Claimants can bring benefits appeals in First-tier Tribunal

A First-tier Tribunal decision not to impose the so-called ‘bedroom tax’ on a couple, one of whom has severe disabilities and therefore needs a second room for medical reasons, was correct but by the wrong route, an administrative court has ruled today.

The decision means that individuals who wish to challenge arbitrary decisions made to their benefits claims will continue to be able to uphold their rights in the FTT.

Jayson Carmichael, whose wife Jacqueline suffers from spina bifida, successfully appealed a Department for Work and Pensions decision at the FTT in 2014 that sought to reduce their housing benefit by 14 per cent because of the ‘spare room subsidy’, which was introduced through regulation B13 – an amendment to the Housing Benefits Regulations 2006.

The government appealed the ruling, arguing that the remedy was not one that could be given by the tribunal, which based its decision on human rights grounds. The appeal was stayed until after the Carmichaels contested the legality of the government imposing the bedroom tax on people with disabilities, which the Supreme Court declared unlawful in November 2016.

Despite its defeat in the Supreme Court, the government decided to pursue an appeal against the FTT’s ruling. However, today’s judgment, delivered by Mr Justice Charles, Judge Lloyd-Davies, and Judge Wikeley in the Upper Tribunal (Administrative Appeals Chamber), confirmed the outcome reached by the FTT in 2014 was correct but by the wrong route.

The judgment stated: ‘Our conclusion is that the First-tier Tribunal arrived at the correct outcome in this appeal but by the wrong route. The tribunal sought to avoid a breach of the claimant’s convention rights by reading words into regulation B13(5)(a) of the Housing Benefit Regulations 2006 (SI 2006/213; “the 2006 Regulations”) under section 3(1) of the Human Rights Act 1998. It was correctly common ground before us that the interpretative process was not open to the Tribunal, since it went beyond any interpretive reading permitted by section 3(1).

‘Its effect was to give the claimant an entitlement to two bedrooms under regulation B13(5), such that no 14 per cent reduction in his housing benefit entitlement applied. What the tribunal should have done was to direct the local authority to calculate the claimant’s housing benefit entitlement without making a deduction of 14 per cent for under occupancy to avoid an unlawful breach of Mr (or Mrs) Carmichael’s article 14 rights… The result is the same, namely that no deduction operated.’

Had the government’s appeal been successful, and the FTT’s decision overturned, then the Carmichaels and those in a similar situation might have been unable to bring their benefits appeals to the FTT, as the FTT would no longer have been able to provide a remedy.

Jayson Carmichael said: ‘It’s an absolute disgrace that disabled families have to put their lives into fighting for human rights in 2017. We hope our fight, during the election campaign, draws voters’ attention to this.

‘We also hope to ensure that everybody in our situation is paid their full entitlement to housing benefit, a position that we were able to secure by using the Human Rights Act to challenge the bedroom tax.’

Lucy Cadd, a human rights solicitor at Leigh Day, who represented the Carmichaels, said: ‘While this is a complex legal battle, which has been ongoing for a number of years and has straddled several courts, the impact of the bedroom tax on people has been clear. We believe this case is further evidence of a government which has little concern for equality.’

The government amended the regulations from 1 April 2017 so that claimants are no longer penalised for having an extra bedroom when a disabled child or disabled non-dependent adult requires an overnight carer or where couples cannot share a bedroom because of a disability.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress