bedroom tax in the upper tribunal
Via Nearly Legal -
‘I have been sent a copy of a letter staying an appeal to the Upper Tribunal, which states that all appeals on the issue of room size and use are stayed pending determination of a ‘lead case’ and any further appeal in that case. This is case CH/153/2014.
Does anyone know this case and whether it is one of the FTT decisions we already know about? ‘
In addition, HB Bulletin G5/2014 highlights another 3 bedroom tax UT appeals -
- CH/59/2014 – LA appeal – spare room subsidy – responsibility for child
- Not yet registered at Upper Tribunal: two spare room subsidy appeals
Anyone dealing with any of them?
[ Edited: 4 Aug 2014 at 10:28 am by shawn mach ]
also this from the UT site ...
Cases pending before Three–Judge Panels -
CSH/41/14 and CSH/42/14: Secretary of State for Work and Pensions’ appeal regarding what constitutes a ‘bedroom’ by reference to size or use – relevance of statutory space standards
Deputy Manager, Reading Community Welfare Rights Unit
Total Posts: 1711
Joined: 16 June 2010
I have one waiting to be listed- looks like it’ll be going into the stayed pile.
Social inclusion unit - Swansea Council
Total Posts: 161
Joined: 23 June 2010
I’ve got a date for mine, completely based on size and use of room - so expecting a directions notice now.
Thanks for the warning
New bedroom tax Upper Tribunal decision in CH/4319/2013 ... claimant’s appeal allowed
4. The claimant lives in a three-bedroom house. She formerly occupied it with her three daughters, but two of her daughters have moved out. Therefore, as is common ground, she was entitled to only two bedrooms unless she was a “person who requires overnight care”. The claimant’s case before the First-tier Tribunal was that she was such a person and was therefore entitled to three bedrooms so that no deduction should have been made from her eligible rent under regulation B13. The local authority’s case was that she was not such a person and so was entitled to only two bedrooms and the 14% reduction was required.
Regulation B13 of the Housing Benefit Regulations 2006 -
“(6) The claimant is entitled to one additional bedroom in any case where -
(a) the claimant or the claimant’s partner is (or each of them is) a person who requires overnight care; or ...”
“Person who requires overnight care” is defined in regulation 2(1) of the 2006 Regulations -
“person who requires overnight care’ means a person (P) ...
(b) whom the relevant authority is satisfied reasonably requires, and has in fact arranged, that one or more people who do not occupy as their home the dwelling to which the claim or award for housing benefit relates should -
(i) be engaged in providing overnight care for P;
(ii) regularly stay overnight at the dwelling for that purpose; and
(iii) be provided with the use of a bedroom in that dwelling additional to those used by the persons who occupy the dwelling as their home ...”
Consideration and decision:
13. The present case, as was recognised by the First-tier Tribunal, turns entirely on the meaning of the word “regularly” in head (b)(ii) of the definition of a “person who requires overnight care”. That is a word that has many different meanings, or shades of meaning, in ordinary English usage ... The First-tier Tribunal held that the word “denotes something which happens at intervals which, if not precisely fixed, are at least reasonably even” but the judge was unhappy with that construction because whether or not the need for overnight care was regular in that sense might not reflect the relative extent of the need. In my judgment, that difficulty suggests that the word does not, in this instance, have the meaning ascribed to it by the First-tier Tribunal. The word can also be used as a synonym for “habitually” or “customarily” or “commonly” and this seems a more sensible understanding of the word in the context of this legislative provision than that adopted by the First-tier Tribunal. Whether the intervals between a person’s need for overnight care are uniform or not is, as the First-tier Tribunal pointed out, immaterial to his or her need for a bedroom in which to accommodate a carer.
14. What the legislation is concerned with is whether the need for care arises often and steadily enough to require a bedroom to be kept for the purpose. A bedroom cannot be switched on and off and, if the object of the legislation is to encourage claimants to move to smaller accommodation or take lodgers into their spare rooms, it is to be presumed that whether overnight care is regular or not has to be considered over a fairly long period. Moreover, there is nothing in the word “regularly” that requires that the carer must be required to stay overnight on the majority of nights for the claimant to meet the criterion. That may be why that word was chosen. It does not mean the same as “normally” or “ordinarily”. A bedroom may be required even if the help is required only on a minority of nights. Whether a carer must “regularly” stay overnight must be considered in that context.
15. That question - whether or not the claimant reasonably requires, and has in fact arranged, that one or more people who do not occupy as their home the dwelling to which the claim or award for housing benefit relates should “regularly” stay overnight at the dwelling for the purpose of providing care - is a question of fact ....
16. In the present case, I am satisfied that the First-tier Tribunal did err in law because, despite the obvious care with which the decision was given, it did not correctly understand the meaning of the word “regularly” in the relevant context in the definition and so it did not apply the correct statutory test. Accordingly, I allow the claimant’s appeal.
17. It seems fairly clear that the First-tier Tribunal would have allowed the claimant’s appeal had it felt able to do so. I see no reason not to adopt its findings as to the claimant’s need for care and the arrangements she has made. Even if the claimant does not require that carers should stay overnight in her house quite as frequently as her more recent written evidence suggests, I am nonetheless satisfied that the nature of her condition is such that she does need to have them regularly staying overnight at her home for the purpose of providing her with care.
18. In view of the local authority’s initial approach to this case, I will add that whether or not a claimant who is entitled to the care component of disability living allowance qualifies for that component on the basis of the “night” attendance conditions cannot be determinative of the question whether claimant is a “person who requires overnight care”.
[ Edited: 5 Aug 2014 at 11:20 am by shawn mach ]
summary of CH/4319/2013 now also available in rightsnet briefcase ...
more re CH/153/2014, the ‘lead’ case on room size and usage ..
Size and use UT hearing scheduled for 18 September:
‘The UK Government’s controversial “bedroom tax” policy could be thrown into chaos later this month.
The Department for Work and Pensions is launching a bid to overturn a landmark ruling that size does matter when it comes to defining a bedroom.
If it fails, it will set a precedent that could spell the beginning of the end for the so-called bedroom tax.
At the heart of the matter is Fife man David Nelson, who won a groundbreaking test case in Kirkcaldy a year ago when top QC Simon Collins ruled that size and usage should be taken into account when deciding what constitutes a bedroom.
The DWP will appeal that decision at a hearing in Edinburgh on September 18.
It will be the first appeal by the Government on the grounds of room size and this time the decision carries more weight.
Mr Nelson is hoping to make history for a second time by persuading the judge to dismiss the DWP’s appeal and uphold the original decision.’
update on the david nelson case in scotland
HB Bulletin U4/2014 (attached below) sets out details of four UT in Scotland decisions, not yet published to UT site - all find in favour of Secretary of State -
- HB_Bulletin_U4_2014.doc (File Size: 187KB - Downloads: 799)
New Nearly Legal blog contains links to CSH/188/2014 and CSH/589/2014 and says that -
’... while the judgments do do something rather more and rather different to the outcomes suggested in the DWP Circular, sadly, what they actually do is worse.’
Anthony Gold Solicitors London
Total Posts: 16
Joined: 18 March 2014
I covered the other two Scottish UT decisions that are in the DWP circular at
Thanks for that and for update on awaited size criteria judgment -
rightsnet writer / editor
Total Posts: 2908
Joined: 14 March 2014
those more recent decisions just published and now on rightsnet - links through this story -
Pete at CAB
Total Posts: 556
Joined: 18 June 2010
Reading the precis of CSH/777/2013 it occurs to me that this could possibly mean that any LA who ceased DHP’s without a change in the claimants circs could potentially fall foul of the HRA. I’d be interested to know what others think.
Welfare rights adviser - Sefton Council, Liverpool
Total Posts: 3060
Joined: 16 June 2010
Given what the High Court said in Rutherford then cases using the HRA will become readily more arguable.
53. For obvious reasons, any expression of view on my part in this judgment is not binding on Pembrokeshire or generally. However, on the information that is available to me, including Warren’s condition, the Claimants’ need for overnight carers requiring a bedroom, the fact that the property has been specifically adapted (twice) for Warren’s needs, the absence of any alternative suitable accommodation in the county, and the fact that Pembrokeshire has had and should continue to have available sufficient funds, a decision to withhold DHPs would appear to be unjustifiable. As it is, after the initial hiatus, no such decision has been made. Although Pembrokeshire’s undertaking to consider whether further DHPs were warranted if the Claimants’ HB entitlement were to be similarly limited in future does not amount to a written guarantee, the fact that Pembrokeshire has exercised its discretion in favour of an award for the last two financial years adds weight to the conclusion that it would appear perverse for Pembrokeshire to reach a contrary decision in the future if the scheme and the Claimants’ circumstances remain unchanged. As I have said, there is no evidence that Pembrokeshire will refuse to make up the Claimants’ shortfall by DHPs.
54. I therefore conclude that there is at present adequate assurance that the Claimants will continue to benefit from awards of DHPs to plug the gap that would otherwise exist. If the scheme or other circumstances were to change materially, different considerations might apply; but they do not apply now.