A First-tier Tribunal judge has gone against the recent Upper Tribunal decision that a child can live in two homes and gives hope – and very well reasoned legal hope – to all separated couples and especially to the ‘absent parent’ most often the father who is hit with the bedroom tax for the bedroom his child uses.
There are very subtle legal nuances in this 7 page statement of reasons attached below and this necessitates a rather lengthy blog even by my standards!
In summary it was the universal view that the Upper Tribunal case of  UKUT 34 (AAC) (22 January 2015) saw Upper Tribunal Judge Jacobs use HB regulation 7 to deny a room for the child in shared care cases and shut the door firmly on shared care cases in the bedroom tax. Yet the legal reasoning is wrong according to FtT Judge A N Moss in a case heard on 30th April for which the statement of reasons is below and states precisely why the Newcastle UT case is wrong.
To explain it is easier to begin with why the Newcastle UT case said the shared care child is not entitled to a bedroom in the bedroom tax and I have cut and pasted Giles Peaker’s report of this on the Nearly Legal site:
The Upper Tribunal found that Regulation B13(5) – ‘occupies the dwelling as their home’ had to be read in the context of the Housing Benefit Regulations overall.
“Regulation 7(1)(a) is part of that context. It provides that ‘a person shall be treated as occupying as his home the dwelling normally occupied as his home … by himself and his family’. Section 137(1)(c) of the Social Security Contributions and Benefits Act 1992 defines ‘family’ as ‘a member of the same household for whom that person is responsible and who is a child’. This leads to regulation 20(2)(a), which provides that when ‘a child … spends equal amounts of time in different households … the child … shall be treated … as normally living with the person who is receiving child benefit in respect of him’.”
Had to be read in the context of HBR is correct yet that is precisely what Judge Jacobs did not do in the Newcastle UT case.
He (a) failed to spot that regulation 7 has been ‘amended’ by the revised 2012 regulation which brought in the bedroom tax; and (b) his outdated argument is predicated on this flawed and outdated reading of regulation 7.
“The occupation as his HOME…by himself and his FAMILY” is a false interpretation of regulation 7 – that is the key issue. What the UT judge missed is that the bedroom tax – the amended 2006 HB regulations enacted by Statutory Instrument 3040 in 2012 changes the interpretation of regulation 7 and also find it wanting.
The bedroom tax allows a bedroom for a lodger and in fact actively encourages that. It was also parliament’s intention to include a lodger as part of the home and the bedroom tax revised regulations B13(5) allows a bedroom for a lodger.
Yet a lodger is not part of the claimant’s household or part of the claimant’s FAMILY…and the lodger still sees where he lives as his HOME.
As such limiting the bedroom tax as the UT judge did in the Newcastle case to the claimant …and his family was and is fundamentally flawed in law as it fails to take into account that ‘home’ is NOT limited to the claimant and his family alone but home includes all of those mentioned in regulation B13(5) which includes any adult such as a lodger and any child for whom the dwelling is his or her home.
Regulation B13(5) from SI 3040 of 2012 which enacted the bedroom tax
Note well that the amended HB regulations do NOT limit who occupies ‘home’ to only the claimant and his family but to all whom the relevant authority (the local Council HB department or the Tribunal) is satisfied occupies the dwelling as their home.
A lodger would come under 5(b) a person who is not a child and as in this case the child of shared care arrangements would come under 5(e) a child…providing that the Tribunal is satisfied the child does as a matter of individual fact see his father’s house in this case as one of his two homes.
That final point is hugely significant as the statement of reasons here shows the Tribunal establishes very clearly – as a matter of individual fact in this individual case that the child does have two homes. The SoR is at pains to point out this is a matter of well established and practical fact that the child does have two homes and occupies them both.
[Aside – this also negates Marchant? But I will leave that for other discussion sites]
The case also states very cogently that the Newcastle UT case failed to adopt the correct test (see 22) and argues powerfully that the relevant statutory test is ‘home’ and not household as the Newcastle UT wrongly limited the test to by saying the claimant and his family or ‘household’ which is a term that does NT appear in the amended 2012 HB regulations which brought in the bedroom tax. Judge Moss is very rigorous in his argument here and details his legal view from  all the way to  with many key points along the way.
The legal argument will provoke discussion which I will leave to others to moot and the critical point is that this case re-opens the door for all of the separated parents with shared care arrangements to argue that the child or children in such shared care cases are entitled to a bedroom for bedroom tax purposes.
Yet ONLY if, as in this case, you can persuade the tribunal that the child or children do have two homes as a matter of practical individual fact. In crude terms if you are the father who has left and your allegedly spare bedroom has Disney’s Frozen wallpaper and a pink duvet and a wardrobe full of your 8 year old daughters clothes as well as evidence such as detailed formal and informal arrangements for when she stays with you, THEN the door that the very legally questionable Newcastle UT ruling closed is flung wide open by this case.
This could affect tens of thousands of cases of shared care arrangements of children in the bedroom tax and bedroom tax appeal groups will rightly latch onto this as they should. As will the tiny few CABx who take bedroom tax appeal cases.
It should also be seized upon by every social landlord and they should start funding and supporting their tenants to make similar appeals and indeed that is where this case comes from.
I was engaged by Coast & Country Housing Association to help their tenants appeal the bedroom tax which involved advising and supporting their in-house Welfare Team and their Tenants Working Group on appeals including the drafting of the key written tribunal submissions used in this and all other cases for the range of appeal grounds.
All social landlords should have done the same and not only has the initial support more than paid its way through appeal wins, (unsurprisingly) councils magically finding DHPs and overnight care exemptions for tenants appealing that they did not before.
More importantly is that when direct payment of HB goes to the tenant, then CCHA tenants will remember their landlord stood behind their plight and so far greater levels of rent payment and prioritisation of rent payment will flow. CCHA made an extremely clever business decision in supporting their tenants and did not just take a moral stance on the issue.
They deserve a major hat tip for this and have shown the way for all other reputedly social landlords including the many misguided ones who believed they would lose out if a tenant won at appeal. They don’t as the rent level remains, the tenant and landlord get more in HB, they get a backdated payment too and there is no asset loss at all when the Tribunal rules the alleged 3 bed is in fact a 2 bed or when they rule as here that a separated dad has a right to an additional bedroom for his child in the bedroom tax regulations when read correctly.
Privately many social landlords expressed wanting to support their tenants to appeal yet the overwhelming majority failed to do so. Their tenants will not forget that. Even when those majority of allegedly social landlords took the initial view of the CIH that they should not support tenants to appeal, they still did not change when the CIH did a U-turn and advocated they should support their tenants to appeal it in a good practice paper CIH put out in January 2015.
Yes hindsight is easy but now so many social landlords wished they had supported their tenants instead of a red-inked bombardment of pay your rent or else.
As well as the direct payment issue above, the fact that all social landlords now need their tenants to freely give them precise details on all their welfare benefits for benefit cap purposes, is another reason why not supporting those people who you call your ‘customer’ then treat with such disdain was bad practice and a chronic lack of forethought or indeed any thought.
Those comments are neither a plug for my services or saying I was right all along its just putting this good practice into its correct context and supporting your tenants in the bedroom tax was always good business practice and a no-brainer for all social landlords. Not doing so will cost your bottom line so much more for the same reasons.
Yes this is only a FtT decision but it does say precisely why the scant Newcastle UT decision is legally unsound and provides a whole host of supporting arguments for all bedroom tax appeals involving shared care of children cases.
The timing of this release coming just after the election which guaranteed 5 more years of the bedroom tax (though the case was heard a week before the election) could not be better for social tenants and, if they finally see the light, for social landlords. If will cheer up and put fire back into the belly of the bedroom tax appeal group after they received the wrong election result (did any party other than the Tories support it?)
Finally, a major hat tip to Claire and her team at CCHA who presented this case, just as important as what was argued, and to Judge Moss for an extremely cogent statement of reasons that tens of thousands of separated parents right across the country can and will benefit from when they appeal the bedroom tax decisions they have received.
The Statement of Reasons
That fire back in your belly yet bedroom tax campaigners? It should be! Will other landlords follow suit? Ah……!