R Kim Cotton and Others v Secretary of State for Work and Pensions New Forest District Council and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males |
| Judgment Date | 22 October 2014 |
| Neutral Citation | [2014] EWHC 3437 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 October 2014 |
| Docket Number | Case No: CO/4296/2013 |
[2014] EWHC 3437 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, Londonf WC2A 2LL
The Honourable Mr Justice Males
Case No: CO/4296/2013
and
Ms Nathalie Lieven QC and Mr David Blundell (instructed by Liberty) for the Claimants
Mr Jason Coppel QC and Mr Edward Brown (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 15 th October 2014
Introduction
The Housing Benefit (Amendment) Regulations 2012 have been and remain controversial. They give effect to what the defendant Secretary of State for Work & Pensions calls the removal of the "spare room subsidy" and their opponents call the "bedroom tax". There have already been several legal challenges to aspects of the Regulations. The present case is concerned with their impact on divorced or separated parents who look after their children under shared care arrangements whereby the children alternate between living with each parent.
The 2012 Regulations deal with housing benefit payable to claimants of working age who occupy social sector property. They provide for housing benefit to be paid according to the number of bedrooms to which a claimant is entitled, with entitlement determined according to a formula ("the bedroom criteria"). The formula includes a bedroom for a child (or in some cases, two children sharing a bedroom) who occupies the claimant's dwelling as their home. However, only the parent who has responsibility for the child is entitled to claim for the child's bedroom. Only one parent can have such responsibility and, under the Regulations, when the child spends equal time with each parent, that is the parent to whom child benefit is payable.
What this means is that any housing benefit payable to the other parent (whom I shall describe as having secondary responsibility, although that phrase is not used in the Regulations) is assessed on the basis that he (it usually is he, although not always) is not entitled to the bedroom used by the child which is deemed by the Regulations to be unoccupied. Where there is one such bedroom, the benefit payable to the parent with secondary responsibility is reduced by 14%. Where there are two such bedrooms, the reduction is 25%. Similar bedroom criteria have existed for private sector tenants claiming housing benefit since 1996.
The claimants are all parents who are either divorced or separated from the other parent of their children and look after their children under shared care arrangements. They each receive housing benefit. The children alternate between living with each parent, spending approximately half their time with each and having their own bedroom at each premises. In each case the housing benefit payable to the claimants, the parents with secondary responsibility, has been reduced as a result of the Regulations with effect from 1 April 2013, although so far at any rate the shortfall has been made up by the payment of discretionary housing payments ("DHPs") from the claimants' local authorities.
The claimants' case is that the amendments to housing benefit introduced by the 2012 Regulations are unlawful on three grounds, namely that they are:
a. a breach of Article 8 of the European Convention on Human Rights;
b. a breach of Article 8 of the Convention read with Article 14; and
c. irrational
The facts
The first claimant, Ms Kim Cotton, lives in a three-bedroom house provided by her local authority, New Forest District Council. She has two children, a twelve-year-old daughter and a ten-year-old son. Ms Cotton and the children's father separated five years ago and divorced four years ago. Initially the children lived with Ms Cotton full time but they stayed with their father every other weekend.
In September 2011 Ms Cotton's ex-husband applied for custody of the children. In February 2012 Southampton County Court made a shared residence order providing that the children should reside for one week at a time with each parent. The order recorded that this would be in the best interests of the children. This arrangement was put into effect. From July 2012 Ms Cotton received child benefit for her daughter, while her ex-husband received child benefit for her son. The residence order was confirmed and continued in November 2012.
The result of these arrangements was that Ms Cotton had responsibility under the Regulations for her daughter, but not for her son. Accordingly, from 1 April 2013 she was entitled to claim housing benefit calculated by reference to the bedroom which her daughter occupies, but not her son's bedroom. This meant a reduction of 14%, which amounts to £13.28 per week. However, in August 2013 Ms Cotton became the primary carer of both her children. There is no evidence as to why this happened – for example, whether for some reason the shared care arrangement was not working or because circumstances changed. As a result Ms Cotton's housing benefit was reinstated to its pre-April 2013 level.
During the entire four or five month period when her housing benefit was reduced, Ms Cotton's local authority the New Forest District Council made up the shortfall by payment of DHPs. Accordingly she suffered no net loss of income at all.
Ms Cotton's evidence is that without the payment of DHPs she would not have been able to afford the cost of her rent while continuing to feed her children, and that moving into a smaller property, even if one was available, would have meant that the shared care arrangements ordered by the court could not have continued. That may be so, but in the event the payment of the DHPs meant that it never had to be put to the test. In these circumstances Ms Cotton's claim is clearly academic.
The second claimant, Mr Mark Hutchinson, lives in a three-bedroom house provided by Derby City Council. He has lived in the property since 2006. Before that he was homeless and was allocated the house on the basis that it was the only property available at the time. It was in a state of serious disrepair, but has since been refurbished by the council. He has a nine-year-old daughter and a ten-year-old stepson, for whom he has taken on a parental role since birth. Mr Hutchinson and the mother of the two children separated before his daughter was born in 2006. After his daughter's birth, by agreement with the children's mother, both children were ordinarily resident with Mr Hutchinson. Their mother saw them for a couple of days each week.
In 2009 the children's mother entered into a new relationship and decided that she wanted them to live with her and her new partner. She and Mr Hutchinson agreed that both children would reside with her during the week and would stay with him at weekends and during school holidays. This arrangement has been in place since 2009. Child benefit for the children is paid to their mother.
Accordingly Mr Hutchinson has only secondary responsibility for the children and under the 2012 Regulations their bedrooms in his house are deemed to be unoccupied. As a result, from 1 April 2013 his housing benefit was reduced by 25%, a reduction of about £29 per week. However, he has since April 2013 been in receipt of DHP funding. This was initially granted upon application to his local authority at approximately three-monthly intervals. Apparently there have been some periods when these payments were not consistently received, but it appears that this was because Mr Hutchinson struggled to keep up to date with his applications for DHPs. This has resulted, in recent months, in him incurring rent arrears. He has now been approved for a one-year grant of DHP funding.
Mr Hutchinson's only income during this period has been £71 per week contribution-based Employment and Support Allowance. He is currently unable to work due to depression and back problems and relies on ESA and Personal Independence Payments as his only sources of income. He has looked for alternative properties but says that he has not found anything suitable. As I understand his evidence, what he means by this is that although he would be able to move to a one-bedroom property, this would have the consequence that the current shared residence arrangement could not continue and he would have less contact with the children.
The third claimant, Mr Simon Cohen, lives in a two-bedroom house provided by Fosseway Housing Association Limited, a registered social landlord. He has lived in the property for approximately three years. Before then he was staying in a hostel for the homeless. He has a thirteen-year-old son. He and the boy's mother separated when the boy was two years old. By mutual agreement, residence is shared on a roughly equal basis between Mr Cohen and the boy's mother. His son usually stays with him from Thursday to Sunday each week during term time and for at least half the time during school holidays. Child benefit for Mr Cohen's son is paid to the mother.
Under the Regulations the son's bedroom was deemed to be unoccupied and Mr Cohen's housing benefit was reduced by 14%, a reduction of £14.51 per week. However, like the other claimants, Mr Cohen has been in receipt of DHPs from his local housing authority, the Cotswold District Council, since April 2013, apart from a two-month gap in October and November 2013 resulting from problems with the...
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