Bedroom tax appeal

I had a bedroom tax appeal for a non-resident father on Friday the Judge
agreed the father although not in receipt of the child benefit could be seen to be the responsible carer, the HB rep advised if this was the case then the mother if on HB would be impacted as she would no longer then be seen as responsible for child even with the child benefit and did we want to impact on her claim?
My tenant did not want ex affected as they are on good terms and we agreed to adjourn as we did not know her position fully. ( now know mother is on partial HB)

Anyone any thoughts as I was caught out with this?

thanks

Why not have a look at this decision on shared care, may provide an alternative way to argue the case?

I used that decision Judge was not persuaded by that and wished to look at who was main responsible parent

but thanks anyway

I haven’t tried this out so far but I think it is worth exploring:  Reg 20 combined with Reg 7 is always used to establish that a child can belong to one and only one family (This was more or less the decision in Swale) and if a member of another family cannot be an occupier.  I think this is crazy but .........  Because I have been hitting this problem in appeals and have had no success so far I am going to look at the argument that a parent in a shared care situation should be treated in a way which is similar to a foster parent - i.e. a foster child is explicitly excluded from being a member of the household or an occupier (Reg 21) but B13 (6) which is the bedroom tax regulation has a special exemption for foster parents (they are a qualifying parent or carer).  When we look at the definition of ” qualifying parent or carer” in Reg 2, it is effectively where a foster child is excluded from being an occupier by Reg 21, so they had to find another way of providing a room.  I think that we should say this definition should be extended to include a parent who is not the main carer (i.e. excluded by Reg 20 because the child belongs to another household), so ” reading into” the Regs an expanded version of the definition in reg 2, in order to make it compatible with the child’s right to family life.  I’d welcome comments from others on how viable they think this approach is   Ruth

Ruth Knox - 11 June 2014 06:46 PM

I haven’t tried this out so far but I think it is worth exploring:  Reg 20 combined with Reg 7 is always used to establish that a child can belong to one and only one family (This was more or less the decision in Swale) and if a member of another family cannot be an occupier.  I think this is crazy but .........  Because I have been hitting this problem in appeals and have had no success so far I am going to look at the argument that a parent in a shared care situation should be treated in a way which is similar to a foster parent - i.e. a foster child is explicitly excluded from being a member of the household or an occupier (Reg 21) but B13 (6) which is the bedroom tax regulation has a special exemption for foster parents (they are a qualifying parent or carer).  When we look at the definition of ” qualifying parent or carer” in Reg 2, it is effectively where a foster child is excluded from being an occupier by Reg 21, so they had to find another way of providing a room.  I think that we should say this definition should be extended to include a parent who is not the main carer (i.e. excluded by Reg 20 because the child belongs to another household), so ” reading into” the Regs an expanded version of the definition in reg 2, in order to make it compatible with the child’s right to family life.  I’d welcome comments from others on how viable they think this approach is   Ruth

i’d run that thought by Counsel - a nice human rights argument that might well have legs.

what about the right to a family life argument In a case like this?

i.e. if the father cant get full housing benefit on a two bedroom then he has to move to a one bedroom and therefore cant have access to his child?

Yes, the main argument in case of shared care is going to be the right to family life, but we then have to find a way of making it somehow compatible with an interpretation of the regulations - some FTT judges are happy just to say that it’s not right and shouldn’t happen but others refuse on the basis that they can’t find a way of reading this right into the regulations

Although not renewed at the supreme court hearing the article 8 argument was initially made in the Swale/Marchant case.

The court rejected an argument based on Article 8, stating that respect for the home and family life did not require the state to provide two homes that were both large enough to accommodate children of a separated couple.

I think the fact that it was not renewed though, means Swale really doesn’t provide a precedent for a decision on Article 8.  What the Supreme Court says on this is:

“It was also argued before the judge that, if the statutory scheme were ambiguous, any ambiguity should be resolved in the applicant’s favour by reference to Article 8 of the European Convention on Human Rights.  However, that argument has not been renewed before us and there is no need to refer to it further.”

I haven’t read the High Court decision that went to the Appeal Court, but I wouldn’t have thought we could take bits of the Swale decision from the High Court as case law when the decision was appealed.  As I see it therefore the issue of Article 8 and shared residence has not yet been tested beyond FTT decisions.