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.
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