Womens Aid vanity project shafts the bedroom tax appeal for everyone else?

A court is not the place foe emotive argument and especially when that type of argument is a high risk vanity project for 0.06% of those affected by the bedroom tax and severely damages the chances of the remaining 99.4% of challenging the pernicious bedroom tax – No wonder IDS was laughing in Parliament when this case of a violence and abuse survivor hit with the bedroom tax on a panic room was raised there this week.

Many may find it surprising that I argue it was a travesty this case went to court and it should never have gone to judicial review – the fact it did explains why IDS was smiling as he must have known what a great decision to take it was FOR HIM!

Wednesday 18 November a judicial review took place over whether a panic room for a survivor of domestic violence and abuse should be deemed a bedroom for bedroom tax purposes.

It should never have gone ahead.

It was extremely risky and damaging to the challenge against the bedroom tax and the lawyers and Womens Aid who took it should both be ashamed of themselves.

It could and I believe will be catastrophically damaging to bedroom tax appeals for everyone else

Background

A panic room is a room physically strengthened and a former bedroom which became a panic room as part of a sanctuary scheme.  Such rooms are converted at huge cost and there is no contention that such a room is necessary.  The only contention is should the bedroom tax be levied on such a room.

Overview

There are two ways to argue that it should not have the bedroom tax imposed:

  1. A panic room is not a bedroom, or
  2. The tenant has a human right to a family which includes a right to a panic room

Challenges to the bedroom tax has also come in 2 main forms – the appeal at a tribunal at which (1) above would be the way to argue; or the judicial review route at which (2) was presumably argued in terms of discrimination.

Comment & Discussion

I don’t know whether the principal argument was (1) or (2) were argued or both. Yet reading the PR put out by the lawyers and by Womens Aid and given how all other bedroom tax JRs have been argued (and all lost) I assume the principal argument was the typical JR argument at (2) – that the policy is against the right to a family life and estimated 281 bedroom tax households with panic rooms suffer because of the crudeness of and discrimination within the policy itself.

The bedroom tax has seen JRs taken on such generic discrimination in the case of MA & Ors which lost at the High Court and lost again at the Court of Appeal with both these senior courts ruling the policy was discriminatory yet ‘justified’ by the availability of Discretionary Housing Payments (DHP).

Yet the bedroom tax has seen many successful cases by comparison on room usage and purpose – or a panic room is not a bedroom its a panic room stupid!!  That is what it is used for, it is critically, a reasonable alternate use of a room which could be a bedroom, it has not been used as a bedroom and a number of other arguments.

These room usage routes have proved successful and nothing is more evidence of that than the Carmichael case.

The Carmichaels were one of ten cases taken in MA & Ors which lost as the JR was argued on a generic basis – that discrimination applied to all disabled cases.  However, after losing at the High Court and Court of Appeal the Carmichaels case came before a bedroom tax First-tier Tribunal …and won.

The Carmichael case won even after the CoA handed down its judgment and the lowly FtT went against the far far higher CoA decision – as it was based on the individual facts of the individual case unlike the generic JR case.

That ruling sent immediate shockwaves through the legal ‘community’ as how stupid the FtT must be to go against the Court of Appeal.  Yet it then emerged that the Carmichael FtT argument was individual not generic and that argument was formulated by a barrister.  Oh what a clever barrister (correct) and what a brave (and also correct) lowly FtT judge then became the legal community view.

In short the legal community now realise that the best chance of winning a bedroom tax case is not the JR route, the discrimination argument route (2) but the tribunal argument (1) route and in this case a panic room is not a bedroom.  However, lawyers do not get paid for taking cases to the tribunal and so very rarely go there.  The lawyers know this and took the case for the money and in this case Womens Aid – in what is either incompetence or ignorance – were funding.  I can see the prestige that legal firm will get from winning a JR case and the resulting additional work and kudos it will bring, yet it does not give “A” the best chance of winning her case.

The estimate is that there are 281 women in panic rooms hit by the bedroom tax or about 0.06% of all bedroom tax cases and that is significant in terms of the success of this particular case at 281 cases in more than 340 local councils means less than one case per council. Surely the DHP system can ameliorate such injustices and discrimination be being less than 1 case per council will be uppermost in the minds of the High Court!

Should the JR fail, and if the legal argument is on discrimination and ECHR derived rights then it has a high chance of failure given the MA & Ors position of the senior courts saying a DHP justifies that discrimination, then no exemption will be granted for survivors of violence and abuse who have a panic room.

Yet if it does fail that has horrific consequences for bedroom tax appeals on room usage and purpose, past current and future cases.  In short if a panic room – which is an undeniably reasonable and unavoidable alternate use of a former bedroom – is a bedroom then it means in effect that once a bedroom always a bedroom for bedroom tax purposes.  Even if a former bedroom is converted to a walk-in bathroom or any other obvious reasonable alternate use it is still a bedroom for bedroom tax purposes.

The arrogance of the lawyers and Womens Aid in seeking to exempt 281 cases or 0.06% of all cases could result in 100% of cases of appeal on a reasonable alternate room usage being negated and denied – That is the extent of the incompetence and vanity in this case going to Judicial Review.

The lawyers know that the clients best chance of getting out of the bedroom tax imposition would be to challenge it at a tribunal.  That route has a far greater success rate than JR and that route is very much in the best interests of the individual client – tenant “A”

If Womens Aid had thought for a second, they would realise that far more than 281 survivors of violence and abuse could overturn the bedroom tax imposition at a tribunal appeal on grounds of alternate reasonable use of a former bedroom alone.  Even looking after their own narrow interests of domestic violence and abuse and not giving a damn about all other bedroom tax households Womens Aid could have helped far more survivors by advocating the tribunal appeal route.  Yet they clearly never thought.

I have advocated the tribunal appeal route from day one and even before the bedroom tax began.  I have become ‘associated’ with the bedroom tax appeal.  I put my professional reputation on the line by advocating the appeal route and it has been successful, very successful despite the fact there are very few who can take appeals for the bedroom tax tenant.  I reported here how a few grass roots groups I have worked with have success rates of 70% and more – figures any legal firm would die for and far higher than any JR figures any legal firm has. My own success rate is even higher on cases taken personally and the key is to argue in a written submission what is a bedroom by way of fact and in terms of size, usage or any other aspect which has a far higher chance than discrimination arguments.

A panic room is simply NOT a bedroom and that line of argument at tribunal would see the vast majority if not all tribunals come to that view.  Any room and former bedroom which has such a reasonable and necessary alternate use, a room agreed to be necessary by all of those involved in DV Fora including the Police, landlord and Uncle Tom Cobleigh and all while never being a shoe-in nevertheless has a huge chance of success for those reasons.  Housing law has long held precedents on the fact a rooms purpose can change during the currency of a tenancy.  Even HB regulations allow for and include as necessary a change in circumstances and a bedroom being converted out of necessity to a panic room is an obvious change in circumstances.

A panic room is simply not a bedroom for bedroom tax purposes – as if it is then a wheel-in bathroom conversion for a wheelchair bound tenant must be a bedroom also and that is patently ridiculous and false and a legal fiction.

Yet IF the JR fails the consequences for all bedroom tax appeals at tribunal on grounds of room usage, reasonable necessary alternate usage will see FtT judges hide behind such a ruling and say they are bound by it, which they are not but will undoubtedly happen.  Additionally the many bedroom tax appeal wins on usage grounds have inspired more tenants to appeal, as they should.  Yet the JR failing here will severely dampen that enthusiasm and bring a huge smile to the face of Iain Duncan Smith.

IF this JR, which should never have been taken in the first place, fails, then the impact on the successful bedroom tax tribunal appeal route is a seriously negative one.  I have huge scorn and anger for the lawyers and for Womens Aid in taking this JR route which is and always has been a risk too far.

281 cases they claim lets make a statement!  Yet the vanity pioneers never foresaw that in this reckless JR.

Should I have a go at the landlord who must have said this property had one more ‘bedroom’ than the reality and have a go at the council for believing this nonsense?  Yes of course but that same charade or sham of a decision making process goes for all current 471,887 bedroom tax decisions of which 99.4% do not concern a panic room.

I so hope I am wrong on how this case was argued and not for my sake but for the 99.4% of households or about 1.05 million men women and children have been shafted by the sham bedroom tax decisions.  I truly hope that the lawyers argued strongly as one FtT judge in Newcastle decided a few weeks ago that the council has a statutory duty under HB regulation B(13)(2) to determine what the term ‘bedroom’ is and means BEFORE they impose the bedroom tax deduction – a view I first raised in January 2013 and ahead of the bedroom tax coming into operation. That is a perfectly valid JR argument as anyone who has ever read the statutory instrument which enacted the bedroom tax can readily see:

Regulation B13 makes provision for the calculation of the maximum rent (social sector). The local authority must determine how many bedrooms are necessary for the claimant’s household, in accordance with the criteria set out in paragraph (5), and how many bedrooms the claimant has. The local authority must then determine the claimant’s limited rent.

That verbatim extract from the explanatory note to Si 3040 of 2012 makes it clear that the local authority, the benefit authority to be exact, must (ie a statutory duty)  consider and determine what a bedroom is before they then impose the bedroom tax.  That is the clear will and intention of the legislation.  No local authority could decide reasonably that a panic room is a bedroom. It is a panic room.  Yet while being a JR type argument it is perfectly valid, and so much cheaper, and so more likely to be successful if argued at a bedroom tax tribunal than at the High Court in a JR.

That route is better for the poor tenant who has had the bedroom tax imposed and whose needs have to have priority. It also must be better for the public purse, better for Womens Aid, it is better for all survivors of violence and abuse, it is better for all those who thankfully haven’t suffered violence and abuse…it is better for everyone.

The only benefit of this JR should it succeed is for the professionally vanity and PR of Womens Aid and its Chief Executive.  It is highly risky and with little reward even should it succeed.  If WAFE had put as much effort, thought and presumably resources into supporting survivors of violence and abuse to appeal the bedroom tax by the tribunal route then far more survivors would escape the bedroom tax than this flight of fancy ever could.

The fact this flight of fancy could, and regrettably I believe will fail if argued on discrimination grounds, means that thousands upon thousands more vulnerable people will find tribunal judges denying their reasonable alternate usage of a room that councils have lazily and expediently deemed to be a bedroom and imposed the bedroom tax upon.

A court is no place for emotive argument even when its particular acts involve domestic violence and abuse which by definition is a hugely emotive issue. That may be explanation for why this damaging and highly risky vanity project went ahead but it no excuse why it did. The fact it likely will damage the chance of thousands of other tenants who have had the pernicious bedroom tax imposed who legitimately appeal on a wide range of reasonable alternate room usage grounds is offensive.

I could be wrong and the High Court hand down a judgment which says unequivocally that a panic room is a reasonable use of a room that could be or was a former bedroom and provide a huge fillip for bedroom tax tribunal appeals on room use grounds.  Yet past cases such as MA & Ors said that DHP justify discrimination against 420,000 disabled tenants then they must surely follow that in this case with less than 1 case per council of violence and abuse survivors with a panic room.

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10 thoughts on “Womens Aid vanity project shafts the bedroom tax appeal for everyone else?

  1. I agree that tribunals are the better route, because on the specific facts of the individual case, but a success in the FTT only remains a success pending Upper Tribunal, both in the specific case and the principals (like the awaited room size UT decision). It does result in better cases to take to the Court of Appeal, though. Like Burnip/Gorry.

    But I think you overstate the risk of this JR. If brought on Art 8 and Art 14 discrimination grounds only, there will be no finding as to whether the room is a bedroom or not, so nothing in the judgment to hinder the room use argument in the FTTs. And whether it is a bedroom or not could not be judicial review grounds, because not a public law issue.

    So don’t panic!

  2. Giles, I disagree and in a practical sense.

    I fear, and I think correctly, that this JR will fail and FtT judges will extrapolate from it if a panic room is a bedroom then so is any room and the once a bedroom always a bedroom position will hold sway and even the most reasonable alternate use of a room will see appeals fail.

    Many tribunals hide behind senior court decisions and many have and still extrapolate that DHP justifies any discrimination regardless of the individual facts of individual cases and as a matter of course dismiss all such cases in this cursory way – the hide behind as I term it.

    As MA & Ors ruled DHP ‘justified’ found discrimination to up to 420,000 disabled households I fail to see how it can say DHP does not justify discrimination to a mere 281 cases

  3. On the outcome of the JR, you may be right – though I have no idea if DHP is actually in payment in that case, which could be a factor.

    But if the Tribunals look to the judgment as confirming that a panic room is a bedroom, that would be wrong – unless the Admin Court does something very surprising in the judgment. Look at it this way, MA did not stop FTTs finding disability discrimination, including in the Carmichael case, as you note.

    At worst, it would simply mean adding a brief line to tribunal appeal grounds making clear that this JR did not decide the issue of whether the room was a bedroom (assuming it doesn’t. I doubt it very much, but you can never be certain).

    1. What i’ll be looking at is how this demolishes govts DHP argument that they are fobbing us and other cases off with if this case is successful. Of course Judges may look for a technicality of some sort rather than finding against the Governments DHP argument

  4. Do we know for sure that the panic room was the alleged spare bedroom in this case? From the solicitors’ press release we know that (1) the house has a panic space and (2) the Council has decided there are three bedrooms and the claimant only requires two, but I have not found anything saying definitively that the third bedroom was the panic space. The Guardian report said it was, but I think that was just their assumption, they didn’t reference it.

    I wonder also whether the JR grounds might not be the usual human rights v DHP (which is now becioming a well-trodden path to the same destination every time), but more about irrationality: a huge amount of money has been spent adapting this home, another huge amount would have to be spent adapting any alternative home, all to save a measly few quid a week. How many years would it take the state to break even, if indeed it ever did? It makes no sense in public fincance terms. That sounds more like a JR case. If the issue was whether the panic space is a bedroom, I cannot see how permision to bring the JR would have been given as there is a clear alternative remedy.

  5. Giles – What tribunal judges should do and what they actually do..ah let’s just say these are often 2 separate things! Aware of many similar cases to Carmichael case and judges said no we are bound by MA & Ors, and regardless of any individual fact basis and in one case refusing to even consider this.

    Peter – No we don’t as it transpires. I read a New Statesman piece which suggested the panic room was actually a loft / attic room and additional to an alleged spare bedroom and that article was evidently from a long conversation between journalist and lawyers. Yet how an attic room is somehow a bedroom is another matter altogether and how the bedroom tax came to be applied to it a further matter! Subsequently, and from a better source, I have also been told there is no 3rd bedroom used as a panic room so the ‘panic room is not a bedroom but a panic room’ argument can’t be run, yet no more than that.

    Irrationality? Can see the point you are making clearly, yet if MA & Ors says DHP ‘enough’ for hundreds of thousands of ‘discrimination’ cases then surely its must be (legally) enough for 281 or less than 1 in each local authority.

    My real fears as as I say above that tribunal judges may (and likely will regrettably) misinterpret this case as being if a panic room is a bedroom then all rooms capable of being a bedroom are bedroom and thus all ‘room usage’ grounds however reasonable the alternate use is or indeed necessary, will not be given just consideration – and one reason why the overt emotive arguments WAFE put out and get widespread coverage for is a concern

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