FTT statement of reasons- separated families and the ‘bedroom tax’ 

hi lee -

thanks for this ... if you want to send it to me via .(JavaScript must be enabled to view this email address) we can upload here too…

cheers - shawn

here’s the judgment from Lee ..... cheers Lee

This judgement has not taken into account HBR 20 at all, I note the judge broached the topic, but has not said anything else? Would a UT judge reach the same conclusion on appeal?

I have not looked closely at the decision yet, but I don’t see Regulation 20 and 21 as a problem, unless it is claimed that the child is a “member of the household”.  But the crucial question for Bedroom tax regs is not whether they are a member of the household but whether they are “occupying” the accommodation.  A child can occupy accommodation without being a member of the household.  This is the situation for foster children for instance.  Regulation 3 (definition of non-dependant) accepts (Paragraph (2) (c)) that there are cases of children who are living with the claimant but are not members of her/his household.  I think it comes back to Regulation 7 and arguing that a child with shared residence can - like a university student and various other categories - occupy two homes.  Ruth

Any chance that ISOS might release their submission Shawn?

Ruth Knox - 03 April 2014 08:11 AM

I have not looked closely at the decision yet, but I don’t see Regulation 20 and 21 as a problem, unless it is claimed that the child is a “member of the household”.  But the crucial question for Bedroom tax regs is not whether they are a member of the household but whether they are “occupying” the accommodation.  A child can occupy accommodation without being a member of the household.

I think the problem with the judgement, in my mind, is the distinction (In regs) between “family” and “others”.

Yes, the bedroom tax/LHA room requirements only looks at occupancy but it’s in regard to “occupants” that are not also “family” members as defined in the regs. Such as non-deps, carers, foster children, children not of the same household.

What he seems to be saying is that, in order for them, the child and father, to enjoy family life under HR regs, they have to be treated as living as a “family”. Part of the HB regs will almost have to be rewritten for that to happen.

Yes I see that, but the Convention definition of “family life” does not have to be as narrow as the HB Regs one.  In one case, we are taking the “ordinary meaning” and in the other a specific legal interpretation (primarily for the purpose of calculating amounts of means-tested benefits). 

The child of a separated couple can only be the family member of one parent for Social Security purposes.  But in ordinary meaning of the word s/he is also part of the other parent’s family.  In the same way if, for any reason, there were a bedoom tax penalty which prevented an adult son or daughter living with their parents (I must admit it’s hard to think of an example), then this would be an interference with family life, even though as adults, they would not be part of the family for benefit purposes.

Ruth

Bryan R - 03 April 2014 10:51 AM

Any chance that ISOS might release their submission Shawn?

Hi Bryan,

We wouldn’t release a submission. In any case, this particular submission focused so heavily on the family, their circumstances and history that it would need to be redacted into illegibility!

I’ve sent you an email with a few pointers.

Lee

Yes, there is no definition of family in the HRA so, as Ruth says, the word must be given it’s ordinary, everyday meaning.  In my view, this could, depending on the circumstances, be very wide indeed.  Obviously it will apply to close relatives, such as parents and children.  But, it could also apply to those who are not related, such as an adult and step child where there is an enduring and stable relationship in the context of a familial set up.  Obviously, it probably would not apply to commune type situations such as ‘the Manson family’.

nevip - 04 April 2014 09:19 AM

Yes, there is no definition of family in the HRA so, as Ruth says, the word must be given it’s ordinary, everyday meaning.  In my view, this could, depending on the circumstances, be very wide indeed.  Obviously it will apply to close relatives, such as parents and children.  But, it could also apply to those who are not related, such as an adult and step child where there is an enduring and stable relationship in the context of a familial set up.  Obviously, it probably would not apply to commune type situations such as ‘the Manson family’.

Or, presumably a much broader definition of family, such as ‘the family of man’;)

Quite.