Want to hear about the ‘absent parent’ that got granted a ‘spare’ bedroom for his son?
This happened last week in Newcastle and I have spoken with the successful claimant and this will really interest all concerned with the bedroom tax and especially those tenants whose councils have said we have no discretion.
The male (M) and his female partner (F) split up 3 years ago and amicably agree a joint custody arrangement of the only child (C).
M leaves the family home (mortgaged so no HB) and for the first few weeks goes to sleep at a friends. Then seeks a 2 bed social housing property for himself and his son.
The HA is reluctant yet advises that his former wife (F) writes in to say how often C stays with M (the joint custody order still to be agreed by the court) This is done and M takes possession of a 2 bed social housing property and his son (C) stays regularly.
Then comes the bedroom tax and M is determined to have a 1 bed housing need and the bedroom tax is deducted at 14%.
M asks the council to review the case and Newcastle Council does and the case is referred for appeal. The appeal is then deferred by the council and the council reviews its decision again and decides to award M a 2 bed housing need and thus not liable for the bedroom tax.
So what happened?
M issued the council with evidence of his joint custody with his son (C) and cites sections 20-21 of HBR 2006; the Children Act and Human Rights Act. The council it appears – wisely – decide that a court order which awards joint residency or custody means the son (C) is ordinarily resident at two homes and such a court order and continued adherence to it overrides the ‘housing need’ guidance given by the DWP in the bedroom tax.
This decision should give heart to the many ‘absent parents’ (and I detest that term!) who are in the same boat. Some of these may well not have a court order detailing the arrangements yet I see nothing to stop a couple getting a letter drafted and notarised or swear an affadavit and then present as evidence to the council that the child or children live with both parents.
Many tenants will have hears their council say we have no discretion in the determination yet this is not the first case of a council increasing the ‘housing need’ above the DWP guidance. The successful appeals in Redcar, Hereford and Glasgow did the same by allowing disabled couples a bedroom each….and none of those were the first to do this as Oldham Council did this at review stage in early October and ahead of those three judgments.
And of course there is the old argument that there is no legal definition of ‘sheltered housing’ yet HB departments decide daily what is and is not sheltered housing on a daily basis and have done for decades.
In summary, tenants appealing the bedroom tax should take heart from this and it will give hope to the ‘absent parent’ whom the government has said to hell with your child arrangements we are hitting you with the bedroom tax.
It should also give heart to those tenants who have been told by their councils that “we have no discretion” which has always been a nonsense as the sheltered housing analogy above proves.
It will give heart to all separated parents as the bedroom tax has proved a huge strain on both parents involved and damaged the children of separated parents no end which just adds to their hurt of their parents separating in the first place and the callous disregard to that and to higher costs that will have for the public purse ignored by IDS and the DWP.
This time a council has made a good decision and it is not the courts that have kicked ass with the DWP as they have done in Fife, Westminster, Islington, Redcar, Glasgow and Hereford. What are the chances of a same decision being upheld by the courts that a child residency or custody arrangement is of higher legal value than the mere guidance of the bedroom tax? Somehow I don’t fancy IDS’s chances in that!
Get appealing on this one people…it should warm up your creative juices for the 2014/15 bedroom tax decisions which you will appeal in far greater numbers when they land on your mats in about 13 weeks time! Remember an appeal is your right and costs you nothing and you can still appeal your 2013/14 decision and now you know on what grounds appeals (as well as reviews here) have been successful you have the information you need to complete your 2014/15 appeals and in hugely increased numbers.
More to come on that subject as I have just been delivering bedroom tax appeal workshops around the country to tenants. landlords and others and some VERY interesting stuff to report on them shortly. Yet this case deserves much awareness and consideration in its own right so thats for another imminent blog.
SPeye Joe (Welfarewrites) 
This is brilliant news thanks for sharing Joe. Do you know of any successful appeals yet where a married/cohabiting couple have been awarded a bedroom each due to a disability? I am currently taking one to tribunal (no date yet) and it would be great to hear if any others have been successful. The situation I am taking to tribunal is where the male has PTSD and depression so the female is often locked out of the room for days or cant sleep with him due to severe night terrors.
Jessica
The Redcar, Glasgow and Hereford cases were all successful in this area and all allowed a housing need of two bedrooms when a disabled couple needed, on medical grounds, to sleep in separate rooms.
The Glasgow and Hereford cases also strongly intimated that to deny a separate bedroom each is a human rights breach too and both are well liked by lawyers in this area (who do not have a high regard for the Redcar judgment
One general point is that all councils have to ‘consider’ housing need when making the decisions and cannot see this as a fixed issue and only limited to what the DWP says
Hi Jessica I had an appeal allowed in Fife on 19/12/13 where the Judge agreed that a couple were entitled to separate bedrooms due to the wife’s illness. In addition to the Human Rights argument I pointed out yet another ridiculous anomaly in the legislation, namely that my client would have been entitled to an extra bedroom for an over-night carer if she was a single person and yet was denied same for her husband!
Hello x
Doesn’t that imply that if both households claimed HB there would be a dependant child in each household?
Gareth – Yes it does imply that I agree and while not applicable in terms of claiming HB in this case that does reflect the reality of the situation.
The child IS dependent on both parents and that is something we accept in societal terms yet IDS wants to exclude in benefit terms and we have to then ask shouldn’t benefit reflect the reality and fact of the matter?
IDS’s ‘logic’ (excuse that term) is that the benefit system disallows joint custody and seeks to impose benefit regulation above a court order and above what is best for a child. That cannot be right and should not be allowed to happen and to date how many times have we heard IDS, Freud, Webb et al say in superficial political speak that we shouldnt pay benefit on two homes – a situation which does not apply here as mum is not claiming HB and works. This case for me opens up a much wider debate in general terms which is needed as well as widening the definition of “housing need” that has already been opened with the Redcar, Glasgow and Hereford cases which all allowed an ‘extra’ bedroom for each in a disabled couple.
Going back to the simple nature of the bedroom tax, if it is only imposed when the number of bedrooms exceeds the ‘housing need’ then ‘housing need’ is just as much a concept that needs to be considered by HB officers and NOT just taken as read from the narrow way DWP define it to be
Gareth – Yes it does imply that I agree and while not applicable in terms of claiming HB in this case that does reflect the reality of the situation.
The child IS dependent on both parents and that is something we accept in societal terms yet IDS wants to exclude in benefit terms and we have to then ask shouldn’t benefit reflect the reality and fact of the matter?
IDS’s ‘logic’ (excuse that term) is that the benefit system disallows joint custody and seeks to impose benefit regulation above a court order and above what is best for a child. That cannot be right and should not be allowed to happen and to date how many times have we heard IDS, Freud, Webb et al say in superficial political speak that we shouldnt pay benefit on two homes – a situation which does not apply here as mum is not claiming HB and works. This case for me opens up a much wider debate in general terms which is needed as well as widening the definition of “housing need” that has already been opened with the Redcar, Glasgow and Hereford cases which all allowed an ‘extra’ bedroom for each in a disabled couple.
Going back to the simple nature of the bedroom tax, if it is only imposed when the number of bedrooms exceeds the ‘housing need’ then ‘housing need’ is just as much a concept that needs to be considered by HB officers and NOT just taken as read from the narrow way DWP define it to be
Reblogged this on Benefit tales.
Could this open a new can of worms regarding grandchildren as we have ours 3 to 4 times a week sleeping in spare room..