Landmark Decision – First success in unlawful discrimination and human rights law used to challenge bedroom tax decision

In what is reportedly the first successful challenge against a ‘bedroom tax’ ruling, a severely disabled woman from Glasgow has had repealed a decision that left her in arrears with her landlord.

The woman, who suffers from severe primary progressive Multiple Sclerosis, had her benefits reduced by 14% to reflect a second bedroom which, Glasgow City Council ruled, was spare. Despite applications for an extra room allowance and then a discretionary housing payment, both were denied and the woman and her husband fell behind in payments to the landlord.

Despite Glasgow’s firm position on the matter, on reference to the First-Tier Tribunal (Social Entitlement Chamber), Judge Boyd upheld the woman’s challenge and set aside the council’s decision of 21 February 2013. The Judge concluded that the flat was no larger than she needed.

Judge Boyd stated simply:

“She does not have a spare or extra bedroom. Because of her severe disability she is not able to share a bedroom with her husband and he must have a bedroom of his own. Her flat is not under-occupied. As a result of her severe disability she and her husband require a bedroom each and the flat is fully occupied.”

The case followed the similar wisdom of Richard Gorry v (1) Wiltshire Council (2) Secretary of State for Work and Pensions [2012] in which it was ruled by the High Court that children who could not share a bedroom because of a disability should not be expected to do so or penalised if they do not. It was seen by Judge Boyd that the woman in question was part of a similar, discrete group of people who could not be expected reasonably to share a bedroom.

Moving forward, although there is some dispute as to whether a Tribunal at this level can set a binding precedent, Judge Boyd has further defined the content of the Housing Benefit Regulations 2006 – comments which will undoubtedly be considered during further cases.

“In terms of section 3(1) of the Human Rights Act 1998 regulation B13(5)(a) of the Housing Benefit Regulations 2006 can and should be read as follows:  ‘(a) a couple (within the meaning of Part 7 of the Act) (or one member of a couple who cannot share a bedroom because of severe disability).’ Not to so read it would be incompatible with the appellant’s rights under Article 14 of the European Convention of Human Rights read with Article 1 of the First Protocol of the European Convention of Human Rights.

“Applying regulation B13(5)(a) as so read, the appellant is entitled to two bedrooms. Accordingly there should not be an under occupancy reduction of 14% in her housing benefit entitlement from 1 April 2013.”

It has been warned that this should not be read as a broad sweeping statement covering all types of disability, however, and inevitably each further case will be a matter of fact and degree in each instance.

SJ / LCB                                                                                                         04/10/2013

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