Overnight care and the Bedroom Tax

What are people’s reactions to SM vSSWP (UHC) [2023} UKUT 176 (AAC)?  Up to now my experience is that, provided claimants had the correct benefit, a simple statement by them and their carer of how often they stayed overnight to provide care was enough to have the need for an additional bedroom accepted. Queries, if any, would be about what constitutes “regular”.  This decision seems to have the UC decision-maker and then the Tribunal Service assess the nature and need for the care itself.  In this case, the care seemed to fall into the “supervisory” category where the carer has to be there and alert to a possible episode of arrhythmia, rather than providing “specialised care”.  This would seem to rule out many cases involving mental health for instance, where the carer’s role is mainly to calm and reassure (not a particularly specialist role), or cases where an overnight carer gives a parent a break from children getting up and wandering in the night.  I’d like to hear comments and discussion of possible challenges from colleagues.

A can of worms is duly opened here IMO!!!

the UT decision clearly and correctly cites the legal framework as:-

“From 1 April 2011
legislative amendments provided for an additional bedroom where the claimant or
their partner “requires overnight care”, which was defined as a person in receipt of
certain allowances or who the authority was otherwise satisfied required overnight
care, and reasonably requires and has in fact arranged for one or more nonoccupiers to provide it and stay overnight for that purpose (regulation 2 of the
Housing Benefit (Amendment) Regulations 2010, SI 2010/2835). The Explanatory
Memorandum to those regulations explained that the intention was that an additional
bedroom should be available for those with “a proven need for overnight
care…provided by a non-resident carer” and an “established need” for such care.”

and then goes on to describe the amended regulations under UC:-

“Paragraph 12 of Schedule 4 to the 2013 Regulations as originally made
provided for an additional bedroom where the renter required overnight care. This
was subsequently amended, as a result of the decision of the Supreme Court in MA,
to include a person other than the renter. The Supreme Court referred to disabled
people who have “a transparent medical need” or an “objective need” for an
additional bedroom. The Explanatory Memorandum to the amending regulations
explained that the amendment was to permit an extra bedroom where a disabled
person requires and has overnight care from a non-resident carer”

clearly, the UC regs only therefore (unfortunately) allow the additional bedroom in cases of “objective need” (as above) and - moreover - only (usually) in cases where there is a non-resident carer.

I suppose an argument can be constructed where it would be unreasonable to expect (eg) mum to go to (eg) daughter’s aid for a period of time (when residing in the same home) and then be expected to return to her own shared bedroom (eg shared with partner) and so disturb partner’s sleep etc. I suspect the “objective need” in such a case would turn on several case-specific findings of fact (including how long the care itself takes to deliver to the daughter, how regular the care is, the mother’s own health perhaps, and even how the partner may be affected or even consideration of whether the “sleeping/putatively disturbed partner” is in employment etc).

so - a can of worms potentially!!

Basically, the question of whether the o/n care is “objectively required” has always been a factor in these cases imo and - as the judgement in SM states - being in receipt of a qualifying benefit in itself does not (and with PIP DL awarded solely for aids, for example, cannot in itself) meaningfully demonstrate that such an “objective need” exists . DLA HRC when caring for a child might of course make for a slightly different scenario…..  but I suspect the same territory as SM would still need to be navigated.

I wish it wasn’t like this (obviously) and indeed wish there was no such thing as Bedroom Tax either ......but I am afraid that is my view as thigs stand.

The ratio of the decision is that ‘care’ means what it does in other contexts and must therefore be something which is required by the claimant (as opposed to being something they could reasonably do without). I don’t really think that this is a particularly controversial conclusion.

The findings of fact made by the FtT which were upheld are not themselves binding. However, the FtT certainly doesn’t seem to have found that there was any aspect of ‘supervision’ or ‘watching over’ being provided in this case. The ‘care’ was in the re-assurance being provided following episodes of arrhythmia. The FtT didn’t think this sufficient for the reasons it gave and the UT said there was no error in its approach in that respect.

I would not be concerned that this decision would impact people who do have a need for supervision or watching over for whatever reason because these are needs which fall within the established definition of care. The UT in this case has not changed that definition.

I agree that in many cases, the DWP will not carry out any real enquiry into the nature of the care being provided (this is also true of carers allowance). We don’t know why this happened in the particular case at hand, but once the issue is raised the tribunals need to decide it.

I don’t think that case is particularly/intrinsically detrimental to other overnight care cases either. I do think the FtT could have gone further in their investigations about what the impact of an absence of care would be for the appellant, but then that’s almost always a thought after a failed appeal.

The decision talks about the ‘anxiety’ she experiences in dealing with her condition, particularly when alone, and it may well be that this could become overwhelming or detrimental etc if she was left alone frequently. But, that would have required further exploration of that (the detriment/MH etc) side of the case, and it didn’t seem like it came up much at all.
And, if it had, I think the frequency issue would take more of a centre stage, and I don’t know that in this case the absence of the parents would be frequent enough to justify the additional bedroom. Even with moderate anxiety, one might manage a night alone here and there.

Well maybe I am over-reacting, I hope so. Ruth