Why the human rights challenge to the bedroom tax failed

This is really helpful - a very clear guidance as to the thinking in the Court of Appeal decision on MA and Others.  My recent experience is that post this decision, it is impossible/near impossible for First Tier Tribunals to rule in our favour in Carmichael lookalike decisions (i.e. where two disabled adults, members of a couple, cannot share a room) although on the other hand, it would make DHPs for this group almost compulsory!  However, it might still leave the field open in any area where there is a discrete limited group with very specific needs (for instance we have a case at present of a woman with severe mental health issues who needs two carers at night).  Also it indirectly makes out a strong case for overnight carers for disabled children (says that more attention should be given to their needs than to that of similarly disabled adults).  And of course it did not deal specifically with the issues Liberty is taking up on right to family life   Ruth

Yes, that decision may well have painted the court into a corner in the Rutherford case (disabled child needing overnight care).  Courts and Tribunals will want to avoid overturning MA by piecemeal decisions - every claimant with some kind of disability making out a limited HR case on his/her unique facts - but children whose circumstances are not catered for by the post-Gorry amending Regs seem to be in a stronger position.

Ironcally all the stuff in the decision about children being in a different position from adults is an attempt to retrospectively rationalise something random.  The three appellants in Burnip, Trengrove and Gorry could have had any disability-related need for extra bedrooms (indeed in two cases it was the adult claimant who needed the rooms) and they probably would have won: the real difference is that none of those appellants was among the intended beneficiaries of targeted DHP funds.  It was only from April 2011 and then especially from April 2013 that DHP funds were increased with an expectation that councils would use the money to mitigate the effect of welfare reforms

I still think the remedy in successful cases is a bit of a mess.  The unpublished order in Burnip, Trengrove and Gorry, which the UT followed in a case involving Bury Council, seems to say:

- the Regs cannot be interpreted in a compatible way
- so all you are getting is declaratory relief
- oh, and the Council has to give you some money.  It might be HB, it might not. Who cares?

The ‘oh and the Council has to pay you something, who cares what it is’ approach was favoured by Judge Mark in CH 466 2011 (copy attached)

The interesting thing is that it seems to be ‘The appeal is allowed, let the Council work out how they’re going to pay’

17. I therefore approach the question of remedy in the same way as the Court of Appeal.  I am able to substitute my own decision for that of the council in the present case and I do so by remaking the council’s decision so as to determine that the claimant is entitled to be paid a sufficient amount in addition to anything payable under the Housing Benefit Regulations that will result in her and her family not being discriminated against contrary to Article 14.  It is for the council to determine whether there are any further sums due to the claimant for it to comply with Article 14, and if so, to determine how much and to pay them.  It has no discretion in this respect.  Any dispute as to the amounts due will carry a further right of appeal.

Then consider para 92 of MA:

92. The history of the evolution of the policy which I have set out at paras 15 to 36 above shows that the Secretary of State well understood that there are some disabled persons who, by reason of their disabilities, have a need for more space than is deemed to be required by their non-disabled peers.  The question of how this special need should be accommodated in the proposed new scheme was the subject of wide consultation of interested parties and considered in great detail by the Secretary of State and Parliament.  The particular issue of whether (i) there should be sub-categories who were to be excluded from the application of the bedroom criteria (ii) their claims should be dealt with by DHPs or (iii) there should be a combination of these two solutions was considered at great length.  So too was the question of whether there would be sufficient money available for DHPs and whether the adequacy of the DHP fund should be kept under review.  This was all part of the decision-making process.  In my view, it is clear that, in conducting this process, the Secretary of State did have due regard to his statutory duties.  It was obvious that he was aware of the serious impact that the bedroom criteria would have on disabled persons who, by reason of their disability, had an actual need for more accommodation than they would be deemed to need by those criteria.  That is why so much effort was devoted to seeking a solution to the problem.  The PSED challenge is not concerned with the lawfulness or even the adequacy of the solution that was adopted.  It is only concerned with the lawfulness of the process.  In my view, the process did not breach the Secretary of State’s PSED.

I argued a couple of weeks ago (succesfully) that this means that MA does not preclude payment - it just says the scheme is lawful. Some remedy was envisaged - as noted at paragraph 92 of MA, and it is compatible with both Judge Mark’s decision and MA that the tribunal may allow the appeal and leave the remedy to the local authority.

I think in practice this is effectively applying section 6 of the Human Rights Act ‘Acts of public authorities’ rather than section 3 ‘Interpretation of the legislation’.

Not ideal in the long run (as DHP budgets get squeezed) but a useful remedy in the short term perhaps. A recent Shelter report showed most Local Authorities are well off their maximum spend on DHPs

Phil where did you argue this and have you got a decision, if so could you post, minus the personal stuff please.

Unfortunately I don’t think the decision will help you - will have to wait for the (inevitable) full statement.

First Tier Tribunal in Greenock. 4 bedroom tax appeals. 2 disability discrimination and 2 right to family life. 2 disability discrimination cases were adults unable to share a room due to the nature of their disability. Both won. (One of the right to familiy life lost and the other was adjourned)

The Judge simply recorded

“The appeal is allowed. The tribunal reached a different conclusion on essentially the same facts.”

Rep from HB had turned up armed with MA. I had come across Judge Mark’s decision a few days earlier and thought it offered a nice solution to MA. If you can’t beat it, incorporate it.

Previously I had submitted the decision by Tribunal Judge Boyd as a ‘lookalike’ (see nearly legal http://www.govanlc.com/CaseF.pdf)... and then MA came out.

Crucial thing about MA is that it doesn’t say there is no discrimination - there is undoubtedly discrimination - and nor does it say that there should be no remedy. It does say that remedies were considered by the Government who chose to bolster DHPs rather than write exclusions into the regulations.

But that leaves the precarious position where a claimant can be left at the mercy of DHPs. Judge Mark’s decision takes the discretion out of DHPs! The argument becomes that the local authority must apply a remedy. How they pay is optional.

I have no doubt that DWP will insist on the Local Authority getting a statement of reasons, so will update when more is known. In the meantime Judge Marks decision stands as the only relevant Upper Tribunal decision that has considered both Gorry and MA (albeit at an earlier stage of MA but when the conclusion was the same)

Bedroom tax tribunal victory for single parent

The tribunal ruled that the Human Rights Act must be taken into account, in particular Article 8 on the right to family life, and this must apply to the tenant, his ex-wife and their son.

They were said to have both individual and collective rights to a family life.

The tribunal specified the importance of the tenant’s child having his own room at both his parents’ homes. It said if the original decision stood, this would represent “a serious interference with each one’s (father’s, mother’s, child’s) right to family life”.

Jon Twelves, Isos’ assistant director of customers and communities, said: “Our tenant’s case could be very significant, as it appears the tribunal has recognised the need for his son to have his own room in the tenant’s home, noting how often he stays there – even without a court ruling specifying the access arrangements.

http://www.24dash.com/news/housing/2014-03-27-Bedroom-tax-tribunal-victory-for-single-parent

Does anyone have an update as to whether or not leave to appeal to the Supreme Court has been applied for in MA and ors .

I have a bedroom tax appeal due to be heard by a Tribunal on 14 April.  One of my arguments is presently scuppered by MA.  I have asked for my case to be stayed pending the final outcome in MA although I have another argument resting on one of the “bedrooms” having a floor area of less than 70 sq ft.

hi -

HB Bulletin U2/2014 says that claimants have applied for permission to appeal to Supreme Court -

https://www.gov.uk/government/publications/hb-bulletin-u22014-court-of-appeal-judgement-relating-to-hb-size-criteria-for-social-sector-tenants

cheers ros

Just read the Desmond Rutledge piece, and a little perplexed at the second point that the coalition was elected to reduce public spending, whilst under the shadow of the financial crisis.

Clearly I missed something in 2010, I thought the Coalition came about because Labour couldn’t agree a deal with the Liberals, and in affect this Government was put in place with no public mandate. Unlike Europe were Coalitions are part of the process due to proportional representation, in Britain it is first past the post, and the majority of votes (not seats) were for Labour who had a significantly different agenda (as did the Liberals at the time of the actual vote, and therefore those who voted liberal voted for those policies, not austerity measures which they adopted once in power). Ironically, my local Liberal MP took a Tory seat by a campaign based on vote Liberal and keep the Tories out.

So i am a little confused how a Court of law can reason that it is what the Government was elected for, I know there are a lot more complexities involved, but it does seem the Court relies heavily on not interferring with Parliaments intent.

Have I misunderstood?