Gorry v Wiltshire Council CH 1312 2010

JurisdictionUK Non-devolved
JudgeJudge C. Turnbull
Judgment Date05 May 2011
Neutral Citation2011 UKUT 198 AAC
Subject MatterHuman rights law
RespondentSecretary of State for Work and Pensions and North Wiltshire District Council
CourtUpper Tribunal (Administrative Appeals Chamber)
Docket NumberCH 1312 2010
AppellantGorry v Wiltshire Council
IN THE UPPER TRIBUNAL

IN THE UPPER TRIBUNAL Case No. CH/1312/2010

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Chippenham on 1 March 2010. For the reasons set out below I dismiss the appeal.

2. The Claimant is a man now aged 38 who at the material time lived in a 4 bedroom house with his wife and 3 children, a son now aged 18, and daughters now aged 10 and 8. The older girl, Natasha, has Downs Syndrome and the younger one, Hannah, has Spina Bifida.

3. The Claimant was at the material time in receipt of income support and carer’s allowance. His wife was in receipt of incapacity benefit, DLA, child tax credits and child benefit. In addition, the Claimant and his wife received DLA in respect of each of the daughters.

4. The condition of the daughters was such that they could not reasonably share a bedroom. Most significantly, Hannah is quite fragile and needs a quiet environment away from her very boisterous sister. In the words of the First-tier Tribunal in its Decision Notice: “This is a case where on very clear facts the two young disabled daughters of the family need separate bedrooms……..There is a risk to the family if they are forced from their four bedroom home into three bedroom accommodation – either daughter might end up in care.”

5. The house in which the Claimant and his family lived was privately rented, at a rent of £995 per month (£229.61 per week).

6. However, on 1 July 2008 a decision was made by North Wiltshire District Council (“the Council”) that the Claimant was entitled by way of housing benefit only to £155.77 per week, being the maximum amount of housing benefit permissible in the Claimant’s circumstances. That is because the legislation specified that the local housing allowance applicable to a claimant with children of the age and sex of the Claimant’s children was to be based on that appropriate for a 3 bedroom property. By reg. 13D(3) of the Housing Benefit Regulations 2006, in assessing the amount of local housing allowance:

“The claimant shall be entitled to one bedroom for each of the following categories of occupier (and each occupier shall come within the first category only which applies to him):

(a) a couple (within the meaning of Part 7 of the Act);

(b) a person who is not a child;

(c) two children of the same sex;

(d) two children who are less than 10 years old;

(e) a child.”

7. The Claimant had been attempting to obtain alternative accommodation by way of social housing, which is not subject to the local housing allowance rules, but without success.

8. On 13 October 2008 the Claimant appealed against the decision of 1 July 2008, contending that he ought in the particular circumstances to be entitled to housing benefit based on the rent appropriate for a 4 bedroomed house. That appeal was out of time, but matters appear to have proceeded on the footing that time was extended.

9. On 21 October 2008 the Council awarded a discretionary housing payment in the sum of £63.56 per week in respect of the period 1 November 2008 to 2 May 2009. The letter notifying the Claimant of the award stated:

“As stated above, DHP is a cash limited fund, and cannot be awarded indefinitely. If you choose to remain in the property after the award has expired, you will be expected to make up the shortfall between your rent and the Housing Benefit entitlement. The DHP has been awarded in order to give you some time to resolve your financial situation in order that you can manage the shortfall yourself, or to give you some time to seek alternative, cheaper accommodation before your DHP expires on 2 May 2009. If you do need another DHP you will need to re-apply, but I must stress it is highly unlikely that another DHP will be awarded.”

10. On 1 January 2009 the Claimant and his family moved to a different 4 bedroomed house, again privately rented, at the cheaper rent of £850 per month (£196.15 per week). That meant that the shortfall in housing benefit was rather less, but there was still a shortfall, as the same amount of housing benefit (£155.77 per week) was awarded by a decision made on 19 January 2009. The discretionary housing payment continued at the new address, but at the lower amount of £40.83 per week. On 2 February 2009 the Claimant also appealed against the decision of 19 January 2009.

11. The Claimant’s appeal was heard, as I have said, on 1 March 2010. The Council’s written submission to the First-tier Tribunal, and the First-tier Tribunal’s Decision Notice, are on the footing that only the decision of 1 July 2008 was under appeal. Whether there was at the same time a separate decision by the First-tier Tribunal in respect of the appeal against the decision of 19 January 2009 I do not know. It does not matter for present purposes, as there appears to be mo material distinction between the circumstances relating to the two appeals.

12. The Claimant was represented at the First-tier Tribunal hearing by the local CAB. It was argued on his behalf that reg. 13D(3) operated unfairly in relation to the Claimant and his family, in that the two daughters could not reasonably be expected to share a room, and therefore under the Human Rights Act (and in particular Articles 8, Article 1 of Protocol 1 and Article 14 of the Human Rights Convention) the effect of reg. 13D(3) should be modified. The chairman pointed out that what was being argued was not that the Claimant was being treated differently from persons in similar circumstances, but that they were being treated in the same manner as other families whose children were not disabled when they ought to be treated differently by reason of the disability. No authority was cited to the First-tier Tribunal in support of such an approach.

13. The First-tier Tribunal dismissed the appeal. The chairman said in the Statement of Reasons that she was not aware of any authority which would permit positive discrimination in the manner suggested. She then continued:

“Even if a relevant difference in treatment can be identified, the Tribunal would have to go on to consider objective justification and proportionality. The LHA provisions might be objectively justified in the sense that they have a legitimate aim and bore a reasonable relationship of proportionality to that aim. That might be the need for efficient and simple decision making. Absent any remedy for hard cases, such as this, that might not be enough. Given the power, however, for the local authority to pay a discretionary housing benefit to prevent the children losing their home or even for the authority to rehouse in four bedroom accommodation which on the basis of [the Council’s representative’s] account would be fully funded if not provided through a private landlord, it might be difficult to establish that the LHA provisions are not objectively justified and proportionate, in the interests of simple and efficient administration.”

14. I gave permission to appeal to the Upper Tribunal, on the basis that the case of Thlimmenos v Greece 31 EHHR 15, at para. 44, might provide some support for an argument based on Article 14 in conjunction Article 1 of Protocol 1, in circumstances where the Claimant ought to have been treated differently from persons with children without disability. However, I later directed that the appeal be stayed pending a decision by Upper Tribunal Judge Howell in IB v Birmingham City Council [2011] UKUT 23, which raised a similar point. That case was decided on 13 January 2011.

15. In that case the claimant himself was very seriously disabled and required a team of carers who provided 24 hour care and support. He therefore required accommodation with 2 bedrooms, the second being occupied by the member of the team who was providing the overnight care at any particular time. He did not require anyone to be constantly awake and watching over him, so the carer on duty could sleep for most of the time in a separate bedroom.

16. Under reg. 13D(3) the claimant qualified for the local housing allowance applicable to one bedroom self-contained accommodation. The team of carers did not qualify as an “occupier” within reg. 13D(3) because they clearly did not occupy the second bedroom “as their home” (see the definition in reg. 13D(12)). The contention on his behalf was that he should be entitled to an award of housing benefit based instead on the eligible rent for 2 bedrooms, as if his team of live-in carers together constituted an additional single adult also residing in his flat as their home.

17. In a review of the authorities at paras. 37 to 41 Judge Howell concluded that the principle stated as follows by Maurice Kay LJ in AM...

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