Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 13 November 2013 at Newcastle under reference SC228/13/03982) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.

The decision is: the claimant’s benefit is to be calculated on the basis that on and from 1 April 2013, she is entitled to only one bedroom for the purposes of regulation B13 of the Housing Benefit Regulations 2006 with the result that her entitlement to benefit is reduced by 14%.

Reasons for Decision

A.        The issue

1.         This is the lead case before the Upper Tribunal on the application of the so-called bedroom tax for social housing to the shared residence of a child. That ‘tax’ is actually a reduction in the amount of housing benefit that would otherwise be payable to take account of the fact that the claimant’s dwelling has more bedrooms than their family requires. The Administrative Court dealt with the human rights issues that arise in such cases in R (Cotton and others) v Secretary of State for Work and Pensions and others [2014] EWHC 3437 (Admin). Males J decided that a failure to make provision for shared residence could involve or amount or to a violation of Article 8 of the European Convention on Human Rights, but only in exceptional circumstances. This case deals with an approach that some tribunals have employed to assist claimants faced with a reduction in their housing benefit. I understand why tribunals have wanted to assist claimants who found themselves in the predicament of having their benefit reduced despite their need to retain a bedroom for when their child is staying, but the method used is based on a misinterpretation of the legislation.

B.        The facts

2.         As far as I know, these are not in dispute.

3.         The claimant lives in a council property with two bedrooms. She was awarded housing benefit and council tax benefit from 2008, at which time her son was living as part of her household and she was receiving child benefit for him. In January 2012, the local authority superseded the decision awarding benefit to take account of the fact that the claimant’s son was now living with his father. From 1 April 2013, the local authority further reduced the award by 14% on the ground that the claimant needed only one bedroom under regulation B13 of the Housing Benefit Regulations 2006. By that date, the claimant’s son was the subject of a shared residence order under which he spent alternate weeks with his mother and father. His father was receiving child benefit and tax credit in respect of him, although by agreement these were shared between the parents.

C.        The appeal to the First-tier Tribunal

4.         The tribunal allowed the claimant’s appeal. The tribunal declined to find that the claimant’s son occupied her home for the week he lived with her under the residence order. This, the judge said, would cause onerous administrative consequences if local authorities had to recalculate entitlement to benefit every week. Instead, the judge found that the claimant’s son occupied her dwelling on a continuing basis with temporary weekly absences. For completeness, he found that the son occupied his father’s home on the same basis. The judge treated ‘dwelling’ and ‘home’  in regulation B13 as undefined ordinary words that he had to apply to the facts of the case. The reality was that the son was cared for equally by his parents and that the payment of benefits was structured as it was merely for administrative convenience. The son was able to have more than one home, to live in more than one household and to occupy more than one property on a normal basis.

D.       The appeal to the Upper Tribunal

5.         I gave the local authority permission to appeal to the Upper Tribunal and invited the Secretary of State to join as a party, which invitation was accepted. The Secretary of State has made a submission supporting the appeal and the local authority has adopted that argument. The claimant, despite being invited to do so, has not taken part.

E.        The Secretary of State’s analysis

6.         I accept the Secretary of State’s argument that the tribunal’s approach was based on a misunderstanding of the structure of the housing benefit legislation. The flaw was to treat the meaning of the words used in regulation B13(5) as freestanding, when they had to be read in the context of other provisions.

7.         Regulation B13(5) provides that a claimant is entitled to one bedroom for each of the categories of person listed ‘whom the relevant authority is satisfied occupies the claimant’s dwelling as their home’. A child is one of those categories, which is defined as ‘a person under the age of 16’ by regulation 2(1). That provision has to be read, not in isolation, but in the context of the housing benefit legislation as a whole.

8.         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’.

F.        Applying that analysis

9.         The claimant occupies her dwelling as her home under regulation 7(1)(a). Accordingly, she is entitled to one bedroom for herself under regulation B13(5)(b). Her son would be entitled to a second bedroom for himself under regulation B13(5)(e), if he were occupying the dwelling as part of the claimant’s family: regulation 7(1)(a). That depends on whether his mother is responsible for him: section 137. This depends on how much time the son spends with each parent and who received child benefit in respect of him. As he divides his time equally between his parents and as his father receives child benefit in respect of him, his mother is not responsible for him by virtue of regulation 20(2)(a). The result is that the son does not qualify for a second bedroom under regulation B13. The local authority was right to reduce the claimant’s entitlement by 14% under regulation B13(3)(a). The tribunal made an error of law by misinterpreting the legislation. I must therefore set its decision aside. As there is no dispute about the facts and there can be only one proper application of the law to those facts, I have re-made the decision to confirm the local authority’s application of regulation B13.