Bedroom tax: round 2

On 27 April 2017 the Upper Tribunal (‘UT’) handed down judgment in Secretary of State for Work and Pensions v Carmichael and Sefton BC (HB)  [2017] UKUT 0174 which was the Secretary of State’s appeal to of the First-tier Tribunal’s (‘FTT’) decision on the Carmichael’s ‘bedroom tax’ appeal.

In this post Alice Richardson considers the judgment and the wider implications for cases in which a court or tribunal holds that subordinate legislation is incompatible with convention rights.

Background

Mrs Carmichael lived with her husband, Mr Carmichael, in a two-bedroom flat. She had spina bifida, hydrocephalus, double incontinence, inability to weight bear and recurring pressure sores. Mr Carmichael was her full time carer. She needed a special bed with an electronic mattress. She also needed a wheelchair beside the bed. Her husband could not share the same bed, and there needed to be adequate space for him and nurses to attend to her needs. There was not enough space for him to have a separate bed in the same room. Their rent was previously met in full by Housing Benefit, but it was reduced by 14 per cent under regulation B13 of the Housing Benefit Regulations 2006 (SI No 213) otherwise known as ‘the bedroom tax’ or ‘the spare room subsidy’ etc.

The First-tier Tribunal decision

On 9 June 2014 the FTT allowed the Carmichaels’ appeal holding that regulation B13 unfairly discriminated against disabled persons who needed an additional bedroom and that there was no objective and reasonable justification for the discrimination.

The decision was somewhat surprising given the Court of Appeal’s decision in the unsuccessful judicial review proceedings involving the Carmichael’s: R (MA and others) v The Secretary of State for Work and Pensions [2014] EWCA Civ 13.

Further the FTT judge went on to read words into the regulations purportedly under section 3(1) of the Human Rights Act (HRA) 1998 in order to avoid a breach of Mr Carmichael’s human rights.

The Secretary of State sought permission to appeal that decision and the application was stayed pending the outcome of the Supreme Court decision in the judicial review proceedings.

The Supreme Court decision

On 9 November 2016 the Supreme Court held that the bedroom tax regulations were a breach of the Carmichaels’ human rights:  R (MA and others) v The Secretary of State for Work and Pensions [2016] UKSC 58 (our post here).

On the same day the Department for Work and Pensions had issued local authorities with a ‘Housing Benefit Urgent Bulletin’ advising local authorities that they ‘must continue to apply the rules when determining housing benefit claims as they did before today’s judgment’ and that ‘the Department is considering the Court’s judgment and will take steps to ensure it complies with its terms in due course’.

The Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 (SI No 213) were not laid before Parliament until 2 March 2017.

In our post on that decision we queried how tribunals were to deal with people in the same position as the Carmichaels and the Rutherfords pending the amended regulations because it was not open to the tribunal to read words into the regulations under  HRA 1998 s3(1) (as the FTT judge in this case had already done).

The Upper Tribunal appeal

Given the decision of the Supreme Court it may seem surprising that the Secretary of State continued to pursue an appeal of the FTT decision. However, there remained the unresolved jurisdictional point framed as:

‘whether statutory tribunals have the jurisdiction to develop bespoke solutions to Convention violations (discrimination or otherwise) on a case by case basis’.

In other words, having found the regulations to amount to a convention violation, was the FTT still bound by them or was it entitled to dis-apply the regulations?

In the Upper Tribunal (UT) it was common ground between the parties that the FTT’s interpretation had not been open to it, since it went beyond any interpretative reading permitted by HRA 1998 s3(1).

The Secretary of State’s position was that in the period between a Court identifying a breach of Convention rights by the operation of secondary legislation (such as reg B13) and Parliament taking steps to rectify that incompatibility then ultimately a claimant’s only recourse to make good the consequential financial loss was to bring civil proceedings in a court for damages under HRA 1998 s8(2).

On the Carmichaels’ behalf it was argued that the approach taken in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47 should apply. There was no obligation in the primary legislation to make the 14 per cent reduction; the requirement was contained in the secondary legislation. Mathieson demonstrated that in such circumstances the Tribunal should allow the appeal, set aside the offending decision by the initial decision-maker and substitute a decision that the claimant was entitled to the continued payment of benefit at a rate unaffected by the action which would otherwise be a breach of the claimant’s Convention rights.

The Upper Tribunal decision

The UT concluded that Mathieson applied and that courts and tribunals ultimately have the power to order that to the extent that subordinate legislation is incompatible with a person’s Convention rights it should not be given effect to in determining the person’s lawful entitlement, or should be otherwise applied or dis-applied in a way that does not breach the person’s Convention rights. That course of action was held to be a ‘relief or remedy’ which a court or tribunal may make ‘within its powers as it considers just and appropriate’ under HRA 1998 s8(1).

The FTT had arrived at the correct outcome but by the wrong route. The FTT should have directed 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 the Carmichaels’ human rights. The result was the same, namely that no deduction operated.

Comment

The effects of this case are potentially far-reaching. While the appeal concerned only the Carmichaels’ appeal it was effectively the lead case in a block of some 170 further cases before the UT in England and Wales and around 40 cases pending in Scotland. It is not known how many other cases are pending before the FTT. However, implications of the decision would likely go further than Carmichael-like cases and bedroom tax cases: it effectively confirms that the FTT has powers far beyond what most practitioners previously understood to be the case.

Unsurprisingly the Secretary of State sought permission to appeal the decision. That application was refused by the UT and the DWP has announced that an application will be made to the Court of Appeal.

In the interim, the effect of the UT’s decision was apparently suspended for 28 days from 27 April 2017 (according to gov.uk) presumably leaving the 210+ block of cases in the UT, and however many are pending before the FTT, in limbo once again.

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Joined up thinking

The Universal Credit (Housing Costs Element for claimants aged 18 to 21) (Amendment) Regulations 2017 (2017/252) came into force on 1st April 2017.

In this post Alice Richardson considers the regulations and their incompatibility with the Government’s support for the Homelessness Reduction Bill 2017 which is currently awaiting Royal Assent.

Background

Former Chancellor, George Osborne, announced the removal of entitlement to the housing element of Universal Credit from certain young people aged 18-21 as part of the Summer Budget in 2015.

The policy had been suggested as far back as June 2012 when then Prime Minister, David Cameron, proposed removing access to Housing Benefit for people aged 16-24 during a speech at Bluewater in Kent. The idea was raised again at Conservative Party Conferences in 2012, 2013 and 2014 by which point, following some criticism, the age range was narrowed to those aged 18 to 21.

The Regulations

The Universal Credit (Housing Costs Element for claimants aged 18 to 21) (Amendment) Regulations 2017 (2017/252) came into force on 1st April 2017.  The regulations amend the Universal Credit Regulations 2013.

The changes have widely been reported as a withdrawal of housing benefit although the provisions only apply to new claims made after 1st April 2017.

Certain classes of claimant are exempt from the removal, including those who;

  • are responsible for a dependent child;
  • were a care leaver before reaching the age of 18;
  • do not have a parent living in Great Britain;
  • are accommodated in temporary accommodation under Part 7 Housing Act 1996;
  • receive DLA middle-rate care or above, or PIP Daily Living (at either rate);
  • have been subject to, or threatened with domestic violence;
  • cannot live with their parents due to a serious risk to their physical or mental health, and the Secretary of State considers it inappropriate to expect them to do so;
  • earn the equivalent of 16 hours per week at the National Minimum Wage.

 

The Department of Work and Pensions expects that around 11,000 people will be affected by the regulations by 2020/21.

The Homelessness Reduction Bill 2016/2017

The Homelessness Reduction Bill is a Private Member’s Bill introduced by Bob Blackman MP which passed through parliament with Government support and is now awaiting Royal Assent.

If enacted the Bill would make changes to Part 7, Housing Act 1996. It would place duties on local housing authorities to intervene at earlier stages to prevent homelessness and to take reasonable steps to help those who become homeless to secure accommodation. It also requires local housing authorities to provide some new homelessness services to all people in their area and expands the categories of people who they have to help to find accommodation.

Comment

Organisation from across the sector, including Centrepoint, the Chartered Institute of Housing, Crisis, Shelter, the Residential Landlord’s Association and the National Landlord’s Association have all raised concerns with the regulations.

The CEO of the National Landlords Association, Richard Lambert, was reported as saying:

 “Never mind the nuances, all landlords will hear is that 18-21 year olds are no longer entitled to housing benefit.  Faced with a young person who may not be able to pay the rent, a landlord won’t worry about the details of their life, they just won’t consider them as a tenant… However much the Government tries to make this policy more palatable by talking up the exemptions, it still leaves a nasty taste in the mouth”.

The policy was also criticised by Labour’s Shadow Secretary of State for Housing John Healey MP who said:

“This disgraceful cut to housing support will leave thousands of young people with nowhere to go. Many could end up on the streets…”

Of particular concern to many is how a young person who is unable to remain at the family home would demonstrate that to the decision-maker so as to be exempted from the cut. Anyone who has experience of DWP decision-making is likely to be sceptical of Caroline Noakes MP’s assurances that:

“…it is a question of young people informing a work coach, somebody in the local authority or a trusted medical professional of their inability to live at home because their relationship with their parent has broken down, and in those cases they will receive the exemption.

The Regulations come at a time when homelessness, including street homelessness, is already increasing. The estimated number of rough sleepers in England has increased from 1,768 in 2010 to 4,134 in 2016 according to “Rough Sleeping in England”.

In an article dated 6 March 2017 Inside Housing reported that the regulations “…could place 9,000 at risk of homelessness” and reported concerns that, if youth homelessness increases, it could “wipe out” almost all of the forecast savings.

On 5th April 2017 the Residential Landlord’s Association reported that their survey of more than 1,000 landlords found that 76% fear the measures will leave under 21s unable to pay their rent, making landlords less likely to let property to those in this age group.

On announcement of the regulations Crisis urged the Government not to continue with the “destructive policy” commenting that:

“The Government has made positive steps towards preventing homelessness in recent months, including pledging its full support for the Homelessness Reduction Bill… today’s announcement runs entirely counter to those aims and could have disastrous consequences…”

(Crisis, 18-21 year olds at greater risk of homelessness as Government announces benefit cuts, 6 March 2017)

Although the Bill arguably does not go far enough to tackle the growing homelessness crisis, it is very much considered to be a positive step. As is the Government support it has received. The introduction of the regulations, which have been so heavily criticised and risk increasing youth homelessness, does somewhat undermine that support.

Furthermore, researchers at Heriot-Watt University predict that the likely savings would actually only be around £3.3 million. Of course, if a young person becomes homeless as a result of losing of the policy this will ultimately cost the taxpayer. The researchers estimated that only 140 people would need to become homeless for the policy to cost more than it saves.

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Showing your workings

In this post Alice Richardson considers the decision in London Borough of Hackney v Haque [2017] EWCA Civ 4 in which the Court of Appeal grappled with the applicability of s.149 Equality Act 2010 (“PSED”) to a “suitability” decision pursuant to ss.206 and 210 Housing Act 1996.

Facts

Mr Haque was a man in his early forties with serious neck and back pain. His disability had caused him to lose his job as a bus driver in 2011. In January 2013 his mother had asked him to leave her home. He made a homeless application to the London Borough of Hackney, in February 2013, which was refused. He sought a review and was accommodated pending the review decision. On review the original decision was upheld and he was evicted in August 2014.

 

Mr Haque made a second application in August 2014 and was accommodated pending a decision at Room 315 in the Metropolitan Hostel in Kingsland Road, London E8. Following a series of negative determinations and “minded to” letters, together with an unsuccessful review the Council finally concluded that Mr Haque did have a priority need, and qualified for the full housing duty, on 26 March 2015. He had been accommodated in Room 315 throughout, and the Council concluded that this accommodation was suitable for him, in discharge of its housing duty while he was placed on its waiting list for the allocation of permanent accommodation.

 

Mr Haque’s solicitors sought a review of the suitability of Room 315 pursuant to s.202. The accommodation was alleged to be unsuitable for Mr Haque because:

 

“i) Its cramped size restricted his movement and thereby exacerbated his back, shoulder, leg and neck pains;

ii) Its cramped size, coupled with a “No Visitors” policy applied in the hostel, left him isolated and prevented him from receiving visits from his children, which exacerbated his depression and anxiety;

iii) The hostel’s lack of laundry facilities meant that he was required to wear dirty clothing, since his physical disability prevented him from carrying loads of laundry to a launderette; and

iv) As a result of all the above, he had been required to increase his dosage of anti-depressant medication.”

 

In a decision dated 29 September 2015 the Council concluded that:

 

“i) Room 315 was of ample size, were it not excessively cluttered by Mr Haque’s possessions, some of which he could put into storage offered by the Council at reasonable cost.

ii) Mr Haque could use local parks, local restaurants and eateries to meet his family and friends, or see them in their own homes, and did not therefore need an exception from the No Visitors policy in order to avoid having his depression exacerbated by loneliness.

iii) The nearest launderette was sufficiently proximate for him to be able to reach it with moderate loads of laundry, and the No Visitors policy was to be mitigated in his case by permitting his family to visit him to collect and return laundry.

iv) The council’s independent medical advisor had concluded that his condition was such that a flat served by one flight of stairs and a lift was suitable for him, and that the evidence did not sufficiently demonstrate that his current accommodation was exacerbating his condition, which had been long-standing.”

 

The letter also stated that “In reaching this decision I have had regard to the Equalities Act 2010…”.

 

Mr Haque appealed to the County Court under s.204 Housing Act 1996. He pursued various grounds of appeal and was successful on his first ground that the review officer “failed to apply the PSED in considering whether Room 315 was suitable having regard to his medical condition”. The decision was quashed.

 

The Council appealed to the Court of Appeal.

 

The PSED

s.149(1) Equality Act 2010 provides:

 

“A public authority must, in the exercise of its functions, have due regard to the need to:

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

 

In Hotak v Southwark London Borough Council; Kanu v Southwark London Borough Council [2016] AC 811 the Supreme Court considered, inter alia, the relationship between the PSED and the assessment of priority need under s.189(1)(c) Housing Act 1996. Delivering the leading judgment Lord Neuberger, at [78], held that “each stage of the decision-making exercise … must be made with the equality duty well in mind” and that:

 

“… the equality duty, in the context of an exercise such as a section 202 review, does require the reviewing officer to focus very sharply on (i) whether the applicant is under a disability (or has another relevant protected characteristic), (ii) the extent of such disability, (iii) the likely effect of the disability, when taken together with any other features, on the applicant if and when homeless, and (iv) whether the applicant is as a result “vulnerable””

 

However, at [79], Lord Neuburger went on to say that “… a conscientious reviewing officer who was investigating and reporting on a potentially vulnerable applicant, and who was unaware of the fact that the equality duty was engaged, could, despite his ignorance, very often comply with that duty”.

 

The Court of Appeal decision

The Court of Appeal allowed the Council’s appeal. Delivering the lead judgment Briggs LJ held, at [41], that Lord Neuberger’s four-stage approach in Hotak was only concerned with vulnerability under s.189(1)(c) Housing Act 1996. Equally, Lord Neuberger’s acceptance that “in many cases” a reviewing officer might discharge a PSED even if ignorant of it was expressly directed to the conduct of a vulnerability assessment.

 

The general principle to be derived from Hotak was the “…sharp focus required of the decision maker upon the relevant aspects of the PSED where it is engaged by the contextual facts about each particular case”.

 

Briggs LJ set out the relevant context in Mr Haque’s case, at [42], and went on to consider what the PSED required of the reviewing officer on those facts. At [43] he held:

 

“In my judgment, it required the following:

i) A recognition that Mr Haque suffered from a physical or mental impairment having a substantial and long term adverse effect on his ability to carry out normal day to day activities; i.e. that he was disabled within the meaning of EA s. 6, and therefore had a protected characteristic.

ii) A focus upon the specific aspects of his impairments, to the extent relevant to the suitability of Room 315 as accommodation for him.

iii) A focus upon the consequences of his impairments, both in terms of the disadvantages which he might suffer in using Room 315 as his accommodation, by comparison with persons without those impairments (see s. 149(3)(a)).

iv) A focus upon his particular needs in relation to accommodation arising from those impairments, by comparison with the needs of persons without such impairments, and the extent to which Room 315 met those particular needs: see s. 149(3)(b) and (4).

v) A recognition that Mr Haque’s particular needs arising from those impairments might require him to be treated more favourably in terms of the provision of accommodation than other persons not suffering from disability or other protected characteristics: see s. 149(6).

vi) A review of the suitability of Room 315 as accommodation for Mr Haque which paid due regard to those matters.”

 

The Judge below, HHJ Luba QC, had concluded that Hotak, read together with the duty to give reasons for a reviewing officer’s decision:

“… oblige a reviewing officer to be transparent in his treatment of the issues of whether an applicant does or does not have a protected characteristic and as to whether the public sector equality duty is in play and with what effect. In my judgment, that will in almost all circumstances, require a reviewing officer to spell out, at least in summary form, his decisions on those matters. Indeed, he should go further and spell out what follows from an affirmative finding that a protected characteristic is established and that the public sector equality duty is in play”.

 

The Court of Appeal considered that approach to be wrong and adapted para 79 in Hotak to conclude that a conscientious reviewing officer considering the objections in good faith and in a focussed manner would be likely to comply with the PSED even if unaware of its existence (at [47]). Further s.149 did not require the decision maker to give any reasons for a decision to which the PSED applies (at [48]).

 

In Mr Haque’s case, taking a “stand-back” approach to the decision, the review officer had complied with the six stage approach set out above.

 

Comment

The decision that the four-stage approach in Hotak applies only to vulnerability decisions may not be surprising to some. Instead the six stage test should be looked at closely by those representing homeless applicants challenging suitability for reasons related to disability in future.

 

The decision on the duty to give reasons may cause some consternation. How is a homeless person, or indeed his advisor, to know whether the PSED has been properly considered if the review decision does not contain the type of reasoning that HHJ Luba QC referred to?

 

In this case McCombe LJ, at [61], expressed some reservations in relation to that point stating:

“I confess to having had hesitation as to whether Mr. Banjo’s decision sufficiently demonstrated adequate regard for the requirements of the PSED…. I considered Mr Arden’s submissions on this point to be particularly persuasive”.

 

Faced with what seems a somewhat harsh review decision Briggs LJ had said, at [57]:

“Judicial notice can be taken of the fact that housing authorities experience grave constraints in finding appropriately located suitable accommodation for those applicants demonstrating priority need, and that many of them deserve more favourable than purely average treatment by reason of vulnerabilities, including protected characteristics of a type which engage the PSED. The allocation of scarce resources among those in need of it calls for tough and, on occasion, heartbreaking decision-making, but having to say no to those deserving of sympathy by no means betokens a failure to comply with the PSED.”

 

 

 

 

 

 

 

 

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A long and winding road, yet there is still further to go…

In this post Alice Richardson considers the long-awaited Supreme Court “bedroom tax” decision and what it means for affected housing benefit claimants and local authorities.

 

On 9th November 2016 the Supreme Court handed down its decision in the joined appeals of R (Carmichael and Rourke) (formerly known as MA and others) v Secretary of State for Work and Pensions, R (Daly and others) (formerly known as MA and others) v Secretary of State for Work and Pensions, R (A) v Secretary of State for Work and Pensions and R (Rutherford and another) v Secretary of State for Work and Pensions [2016] UKSC 58.

 

Lord Toulson (with whom Lords Neuberger, Mance, Sumption and Hughes agreed) delivered the decision, which was unanimous in respect of some of the appeals, but was only a majority decision (Lady Hale and Lord Carnwarth dissenting) in others.

 

The Issue

 

The bedroom tax was imposed by Regulation B13 of the Housing Benefit Regulations 2006 (SI 2006/213) (“Reg B13”) from 1 April 2013, by way of amendment to the 2006 Regulations by the Housing Benefit (Amendment) Regulations 2012 (SI 2012/3040).

 

The appeals concerned the impact of the bedroom tax on those with disabilities and on women living in “sanctuary scheme” accommodation. The claimants challenged the validity of Reg B13 and contended that there has been a violation of their human rights under Article 14 of the European Convention on Human Rights (“ECHR”), taken with Article 8 and/or Article 1 of the First Protocol (“A1P1”) and in A’s case that there has been a breach of the Public Sector Equality Duty (“PSED”) under the Equality Act 2010.

 

Reg B13 had previously been amended due to the decision of the Court of Appeal in Burnip v Birmingham City Council and other appeals[2012] EWCA Civ 629. In Burnip and a second case the claimants were adults with disabilities who required the presence of a carer throughout the night. A third case (Gorry) concerned a family with two children of the same sex who suffered from severe disabilities making it inappropriate for them to share a bedroom. The court held that in each case there had been discrimination under article 14, because Reg B13 had a disparate adverse impact on persons with disabilities, and that the discrimination had not been justified. The court recognised that the Discretionary Housing Payment (“DHP”) scheme had a valuable role to play but it did not consider that they provided an adequate response to the problem in those cases. In broad terms, by the time of the Supreme Court hearing, Reg B13 had been amended to meet these cases.

 

The Decisions Below

 

In MA the Court of Appeal accepted that Reg B13 had a discriminatory effect on some people with disabilities, but it held that the discrimination was justified, primarily because the Secretary of State was entitled to take the view that it was not practicable to exempt an imprecise class of persons to whom the bedroom criteria would not apply because they needed extra bedroom space by reason of disability. The DHP scheme had the benefit of flexibility and was also appropriate because the nature of a person’s disability and disability-related needs may change over time. The court rejected the argument that the case of Mrs Carmichael, who needed to sleep in a separate room from her husband on account of her disability, was materially indistinguishable from the Gorry situation of children who were unable to sleep in the same room. The court held that the Secretary of State was entitled to provide greater protection for a child than an adult because the best interests of a child are a primary consideration.

In the proceedings relating to A and Rutherford the Court of Appeal held that the situation of the Rutherford family, who included a child with disabilities requiring an overnight carer on certain days of the week, was indistinguishable from that of an adult with disabilities requiring an overnight carer, to which the decision in Burnip applied. The court held that the reasoning in Burnip applied also in the case of A, a female victim of domestic violence living in accommodation adapted under a sanctuary scheme.

The Supreme Court

The Supreme Court dismissed an argument from the MA appellants that ‘weighty reasons’ were required in disability discrimination cases and held that the appropriate test was whether the relevant parts of Reg B13 were ‘manifestly without reasonable foundation’ (see Stec v United Kingdom (2006) 43 EHRR 1017 and Humphreys v Revenue and Customs Comrs [2012] 1 WLR 1545).

The Court then went on to consider whether the test had been misapplied.

Firstly, the Court considered Carmichael and Rutherford to be “counterparts” to Gorry and Burnip respectively, and the amendments introduced to meet those decisions did not apply in Carmichael or Rutherford.

The Supreme Court considered that there was no reasonable justification for the differences. Whilst there may be some respects in which differential treatment of children and adults regarding the occupation of bedrooms may have a sensible explanation, there was no sensible reason for distinguishing between adult partners who cannot share a bedroom because of disability and children who cannot do so because of disability. The same applied also to distinguishing between adults and children in need of an overnight carer.

The Court dismissed the remaining MA cases, however, holding in each that it was not unreasonable for those cases to be considered on an individual basis under the DHP scheme.

In A’s case the majority held that there was no valid claim for sex discrimination and the Secretary of State’s appeal was allowed. A’s case for staying where she was, strong as that case appeared to be, had nothing to do with the size of the property.

Lady Hale & Lord Carnwarth, dissented, finding that  Reg 13B operated so as to discriminate against women such as A who were victims of gender-based violence. If the justification for the discrimination (DHP) was not good enough to justify disability discrimination against Rutherford and Carmichael then it was not good enough to justify sex discrimination against A. Similarly, whilst the majority held that there had been no breach of the PSED the minority held that the public sector equality duty requires public authorities at least to consider the impact of their decisions and actions on the victims of gender-based violence. In this case they had failed to do so and accordingly there had been a breach of the PSED.

Comment

As Lady Hale points out in her judgment, it is perhaps unfortunate that A’s case was dealt with alongside the disability discrimination cases due to the different issues raised. A has announced plans to take her case to the European Court of Human Rights which will, of course, take some time.

Nevertheless, the decision relating to the Carmichael’s and the Rutherford’s is to be welcomed and brings an end to the seemingly unjustified distinction between the claimants in Burnip and MA.

Reg13 will now need to be amended to provide for exemptions for households with disabled people with a clear medical need an extra bedroom. One would hope that this will be done relatively quickly (unlike the post-Burnip amendment).

In the meantime, the day the judgement was handed down the Department of Work and Pensions issued an Urgent Bulletin to Local Authorities (HB U3/2016) which states:

“No immediate action needs to be taken by local authorities (LAs) following this judgment. The Court did not strike down the legislation underpinning the size criteria. As such LAs must continue to apply the rules when determining Housing Benefit claims as they did before today’s judgment and the judgment does not require any LA to re-assess the HB of existing claimants. LAs should continue to award DHPs to claimants who they consider require additional financial support.

The Department is considering the Court’s judgment and will take steps to ensure it complies with its terms in due course. The Department will notify LAs once a decision has been taken.”

By s.6(1) Human Rights Act 1998 it is unlawful for a public authority to act in a way which is in compatible with a convention right. Refusing to re-assess claimants and/or refusing to award the full housing benefit entitlement to claimants with a clear medical need for an extra bedroom may well infringe that provision.

According to the Nearly Legal Blog the Child Poverty Action Group are of the view that claimants should seek a revision/supersession of their decision on the basis of “error of law” and then appeal to the First Tier Tribunal if refused.

However, it is unclear how the Tribunal would be able to resolve the situation. Reg13 cannot be read in a convention complaint way pursuant to s.3 HRA 1998 and the Supreme Court has already declared the legislation to be incompatible.

Claimants may well be better off continuing to claim DHP pending the amendments.

 

 

 

 

 

 

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Forgiveness or permission?

In this post Alice Richardson considers the Court of Appeal’s recent decision in Cardiff County Council v Lee (Flowers) [2016] EWCA Civ 1034. In particular, this post will address the perhaps surprising concession by Cardiff County Council that, under CPR r.83.2(e), a landlord must seek the Court’s permission to enforce a suspended possession order (“SPO”).

 

The Facts

On 19 January 2009 the appellant was granted a secure tenancy by the respondent authority pursuant. On 19 March 2013, the authority issued a claim for possession on the grounds of breach of tenancy and nuisance and annoyance. On 3 September 2013, the court made an order for possession which was suspended for two years on the terms that the appellant complied with the provisions of his tenancy agreement, which contained covenants against causing a nuisance or annoyance to neighbours.

In 2015, there was a three-month period in which there were disputes between the appellant and his upstairs neighbour. The authority warned the appellant that it intended to seek a warrant for possession. On 12 August 2015, the authority, filed a Request for a Warrant of Possession of Land (Form N325) on the basis that the appellant had breached the terms of his tenancy agreement and thus the SPO.

Form N325 does not require the court to grant permission for the issue of a warrant of possession and on 14 August 2015, the Cardiff County Court issued the warrant. On 25 August, the bailiff gave notice of an appointment on 9 September 2015 and on 3 September 2015, the appellant applied to the court to stay the warrant.

On 4 November 2015 District Judge Scannell dismissed the appellant’s application. She found that the appellant had breached his tenancy and that the warrant had been appropriately issued under CPR r 83.26 which provides:

“(1) 
A judgment or order for the recovery of land will be enforceable by warrant of possession.

(2) 
An application for a warrant of possession –

(a) 
may be made without notice …”

The appellant appealed. On 18 January 2016, HHJ Bidder QC held that pursuant to CPR r.83.2(3)(e) the respondent authority required the court’s permission before a warrant for possession can be requested.

CPR r.83.2(3)(e) provides, that:

“(3) A relevant writ or warrant must not be issued without the permission of the court where…

(e) 
under the judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled…”

 

The Judge considered thatr.83.26 was directed, as far as landlord and tenant cases were concerned, to simple situations where the court had made an order for possession and the tenant had not complied with the order and had remained in possession after the date for possession and has refused to leave.

Nevertheless, the Judge dismissed the appeal. The Court had the power under r.3.10 to remedy the error in procedure.

The Court of Appeal

The appellant appealed to the Court of Appeal. The appeal was heard by Lady Justice Arden and Lord Justice Briggs.

At that hearing it was “common ground” between the parties that r.83.2(3)(e) was the rule that applied. The local authority had informed the court that Cardiff has changed its systems so that, in future, applications for enforcement of possession where there has been a breach of an SPO would be issued under r.83.2(3)(e).

Therefore, it was not an issue before the Court of Appeal whether the judge was right on r.83.2.  Nevertheless, in orbiter comments in her judgment, with which Briggs LJ agreed, Arden LJ held that HHJ Bidder QC was correct to apply r.83.2(3)(e) rather than r.83.26.

The appeal turned solely on one issue: could the court validate a warrant of possession where the landlord who seeks to enforce his right to possession because of an alleged breach of the terms of an SPO has not complied with r.83.2?

The Court of Appeal held that the Court clearly has power to do this under r.3.10. There was a procedural defect which the Court could cure under that rule.

Comment

It is unfortunate that the question of whether a landlord must seek the Court’s permission to enforce an SPO was not argued before the Court of Appeal. In the circumstances the Court simply assumes that permission is required without there having been full consideration of the relevant provisions and prior case law.

As practitioners will know this is contrary to established practise and contrary to previous case law. See, eg. Leicester City Council v Aldwinckle (1992) 24 HLR 40, Jephson Homes Housing Association v Moisejevs & Anor (2001) 33 HLR 54, St Brice v Southwark London Borough Council [2001] EWCA Civ 1138; [2002] HLR 26.

 

In St Brice v Southwark London Borough Council the Court of Appeal held that the issue of a warrant was an administrative and not a judicial process. As Arden LJ identifies this puts the onus on the tenant if he considers that the conditions for suspension have not been breached to apply for a stay of a warrant. By contrast, in the High Court, by r.83.13 the landlord must apply to the court for permission to enforce the order and must notify the tenant before making the application.

 

As is set out in the Court of Appeal’s judgment r.83.2(e) was introduced by the rules committee in 2014. At (3) Arden LJ states:

 

“While it is not possible to ascribe the reason for the insertion into the rules in 2014 of a new CPR 83.2 to the decision in Brice, clearly CPR 83.2 addresses what might reasonably have been considered to be a weakness of the system, namely that there was no judicial scrutiny of the landlord’s case that the conditions had been breached.”

However, it seems unlikely that the amendment to r.83.2 was a result of the decision in St Brice. Not least because the amendment to the rules came some 13 years after that decision. It would also be surprising, if that was the aim, that the rules committee would not simply amend r.83.26 to reflect r.83.13.

 

In any event it is arguable that the conclusion on the applicability of r.83.2(e), and the concession made by Cardiff, was wrong. R.83.2(3)(e) requires the permission of the court where “under the judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled…”. It is difficult to see how a tenant’s failure to comply with a term of suspension could be classed as “the fulfilment of a condition”. There is no “condition” to fulfil: the landlord has been granted his remedy albeit suspended on terms that the tenant does (or does not do) something. It would be a very strange use of language if the breach of an SPO was classed as a condition being fulfilled.

Nevertheless, despite the fact that the Court of Appeal’s comments on the matter are orbiter that is where we are now.  It is unlikely to be the last we hear on the issue. Practitioners acting for both landlords and tenants will no doubt be paying careful attention to these cases for the foreseeable future. Those acting for landlords who have not sought permission, will, for now at least, be arguing that the “error” should be remedied under r.3.10.

 

 

 

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The Right to Buy- Where are we now?

The Right to Buy was introduced by the Housing Act 1980. Just under 2 million local authority properties have since been sold under the policy. The UK now faces an unprecedented housing crisis and Local Authorities are struggling with a chronic shortage of housing stock, with c.40 percent of homes purchased under right to buy now in the hands of private landlords.

In this post Alice Richardson considers the recent and impending changes to right to buy across the UK and the increasing divergence of policy between Parliament and the devolved administrations of Scotland, Wales and Northern Ireland.

When does the right arise?

The right to buy arises after a tenant has spent a specified period of time as a public sector tenant: Sch.4 para.6 Housing Act 1985.  Currently the tenant must, however, be a secure or flexible tenant at the date of his application. The specified period is five years in Wales or  three years in England: s.119.

The right is lost if the tenant ceases to be a secure or flexible tenant before he acquires the freehold or leasehold interest in the property e.g. he no longer occupies the property as his only or principal home: Sutton LBC v Swann (1986) 18 H.L.R. 140.

 

How much is the discount?

If the property is a house (and the tenancy began after 18 January 2005) the discount is 35 per cent at the date the right to buy arises plus 1 per cent for each further year, to a maximum of 60 per cent: s.129(2)(a) Housing Act 1985. The starting discount is 32 per cent if the tenancy began before 18 January 2005: s.180 Housing Act 2004.

 

If the property is a flat (and the tenancy began after 18 January 2005) the discount is 50 per cent at the date the right to buy arises plus 2 per cent for each further year, to a maximum of 70 per cent: s.129(2)(b). The starting discount is 44 per cent if the tenancy began before 18 January 2005: s.180 Housing Act 2004.

The landlord may require the tenant to repay anything up to the full discount if the property is sold within five years of it being purchased: s.155(2) and s.155A(2).

By the Housing (Right to Buy) (Limit on Discount) Order 1998/2997 the Labour government set the maximum discount at between from £22,000 and £38,000 (varying by region).

In April 2012, the government repealed the 1998 Order and in 2014 the Housing (Right to Buy) (Limit on Discount) (England) Order 2014/1378 increased the maximum discount to £77,000 in England and to £102,700 in London. By the Housing (Right to Buy) (Limit on Discount) (England) Order 2014/1378 from April 2015 the maximum discount has increased at the same rate as the percentage change in the consumer prices index from the preceding year.

The maximum discount in Wales is currently considerably lower than in England at £8,000: Housing (Right to Buy) (Limits on Discount) (Wales) Order 1999/292, Housing (Right to Buy and Right to Acquire) (Limits on Discount) (Amendment) (Wales) Order 2015/1349.

 

Where are we now?

The Scottish Parliament, having increasingly restricted scheme, abolished the Right to Buy from 1st August 2016: s.1 Housing (Scotland) Act 2014. Announcing the intention to do so in July 2013, then Deputy First Minister, Nicola Sturgeon said:

“We can no longer afford to see badly needed homes lost to the social sector. That is why I am today announcing the final stage of the abolition of the right to buy – a decision that will safeguard Scotland’s social housing stock for the benefit of citizens today and for our future generations.” (The Scottish Government, Safeguarding Scotland’s social housing, 3 July 2013)

 

The Welsh Assembly have announced plans to do the same. The Legislative Programme for 2016-17 contains a commitment to bring forward a Bill to abolish the Right to Buy and Right to Acquire in Wales:

“…we will bring forward a Bill to abolish the right to buy and the right to acquire. We must safeguard our social housing stock in Wales and ensure it’s available to people who need it and who are unable to access accommodation through home ownership or the private rented sector. We need to build more homes, and this Government is committed to delivering an extra 20,000 affordable homes during this Assembly term, but we must also tackle the pressure on our current social housing stock. This Bill will seek to protect that stock from further reductions. The analogy I’ve used before is that it’s like trying to fill the bath up with the plug out.”

In Northern Ireland, the equivalent of the right to buy is the “House Sales Scheme” and the maximum discount is £24,000. Although the Executive has not indicated any planned changes as yet, the Stormont Agreement, A Fresh Start (November 2015) includes the following:

“The Executive is also committed to progressing significant structural reform of social housing provision. This will be focused on reducing the Departmental Expenditure Limit subsidy pressures.”

 

Expansion of the Right to Buy in England

Meanwhile the Conservative government continue to expand the Right to Buy in England. The Party’s 2015 Manifesto set out an intention to extend the Right to Buy to housing association tenants and require local authorities to sell off their most valuable properties in order to pay for it.

 

Before the Housing and Planning Bill 2015-16 was introduced the National Housing Federation (NHF) proposed the implementation of an extended Right to Buy on a voluntary basis only. The offer was described as a compromise which would allow Housing Associations to refuse the right to buy in relation to certain properties.

 

On 7th October 2015, David Cameron announced that agreement had been reached on the offer and that the first housing association tenants would be able to buy their homes in 2016. During the Autumn Statement and Comprehensive Spending Review 2015 the Chancellor announced that the extended right to buy would be piloted by five housing associations.

 

The Housing and Planning Act 2016

The Housing and Planning Act 2016 does not, therefore, contain a statutory Right to Buy.  However provisions are made for, inter alia, the funding of the voluntary right to buy.

s.64 of the Act enables the Secretary of State to pay grant to private registered providers to cover the cost of a discount awarded to the tenant of a provider when buying their home from that provider and s.65 enables the Greater London Authority to make equivalent grants in respect of Right to Buy discounts for dwellings in Greater London.

 

ss.69-79 enables the Secretary of State to require local housing authorities to make a payment to the Secretary of State calculated by reference to the market value of the higher value vacant housing owned by the authority.

 

s.76 places a duty on local housing authorities to consider selling such housing and enable the Secretary of State to enter into an agreement with a local authority to reduce the amount of the payment.

 

These payments will, apparently, be used to compensate housing associations for selling housing assets at a discount to tenants.

 

Comment

The extension of the right to buy to housing association tenants was the subject of an inquiry by the Communities and Local Government Select Committee. The Committee concluded in their report that:

“The extended Right to Buy is designed to increase home ownership and increase housing supply. We support these aspirations and the principle of giving people the opportunity to buy their own home. Despite this, we feel that there are unresolved issues and remain concerned that the Government’s policies could have a detrimental effect on the provision of accessible and affordable housing across all tenures, particularly affordable rented…”

 

Unsurprisingly the report also found that large numbers of homes sold through the statutory Right to Buy for council tenants had in a relatively short space of time become rental properties in the private sector. Selling social housing assets at a discount, only for them to become both more expensive and possibly of lower quality housing in the private rented sector was therefore a significant concern.

 

Regarding the funding of the Right to Buy discounts for housing association tenants with the proceeds from the sale of high value council homes the Committee were of the view that public policy should usually be funded by central Government, rather than through a levy on local authorities.

In a separate report the Public Accounts Committee criticised the fact that many key policy details have not been clarified, with only vague assurances as to how it will be funded, without producing any figures to demonstrate that additional funding from central or local government will not be required. Other concerns included the extent to which the new homes funded by the policy will be genuine replacements for those sold, and whether there will be sufficient controls to prevent abuse of the scheme (Committee of Public Accounts, Extending the Right to Buy to housing association tenants, HC 880 2015-16, April 2016).

A further difficulty with the scheme may be that different approaches to exemptions by different housing associations could give rise to claims for judicial review. Five housing associations are currently piloting the voluntary right to buy and the pilot schemes will run to January 2017. An evaluation report, due in September 2016, is yet to be published but is no doubt anticipated with interest by tenants, housing associations and their lawyers.

 

 

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The Equality Act – what next?

In March this year The House of Lords Select Committee on the Equality Act 2010 and Disability published its report on the Act’s impact on disabled people and concluded that the Government was failing disabled people. In July the Government published its response.

In this post Alice Richardson considers the findings and recommendation of the report so far as it relates to housing.

THE EQUALITY ACT 2010

Disability is a protected characteristic for the purposes of the Equality Act 2010 (“the Act”): s.4.  A person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities: s.6(1).

A person who manages premises must not discriminate, harass or victimise occupiers with certain protected characteristics including, inter alia, disability: s.35. For example, a person who manages premises must not, discriminate against a person who occupies the premises by evicting them (or taking steps for the purpose of securing their eviction): s.35(1)(b).

s.15 of the Act prohibits direct discrimination and was introduced with the aim of restoring the protection of the Disability Discrimination Act 1995 following Lewisham LBC v Malcolm [2008] UKHL 43; [2008] 3 W.L.R. 194. In addition, s.19 prohibits indirect discrimination and ss.20-21 contain the duty to make “reasonable adjustments”.

 

s.149 introduced the Public Sector Equality Duty (“PSED”) which requires a public authority to have due regard to the need to:

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

 

THE HOUSE OF LORDS REPORT & THE GOVERNMENT RESPONSE

In summary the committee considered that much more needs to be done towards fighting disability discrimination. Changes made by the Government under the ‘Red Tape Challenge’ increase the problems of disabled people. The Government, instead of concentrating on the burden on businesses, should be looking at the burden on disabled people.

The PSED

 

The PSED was considered the be fundamentally flawed. The Committee felt that the provision allows public authorities to consider all the evidence, but still to pursue plainly discriminatory policies. The committee recommend that the wording be strengthened, so that the discriminatory consequences of decisions can no longer be ignored. The report recommend that a new subsection should be added to section 149: “To comply with the duties in this section, a public authority in the exercise of its functions, or a person within subsection (2) in the exercise of its public functions, shall take all proportionate steps towards the achievement of the matters mentioned in subsection (1).”

 

The Select Committee also made recommendations regarding changes to the Equality Act 2010 (Specific Duties) Regulations 2011.

The Government response to all of the recommendations on the PSED was that following Lord Haywood’s review in 2013, which recommended a further review in 2016, the Government is considering a further review and will ensure that the Select Committee’s concerns and recommendations are taken into account in any such review.

The Committee also recommended that the Government produce an assessment of the cumulative impact of budgets and other major initiatives on disabled people. In response the Government stated that they continue to keep the issue under review but are not convinced by the argument that such analysis would be practical. Moreover, the Government felt it important to recognise that once funding has been allocated, individual departments have the delegated authority/responsibility for determining their spending priorities which they do in a way that fully complies with the Public Sector Equality Duty.

Common Parts

 

s.36 and schedule 4 of the Act contain provisions on reasonable adjustments to the common parts of buildings, such as blocks of flats. These provisions are not yet in force. They would require those responsible for common parts to agree to adjustments when requested by a disabled tenant if, after consultation with other residents, they considered it reasonable. The landlord could require the disabled tenant to pay for the alteration.

 

The report heavily criticised the delay in bringing s.36 in to force which is largely due to the Government awaiting the outcome of implementation of a similar provision (s.37) in Scotland. s.37 is in force in Scotland but has no effect until regulations are made. As yet there are no regulations in Scotland and so, as yet, there is no Scottish experience to draw on.

In its response the Government expressed concern that the consequences of implementing the provisions is unclear. In particular, the Government stated that although requests for reasonable adjustments to common parts are in the first instance matters between disabled tenants and their landlords, these have wider implications concerning the funding of any adjustments, the impact on private landlords, any consequences for landlords’ willingness to let premises to disabled tenants.  There will therefore be further review of s.36 before any decision on implementation will be taken.

County Court discrimination claims

It was recommended that HM Courts and Tribunals Service be required to collect from all county courts and to make publicly available, data relating to disability discrimination claims separately from other claims, as they do in employment tribunals. In response the Government stated that HMCTS does not currently track equality related claims because the numbers are small and staff do not routinely inspect this level of detail in the grounds for claim. Collecting this data for civil court claims and in the Employment Appeal Tribunal (EAT) would require a potentially significant investment of resources which could not be justified given the need to address the ongoing fiscal challenge.

Claims brought by charities

The committee recommended that the Government consider changing the law to allow charities and other bodies which do not themselves have a legal interest to bring proceedings in the interests of classes of disabled people who are not themselves claimants to enable them to remedy action already taken by a public authority or to prevent anticipated action.

In response the Government reiterated that judicial review claims can be brought in matters in which the groups they represent have an interest. Therefore, groups can, to a considerable extent, take remedial action against a public authority or prevent anticipated action by public authorities.

Inaccessible housing

 

The committee considered that local authorities should revise their planning policies so as to require new houses to be wheelchair accessible or adaptable. London has already done so and other authorities were encouraged to follow.

The Government believes that local planning authorities remain best placed to determine the extent to which provision of more accessible housing is necessary and appropriate in their local area, and have appropriate powers to introduce development plan policies to meet these needs.

COMMENT

The Government’s response to the Select Committee report was described by Committee chairman, Baroness Deech, as “buck-passing and dragging of heels” when the report was debated in the House of Lords on 6th September 2016. So far as the recommendations which affect housing lawyers are concerned there does seem to be an element of heel-dragging.

A further review of the PSED, if there is one, will take some time. The duty is not, of course, an obligation to achieve a particular result, only to have regard to the identified factors: R (Karia) v Leicester CC [2014] EWHC 3105 (Admin). Requiring public bodies to demonstrate that they have taken all proportionate steps towards the achievement of the matters at s.149(1) is welcome and may, in some cases, result in the public body turning its mind to the PSED more carefully but ultimately will not require that they reach a particular decision. It is unlikely, therefore, that the provision will, even if amended, have the “bite” that some groups seek.

The failure to bring s.36 in to force was rightly criticised. The Government’s explanation for the delay is not at all satisfactory given that it is now six years since the Act received Royal Assent. The original decision to await the outcome of implementation of the Scottish provisions was entirely misconceived in any event given that leasehold interests do not even exist in Scotland. Nevertheless, we shall have to await the outcome of another review before any progress is made.

With regards to the Government’s response to the recommendation that HMCTS record and publish the number of Equality Act claims it is not entirely convincing that court staff wouldn’t be able to record the number of Equality Act claims relatively easily and without large investment of resources. Further it is unclear how the Government reached its conclusion that that the numbers of such claims are as small, given the apparent lack of data.

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