The Upper Tribunal in a 3 judge decision both kicked the decision making process of the Tories bedroom tax policy in the backside exposing it to be a sham as I have always maintained AND and the same Upper Tribunal decision found a legal way to justify the powers of the First-tier Tribunal and the Upper Tribunal.
Both of these are important and correct decisions and both cause major problems for the bedroom tax policy and for ALL social security benefit decisions made by government and not just in Housing Benefit of which the bedroom tax is one part.
The decision is high on legalese and the anti bedroom tax activist, the disability activist and anti Tory activist should not get too carried way as the Carmichael case – when a couple cannot share a bedroom due to medical needs – only sees 210 cases at this stage tied to it and 210 out of 420,000 means it does not affect 99.5% of bedroom tax cases.
The tabloid reports on this sensationalise the decision and claim it is a huge win for disabled persons which it is not and as much as the disability lobbies want to believe this is a seminal decision for disabled persons it simply isn’t.
The housing press (Inside Housing here) wrongly state this is a disability decision when it is not a disability decision at all and they do so to deflect the complicity of social landlords in the bedroom tax decision making process which is what this decision is ALL about; and bedroom tax being a Housing Benefit decision is between two parties only of claimant (tenant) and decision maker (local council HB department) and landlords are a third-party to all bedroom tax decisions.
The decision is all about process and what powers the tribunal service has and has bugger all to do with disability or landlords.
So what does this decision say? And what does it mean?
Cutting through the legalese and high law of the decision’s 22 pages is not easy but it can be distilled into its opening comments and the seminal paragraph 67, so let’s give it a go.
I have underlined two parts in red and the underlining in black of ‘without‘ is the emphasis of the Upper Tribunal.
The UT said the decision arrived at by the original First-tier Tribunal was correct yet they arrived at it by the wrong (legal) route and the UT is permitted to replace that decision and cites the reference for being able to replace the decision as being section 12(2)(a) of the 2007 Act above.
The three numbered points explain that this is ALL about process and procedure and hence my warnings (or should that be alarm bells?) to the anti bedroom tax, anti Tory and disability lobbies not to get carried away with merit or morality.
This is a cold fish emotionless legal judgement about process and what powers the tribunals have and nothing more!
Housing Benefit Regulations (secondary legislation) dictates what process the decision makers (the local council HB department and the First-tier Tribunal) have to follow and this is a linear process.
Firstly, the decision makers have to decide what the maximum eligible rent is or how much of the gross rent charged they are allowed to pay under the HB regs. This was the case before the bedroom tax regulations and will still be the case if the bedroom tax is abolished and there is nothing contentious in this.
Secondly, the bedroom tax regulations then says the decision maker need to make the deduction from this maximum eligible figure of 14% if it appears the claimant has one spare bedroom and of 25% if they have two or more spare bedrooms … YET … No public authority which includes both decision makers is allowed to make a decision that contravenes the human rights of the tenant as the claimant.
Thus the Upper Tribunal says at 2 that decision maker must not deduct the bedroom tax 14% or 25% deduction for this reason and to do so is unlawful at paragraph 67. (*)
Once your local council decision maker knows that applying the bedroom tax regulations contravenes the human rights of the tenant claiming Housing Benefit they cannot impose the bedroom tax as it is unlawful for them to do so.
This is where the decision-making process of every local council is exposed as a sham that I have always maintained and first stated back in early 2013, as each local council makes the decision WITHOUT knowing and without even seeking to find out who they are applying the decision to.
Every local council has said we have to do what the Secretary of State Work and Pensions – the SSWP or DWP in short – tells the they have to do under guidance.
This Nuremberg Defence of the local council decision maker is wrong in law says the Upper Tribunal as no decision maker can lawfully make a decision that breaches the human rights of the person the decision concerns as they are public authorities.
Councils say they were compelled to follow the bedroom tax guidance (the highly prescriptive A4 of 2012) yet this is a legal fiction and always has been. Councils also say that they could not possibly know the details of each claimant and that it would cost too much for them to find out and thus they all merely imposed the bedroom tax out of this cheapest cost method hoping very few would challenge it.
This Nuremberg Defence taken by all local councils is and always has been UNLAWFUL or in lay terms total bollocks as I have always maintained and the Upper Tribunal at paragraph 67 say the same thing:
Councils are correct that it would cost them too much to make a lawful decision and they have been put in this position by the legally incorrect dictats they have received in the HB guidance from the DWP. Both of these typical local council views are correct and the DWP ‘imposed’ bedroom tax decision making process from the A4/2012 HB circular is a sham … yet councils still imposed the bedroom tax deductions and did so unlawfully.
Whether the wrongs of each individual case were the complex human rights issues of the Carmichael case or the much more simple issue of whether a room is or is not a bedroom, every council chose to impose the bedroom tax deductions because they were the cheapest cost option for the local council and irrespective of what this meant for the tenant as the claimant.
Given in some cases this has reportedly led to suicides and has undoubtedly led to evictions the offensive scale of that imposition by local councils is there for all to see. The bedroom tax decision-making process has always been a sham.
Again I restate the numerous disability activists and lobbies should take caution and not equate discrimination with a human rights breach as the two are not the same. The Carmichael case was one of seven ‘discrimination’ cases that went before the Supreme Court yet 5 of those in which discrimination was found were also found not to be a human rights breach.
The simple and stark reality is Carmichael and Rutherford the two Supreme Court successes affect a very tiny percentage of the overall 63% of all bedroom tax households that include a disability.
If the 63% figure for disabled bedroom-taxed households still applies which is highly probable then there are around 265,000 disabled households hit by the bedroom tax and the Carmichael and Rutherford similar cases may amount to less than 1% of all disabled bedroom taxed households (or 2,650) and so 99% of disabled bedroom-taxed households are not helped by either the Supreme Court decision or this Upper Tribunal decision in Carmichael.
Disability lobbies and activists will not like to read that yet that is the reality.
The best chance of appealing the bedroom tax decisions by far is not whether the housing need element of the decision is discriminatory or breaches human rights, but the other key element of the decision in what is or is not a bedroom, or more specifically a Nelson-compliant or post Nelson-compliant bedroom such as size, layout, configuration and so on.
I am still strongly of the view that at least 15% and as high as 20% of all landlord claimed bedrooms are not Nelson-compliant, and that is around 63,000 to 84,000 wrong decisions that are eminently appealable with the majority being on size and layout.
This perhaps explains why Inside Housing is keen to focus on wrongly saying this UT decision is a disability decision as it deflects the complicity of social landlords charging rent on between 63 – 84,000 alleged bedrooms that are in lay terms mere box rooms and in legal terms non Nelson-compliant bedrooms.
IF social tenants with these box rooms were able to appeal, which mostly they are not, and if they did so it would expose that UK social landlords have been charging tenants and/or the HB bill for many years on rooms that were not bedrooms as they claimed – a bit like landlords charging for a Rolls Royce while they offer up a Lada!
The disability lobbies have taken the fight to government over the bedroom tax and they deserve much credit however they have taken over the challenge through what are now legally seen as emotive arguments such as discrimination when they should have focused on size and other non Nelson-compliant challenges as this would take many more disabled households out of the pernicious and ill-conceived bedroom tax.
This UT Carmichael decision is as I state a cold fish emotionless judgement as they all are at tribunal and tribunals have no place in bedroom tax appeals for emotion and emotive argument has formed the basis of too many bedroom tax appeals.
The UT decision which can be found here and is not an easy read though the disdain it has for DHPs and especially for the DWP argument that the First-tier Tribunal could only direct Jayson Carmichael to another court to claim damages (!!!) and could not overturn the decision which it dismisses with compelling argument and legal authority.
The DWP in seeking this appeal of the First-tier Tribunal decision was and is 99% political and saving political face and explains why the Upper Tribunal (nominally) granted permission. The UT then in this decision chaired by its President strongly assert in law that tribunals do have the powers to overturn decisions and should do so and whether this jurisdictional point is because of secondary legislation or whether they are allowed to read in ECHR rights of claimants.
Claimants are entitled to benefits and the UT 3 judge decision asserts that the tribunal service is entitled to rule that claimants get what they are entitled to and rule that way rather than fob them off to another court to seek legal remedy, which claimants cannot afford and which destroys any purpose (overriding or otherwise) the social security tribunals could ever have and which the DWP argued here tribunals should not have.
The DWP will seek to appeal this decision as it impacts on all tribunals powers to overturn any social security benefit decision (eg DLA, ESA, PIP, JSA and so on) and provide remedy. First-tier Tribunals for all social security benefits are called Social ENTITLEMENT Chapter tribunals (SEC) as they deal with er …. ENTITLEMENT and rightly give remedy!
Scurrilous politicking by the Tories – an absolutely bugger all to do with disability or merit or anything else.
(*) As a necessary aside the Human Rights Act enshrined the European Convention on Human Rights (ECHR) into law and the ECHR is bugger all to do with the European Union and in fact predates it and the UK signed up to it in 1951 well before the EU was created in the Treaty of Rome. So this is nothing to do with those bastards in Brussels as the Brexiteers perceive them!