Judge says bedroom tax “housing need” is at LA discretion, not rigid!

“Oh Carroll, Knowsley is a fool….”

sedaka

A potentially very significant indeed first tier tribunal bedroom tax win happened late this afternoon (Friday) in Liverpool.  I have no other knowledge of this win other than a clearly very hasty report on the local Radio City website.

The case itself was widely highlighted on social media nationally including the Daily Mirror yet first appeared in the Liverpool Echo here and as is the want of the press it focused on the amorality and human interest angles and here I briefly look at the factual / legal issues.

The property was claimed to be a 4 bed yet 1 alleged bedroom had been discounted as it contained a through ceiling lift.  Another ‘bedroom’ was discounted as a room for an overnight carer was granted.  This left 2 purported bedrooms and the paralysed tenant and his partner and a 1 bed housing need according to the HB regulations and thus a 14% bedroom tax cut was applied by the (less than bright) local council, Knowsley MBC.

Yet the tenant has to sleep in a specially supplied hospital bed and his partner cannot sleep in that and it appears there would no room for a separate bed in that room.  Also, the male overnight carer is in an adjoining room which has a glass door so the carer can observe the paralysed tenant, which would also mean the male carer would be watching the paralysed tenant’s partner too.

So many practical and obvious reasons why the forced sleeping together which the HB regs dictate are wrong and council decision makers think are absolute and inflexible.

Here is what the Radio City news article says:

The family of a ex Liverpool academy footballer left with life changing injuries after a 50 footfall have spoken of their relief after fears penalised by the Government’s so called ‘Bedroom Tax’ were quashed at a tribunal.

27 year old Neil Carroll from Huyton was left with severe brain damage after falling from the Rocket flyover in August 2012. Since then, he’s requires round the clock care – as he learns to walk and talk again.

He lives in a specially adapted house with his girlfriend Kathyrn and a live in carer.

After the Department of Work and Pensions ruled he has a spare bedroom, he did face the possibility having to pay an extra £21.76 a week. This charge is covered through Discretionary Housing Payments which have to be reassessed every year. His family claim that help is not guaranteed when they come to reapply in March, and it’s a charge they can’t afford.

Today a tribunal judge has ruled that their house isn’t under occupied and there will be no change to their housing benefit.

Neil’s mum Cathy said: “Absolutely thrilled to bit, finally someone has had a bit of common sense”

“He’s ruled that they can’t share a bedroom because of Neil’s complex’s needs.

That is the only reference as to why the decision has been made and all we can go on.  There is no decision notice as yet and obviously no detailed statement of reasons but the (brave) judge has decided – and correctly so following Fife – on the relevant circumstances of the individual case as was the intention of Parliament as the Fife decision says clearly at [54] :

We also agree with the Secretary of State that the choice by Parliament of a test using an undefined familiar or ordinary English word supports the view that Parliament intended to allow decision makers to take account of all relevant circumstances on a case by case basis.

The primacy of individual fact and that is for the decision maker to assess and also to assess what is and is not a relevant circumstance is for the decision maker too.

The decision maker is the local council firstly and then becomes the tribunal if a decision is appealed, yet the fact remains that the Fife 3JP legal precedence says that each and every local council housing benefit department DOES have discretion in each and every case and is NOT constrained at all.

Yet all local council HB depts or the contracted-out partners who administer HB for them HATE this legal fact and legal precedent and deny this is the case and because it costs them money to investigate each case on an individual basis rather than the your landlord says its a 3 bed therefore it is a 3 bed and our hands our tied guv basis which costs them bugger all to make the decisions.

The rest of the Radio City news release is padded with nonsense and includes this legal fiction from MBC Knowsley:

“It is important to note that the council is not responsible for deciding what is classed as a bedroom – this is dictated by the policy of the Government.”

No No Fucking No Mr or Mrs Knowsley MBC anonymous spokesperson that is bullshit as I have explained above.  You have discretion to determine what is and is not a bedroom and always have according to the legal precedence which need I remind you is much higher than any guidance circular revealing IDS’s often warped slant on legal cases and bedroom tax issues.

What this decision also reveals is that the First tier tribunal judge also says is at the decision makers discretion is the other side of the bedroom tax equation – discretion over the housing need as expressed by the number of bedrooms.

This is a subtle nuance and development as previously discretion for the decision maker (whether council of FtT judge) tends to focus on the number of bedrooms not the claimants housing need.  For example a claimed bedroom is far too small and is not a bedroom or a host of other reasons why a disputed room is NOT a bedroom.

This case reveals that every local council has discretion in determining the housing need of the claimant and that is significant as there will be many couples who for one valid reason or another cannot sleep in the same bed or same room.  What this judge has done is say if the individual facts of the individual case reveals an obvious or unavoidable need for a couple to sleep in separate rooms then their housing need is for 2 bedrooms and not one.

In summary – the facts as known here mirror the case of Jayson Carmichael who is one of the 5 claimants in the MA & Ors case due to be heard by the Supreme Court on 1 March 2016.  His wife has to sleep in a hospital bed and he cannot sleep in it and there is no room for a single bed for him in that bedroom so he has to sleep in another room – for which he is charged the bedroom tax.

The Carroll case from today – regrettably for the family involved – will undoubtedly see the DWP seek and get the decision set aside and stayed to the MA & Ors case before the Supreme Court in March.  If the Carroll case had lost today, then they would have applied for the same set aside and stay and have had it granted.

I have no idea if the Carroll’s were represented by anyone or had sought or received legal advice ahead of this case and so have no knowledge of any human rights grounds that may have been used in addition to the practical issues I outlined above gleaned only from previous media reports.

Still a FtT judge ruling that the housing need side of the bedroom tax equation is not rigid and a couple forced by relevant circumstance to sleep in separate bedrooms adds 1 bedroom to the housing need is a very interesting development indeed.

Will update if and when decision notice and SoR lands and a major hat tip to whoever took and/or advised on this case

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