If you are separated from your children and you have a bedroom in your property where your child / children comes to stay and sleep you will be deemed as having a spare bedroom and hit with the bedroom tax. OR SO WE ARE TOLD
You will have been told that the child who lives with the parent who gets Child Benefit is the only one able to have a bedroom. OR SO WE ARE TOLD
NOT ANY LONGER!
A bedroom tax decision by a judge with a known expertise in human rights issues – and the tenant tells me the case was delayed and set aside for this experienced judge too – says:
“The Tribunal was satisfied it is possible, legally, for a person to occupy more than one place as their home at the same time.”
Note well this judge in a 13-page Statement of Reasons of very cogently argued judgment is well aware of leading cases of Swale, TD and Humphreys so this is not aberrant decision and he goes on to conclude on this successful Article 8 decision after much discussion of the issues that:
“The Tribunal therefore finds that Article 8 of the European Convention of Human Rights requires the Tribunal to interpret ‘occupies the claimant’s dwelling as their home’ as including children like A who have regular staying over contact with their parent. It is a matter of fact and degree as to what applies in a particular case but, for example, in A’s case it is a weekend once a month and blocks of time during all holiday periods..”
After a bit more discussion about approached to determining the issues the judge says:
The Tribunal is satisfied this test has nothing to do with who receives Child Benefit.
The above selective quoting is because it is taking some time to anonymise the full 13 pages of this Statement of Reasons and I will do so and publish them in full shortly and add to the bottom of this piece.
I have also deliberately included the references to Swale and TD and other leading cases to demonstrate to the HB experts and legal experts who read this that this is no ill-considered decision.
However I need to explain to the many tens of thousands of tenants and others who are not likely to be aware of the huge legal complexities of such an Article 8 challenge and to discuss what this decision means in simple terms.
Details
Father has 2 boys from 2 relationships and lives in the North East. At the time of the bedroom tax decision his eldest son then 15 and a half lives with him in a 3 bed property. The third bedroom stores the tenants weights and other stuff. His son from a previous relationship lives in Scotland yet comes to stay one weekend a month and during school holidays for weeks at a time and this younger son considers he has two homes. The 2 boys see themselves as brothers and both mothers are happy with the arrangement too – so credit to all involved.
However HB regulations being a blunt instrument only ‘allows’ for a person to occupy one home and so Dad is hit with a 14% deduction which the judge finds correct when the decision was made – and again emphasising that bedroom tax decisions are to be made on fact at the time the decision was made not 5 years before of what they may be in the future – yet says that in August 2013 the eldest son turned 16 and thus from that date the tenant is entitled to 3 bedrooms – 1 for himself, 1 for his adult son and 1 for the younger son who lives in Scotland (too) and is with dad one weekend a month and regularly for weeks on end in the school holidays.
This gives hope to every separated set of parents who share custody of their children and please excuse the expression but the absent father can have a bedroom counted for his visiting child or children. There are tens of thousands of bedroom tax affected households in this situation being charged the bedroom tax for what they rightly see as their child’s bedroom. Many view ‘human rights’ in a very simplistic moral context to say my human rights and that of my child are being taken away with the bedroom tax. – an argument that to now has in legal terms been a bit iffy to say the least (the Swale, TD and other cases I mention above).
Many councils have said also in crude simplistic terms it is only the parent who gets Child Benefit who is allowed a bedroom under the bedroom tax, not the ‘absent parent.’
YET this decision changes that and should encourage every ‘absent parent’ hit by the bedroom tax to launch an appeal on similar Article 8 grounds.
Some readers will recall another such judgment back in February that is similar from a case in Liverpool I reported here. This was also covered on the Nearly Legal site (here) which rather put the dampers on it as there Giles Peaker and Peter Barker cited the Swale and TD cases etc. I read these leading cases and still held an outside chance that because these ‘leading’ judgments were made without the huge difference the bedroom tax makes – that is the HB cut severely which hinders the absent parents financial ability to provide a bedroom for his or her child.
I commented to that effect below the Nearly Legal report on this, as did the knowledgeable Ruth Knox who I know well – and we both know the tenant in the Liverpool case too (and P I have lost your number and mine has changed so email me as I wanted yo to be the first to know of this.)
Yet the real praise needs to go to the tenant who took this case himself and what an absolutely fantastic job he did. His tireless efforts have now produced a hugely significant decision that will benefit a huge number of ‘absent parents’ who have contact with their children…as long as they get off their backsides and appeal!
The DWP is bound to appeal this decision as they are appealing every decision it seems, so if you are a separated parent then get your appeal in.
The tenant thanked me for my help today yet I did nothing and this is all his own work and my respect for his efforts is huge. One last point. This tenant did all of this work and won on an Article 8 ground when many experts thought this unlikely. This case is bound to be appealed to the Upper Tribunal and that tenant will require pro bono help from a barrister when this case is appealed as it undoubtedly will and I would think that will come to pass as I am aware that such representation has been achieved for the room size and usage lead case of CH/153/2014 which is great news for all bedroom tax winners too.
This was a decision of Judge Moss whose decision in Sunderland case SC236/13/02942 is rightly admired as being wonderfully argued and cogently articulated on the primacy of fact above all else and a decision that all admire and many say is appeal proof. Yet this case given how important this is will be given permission to appeal as it is of huge public interest and not just because SSWP Iain Duncan Smith will once again spit out his dummy when he reads this…Bloody judges eh!!
I will get the anonymised 13 pages up as quick as I can.
UPDATE Saturday 15 August – The statement of reasons is here
SPeye Joe (Welfarewrites) 
I will be extremely interested to see the statement of reasons. I ‘put the dampers on’ as you put it because the Liverpool case didn’t deal with the leading cases, leaving an obvious route of attack on appeal. It made it ‘per incuriam’, a decision made without knowing relevant issues. If this new decision does deal with those cases, that is certainly potentially significant, and I very much look forward to seeing how it does so!
Thought you were on holiday!!!
Yes will forward full copy and im anonymising all 13 pages of it. The quotes are direct from it and Ill email you a copy too – enjoy the break!
@ Joe – My praise as usual for your amazing sense of hope to dispel the helplessness felt by so, so many countrywide, however as good as all these outcomes from various and many “tribunals” may be, I can only stress users countrywide who by in large where they know of your work/s (like myself) are in awe of your accomplishments, BUT feel as I say as superb as all the various upper & lower tribunal wins are, many require this information in a manner in which ALL can fully understand the points, the likely changes (if any) and any likely outcomes.
I am frequently asked WHEN will all these various wins actually, pay off and then lead to outright physical wins for tenants, we are now 16 months + into active BT payment mode and all in (on just a guestimate) there has been but a handful of verified actual wins, re-payments and back-payments being paid out, unless anyone has “Actual” verified figures I have Not yet seen, don’t get me wrong as I say I am in total awe of all your hard works, I’m just having difficulties in defending such news devoid of actual understandable figures and info, as it was said to me but a few weeks back rather accurately I have to say and I quote “IF the actual wins, were of a high total number, for the tenants affected, if would be all over the media and FB etc, it’s not, doesn’t that tell you a great amount??” I have to again agree it does when viewed in this way!! The reality on the ground front lines are still not making great headway at least not that’s been made public knowledge.
Gov bodies MPs, Councillors, Lawyers, Barristers, Las, HOs, & Media sources alike, have ALL BEEN INVOLVED at some point, but as you well know as well as I do they collectively are all but totally useless, with the bulk, giving wrong information, or have done NOTHING to help even this far into the payment period, they likewise cannot or will not release actual numbers gaining success, surely only strengthening the belief that any wins are so small as to of been only great news for the small % of tenants actually affected in a very small number of cases.
We can only hope that one day very soon, that this will change, for the better good off ALL but until it does it still all seems like yet another injustice too all the many hundreds that are in similar or identical situations, to that of the case/s mentioned above? thus I suppose the real question is why is the outcomes so unpredicatble, IF the same question, and same situation exists why are ALL these cases NOT being dealt with in an identical fashion, and thus returning largely the same outcomes no matter where in the country you reside, as it’s NOT to my knowledge Bedroom Tax Via Postcode area in terms of legal responses.
Most tenants are to my knowledge of the opinion that IF BT is axed they shall be saved BUT only IF a new Gov axes it completely, (those with any knowledge know Labour how ever are ONLY the saviours of the Anti BT groups, anyone else can see how little they have done of late knowing they are also useless and not the route to salvation) although what is I have no real idea other than likely independence in Scotland.
(on a similar point most like myself are having difficulties with all the figures being banded about, which by in large unless that’s your line of expertise your not likely too know much about it, and shall only serve to confuse rather than ease or encourage any too make any changes off their own backs, as the available information is so confusing it’s still to hard to make sense off)
Thanks for your help all the same appreciated by thousands I’m sure, keep it up my friend.
http://www.facebook.com/groups/btukhomeswapforum – Facebooks First and original, still the best and full of informative on Bedroom Tax, Community, forum and portal
Reblogged this on sdbast.
hi joe do you think that a grand parent with a court order ( the childs father, my son is disabled and only sees him at my home when i have my contact every alternate weekends friday 4pm till sunday 4 pm plus a full week in most holidays) i have a court order signed by the judge and the mother would back my issue up. I didnt see him from the start of the bedrrom tax last year so couldnt originally use this reason but the court renewed the order last month so i have now to make my storeroom/study into a bedroom for my 6 year old grandson. i already lost at appeal court in feb 14 even though it wasnt used as a bedroom and had no bed in it. can i start a new appeal?
Hi The Wayward Nana. Yes, you can put a new appeal in, based on this years HB award.
You have good reasons for a ‘late appeal’
Gather as much information as possible. And use the above case, once we have full details.
You have nothing to lose!!
There are many Grandparents in your situation.
And, a win, would be of huge significance.
You are blogging on an extremely important topic- however your posts go into a lot of legal detail. Many of the people who need to know about these victories don’t have the legal knowledge or interest in detailed legal issues to follow your posts.
Have you considered summarising cases and reasons for victory and linking to full legal judgements for those who wish to read them?
You will find some cases on Nearly Legal.
And, there are Facebook Appeal groups, who have as many cases as possible, in their files.
As always, it’s an issue getting information out there for people to appeal.
We are still hearing, even after all this time.
Councils telling people they have no right of appeal!!
We have no idea of the amount of people, up and down the country.
Who are ‘just paying the BT’. Because, they have had no help from their HA’s or councils giving out the correct information.
Reblogged this on royboxer.
Great news Joe. Thank God for Joe Halewood and other grass roots activists. Without these people many many tenants would have given up the fight a long time ago. I agree Dougie Mc Pherson solicitors, housing associations et al have mostly been useless in advising and helping tenants affected by the bedroom tax. With each win and elation on the bedroom tax there has been some solicitor pulling the decision to pieces. Or advising you can’t win on usage, bedroom size etc. So thank you Joe Halewood and groups such as Reclaim and Juliet Edgar who gave good and positive advice advice to tenants at their wits end. These people have been willing to go the extra mile and have received no monetary, gain, in fact using their own meagre resources to help those in need. Real champions in my eyes and thank God for them.
Hi Joe, The statement of reasons you have put up are almost impossible to read. Would it be at all possible to do page by page as my eyesight, and I imagine several others, cannot read this properly.
Good job you are doing……..
The link opens the document in my browser, as it should in yours. At the top of the document page, not the browser window should be a toolbar; about halfway along is a ‘-‘ and ‘+’ button and a dropdown box to enlarge the document. Hope this helps.
Reblogged this on SMILING CARCASS'S TWO-PENNETH and commented:
All this legal mumbo-jumbo for what any man (or woman) in the street, even, I suspect those that agree with Bedroom Tax in principle would say from a common sense opinion OF COURSE AN ESTRANGED PARENT WITH A VISITING CHILD SHOULD BE ALLOWED A SPARE ROOM!
Personally, I am of the opinion a spare room is not a luxury. From the very outset I said the people making this law and those making the decisions will be have spare houses, much less spare rooms.