Upper Tribunal hands down key ruling on ‘bedroom tax’

A judge in Scotland has overturned a decision of the first tier tribunal concerning the ‘bedroom tax’.

Judge Gamble of the Upper Tribunal Administrative Appeals Chamber ruled that the Greenock First-tier Tribunal had wrongly applied the law, and reinstated a decision made in March 2013 by Inverclyde Council.

The case concerned whether a disabled resident should lose the 14% of her housing benefit deducted under the ‘bedroom tax’ rules for having more bedrooms than were judged necessary by the council.

Inverclyde had ruled that the unnamed claimant could not benefit from regulation B13 (6)(a) which allows for “a person who requires overnight care” to be entitled to an additional bedroom, because the care was provided by her husband and the regulation applied only to those who ‘do not occupy as their home the dwelling to which … the award of housing benefit relates”.

The council argued that by allowing the appeal against this interpretation, the original tribunal had applied the wrong test, as it had not followed the decision of the Court of Appeal in R (MA and Others) v Secretary of State for Work and Pensions [2014] PTSR 584 and had instead relied on the decision of the Court of Appeal in Burnip v Birmingham City Council [2013] PTSR 117. 

The judge said the tribunal erred by following the Burnip case and should have followed the MA one.

While MA was a ruling of the English Court of Appeal it could be followed by a Scottish judge unless ‘plainly wrong’, and so was taken to apply.

In the Scottish Social Housing Charter there is a reference to disability as a source of discrimination but the judge said Inverclyde had taken its decision not as a social landlord but as an authority considering benefits, and that since the charter applied only to social landlords it had been wrong to consider the case as a housing rather than welfare benefits matter.

Mark Smulian

For analysis of the ruling and to see a copy of the judgment, go to the Nearly Legal site.