Couple win Upper Tribunal battle over housing benefit and bedroom tax

The Upper Tribunal has ruled that a couple, one of whom has severe disabilities, should have been provided with their fair entitlement to housing benefit prior to new regulations that followed the Supreme Court’s ruling on the so-called 'bedroom tax' coming into force.

Jayson and Jacqueline Carmichael successfully challenged the 'bedroom tax' in a judicial review heard in the Supreme Court last November.

It ruled the Government had unlawfully discriminated against Ms Carmichael as her spina bifida and other health problems meant she was unable to share a bedroom with her husband but their housing benefit award was still reduced by 14% in 2013, as a result of the operation of the 'bedroom tax'.

Mr Carmichael appealed successfully to the First-tier Tribunal, but the Government appealed though this was stayed pending the Supreme Court case.

Despite the Supreme Court ruling, the Government pursued its appeal against the tribunal’s ruling.

The Upper Tribunal (Administrative Appeals Chamber) said that the First-tier Tribunal had come to the correct outcome but by the wrong route.

Lucy Cadd, from law firm Leigh Day, which represented the Carmichaels, said: “Whilst 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.”

Leigh Day said that had the Government’s appeal succeeded, complainants could have been unable to bring benefits appeals to the FTT, as it would no longer have been able to provide a remedy.

In Secretary of State for Work and Pensions v Carmichael and Sefton BC (HB) [2017] UKUT 174 (AAC) Mr Justice Charles, Judge Lloyd-Davies and Judge Wikeley, said: “Our conclusion is that the First–tier Tribunal arrived at the correct outcome in this appeal but by the wrong route.”

They explained: “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% 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.”

Mark Smulian