bedrooms, is correct or not.  If it can decide that the decision is wrong and that more benefit should be awarded then it is duty bound to do so and finally dispose of the appeal.  Anything else is open to the accusation of an abuse of process.  If the tribunal thinks that the decision is correct on the face of the relevant statute (in this case ground 1) but accepts that the appeal raises wider legal arguments from other statutes or cases (ground 2), then it should go on to consider those arguments and either decide the case one way or the other, adjourn with directions or adjourn until a decision is handed down from a case pending in the higher courts which has direct relevance to the case before it.  I can’t for the life of me see a way round the totality of this.

A further option is that the FtT agrees one of the rooms is not a bedroom on the facts of this case and upholds the appeal to that extent, but rejects the appeal on the second point (either because it does not accept the HR/discrimination case on its merits or, more likely, it does not consider that it can provide a remedy).  The appellant appeals to the UT, and the UT stays the case until the JRs are decided.  Meanwhile, the Council pays HB with just a 14% bedroom tax instead of 25%, in accordance with the FtT’s decision.

That would achieve the practical outcome you are seeking wouldn’t it?  Does it make any difference whether the discrimination matter is stayed at the FtT or UT level?  Either way the appeal is not affected by the anti-test case rule because it is already in the system as a known look-alike ahead of the JR result.

In simple terms, if a claimant is awarded £75 a week and appeals because he wants £100, it is open to a Tribunal to award him £86 and it is open to him in turn to appeal to the UT on a point of law in the hope that he will eventually get the full £100.

Right? Am I missing something?

“Of course, FTT’s do not make legally binding decisions but they tend, by and large, to abide by these principles”.

That should read….“legally binding on other courts/tribunals….....”

Many thanks for your wise words.

I think the appeal is effectively hemmed in by the Tribunal Rules and it’s not going to be possible to sever the isuses - though as HB Anorak says, a Tribunal could uphold the appeal about the bedroom point and dismiss the Burnip point leaving open the way to an appeal to the UT.

Both arguments will have to be dealt with by the Tribunal.