Appeal Under Section 13(2) Of The Tribunals Courts And Enforcement Act 2007 By Secretary Of State For Work And Pensions Against (first) The City Of Glasgow Council And (second) Ib
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Brodie,Lord Glennie |
| Judgment Date | 31 May 2017 |
| Neutral Citation | [2017] CSIH 35 |
| Court | Court of Session |
| Docket Number | XA93/15 |
| Published date | 31 May 2017 |
| Date | 31 May 2017 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 35
XA93/15
Lord Brodie
Lady Clark of Calton
Lord Glennie
OPINION OF THE COURT
delivered by LADY CLARK OF CALTON
in the Appeal
under section 13(2) of the Tribunals Courts and Enforcement Act 2007
by
SECRETARY OF STATE FOR WORK AND PENSIONS
Appellant
against
(FIRST) THE CITY OF GLASGOW COUNCIL
(SECOND) IB
Respondents
Appellant: Webster; Office of the Advocate General
Second Respondent: Irvine; Balfour + Manson LLP
31 May 2017
The main issue in the Appeal
[1] This statutory appeal, under section 13(2) of the Tribunals Courts and Enforcement Act 2007, from a decision of the Upper Tribunal (Administrative Appeals Chamber) dated 16 May 2015, is concerned with the assessment of housing benefit under the Housing Benefit Regulations 2006 as amended (“the 2006 Regulations”). The main issue raised is the interpretation of the word “bedroom” which is contained in Regulation B13 inserted into the 2006 Regulations by the Housing Benefit and Universal Credit (Size Criteria) Miscellaneous Amendments) Regulations 2013 (“the 2013 Regulations”).
Parties to the Appeal
[2] The Secretary of State for Work and Pensions is the appellant. The City of Glasgow Council is the first respondent and is responsible for the administration of housing benefits. The landlord is a Housing Association. Neither the first respondent nor the landlord have appeared in proceedings in this case. The second respondent is the applicant for housing benefit and is designed in the pleadings as IB. In response to questions of the court, counsel representing the interests of IB explained that there was a Certificate of Guardianship dated 15 February 2013 and an interlocutor of Sheriff Normand dated 13 February 2013 making a Guardianship Order in respect of IB. The Certificate certified that, SO and her husband, DMO , who are the sister and brother in law of IB, were granted authority relating to IB in terms of the Guardianship Order dated 13 February 2013. Counsel was instructed by SO and DMO to appear and respond to the appeal proceedings in the interests of IB. Counsel took no issue about the form of the proceedings which designed IB alone as second respondent. Counsel advised the court that she was properly instructed by the guardians SO and DMO to appear in the interest of IB in the appeal. Counsel for the appellant also agreed that the appeal should proceed on that basis.
Summary
[3] Miss IB is an adult single woman who has a severe learning disability and autistic traits. She is unable to live on her own. She is a tenant of a property comprising five main rooms plus kitchen and bathroom which she rents from a Housing Association. She lives with SO and DMO who care for her. She is in receipt of housing benefit which is administered by Glasgow City Council.
[4] Glasgow City Council are bound to consider and apply the 2006 Regulation as amended in particular by the 2013 Regulations. The 2013 Regulations, which have been the subject of some controversy, have been referred to as the bedroom tax; spare room subsidy regulations; or more neutrally as the size criteria regulations. The dispute in this case principally relates to the interpretation of the word “bedroom” in Regulation B13 of the 2013 Regulations. Regulation B13 lists criteria to determine the number of bedrooms a claimant is deemed to need for the purpose of determining the appropriate maximum housing benefit. There is no definition of the word “bedroom” for the purposes of Regulation B13.
[5] The housing benefit of Miss IB was reduced by 25% by Glasgow City Council when they applied Regulation B13(3)(b) of the 2013 Regulations and concluded that she was under occupying the rented property by two bedrooms. Miss IB successfully appealed that decision to the extent that the First-tier Tribunal decided that the property had three (not four) bedrooms because:
“What was formerly a fourth bedroom on the ground floor was a livingroom at the relevant date and had been for a number of years”.
Accordingly the first-tier Tribunal concluded that a 14% discount was appropriate as the number of bedrooms in the property exceeded by one, the number of bedrooms to which Miss IB is entitled under the Regulations. Miss IB did not appeal that decision.
[6] The Secretary of State appealed the decision to the Upper Tribunal on the main ground that in determining whether a room was a bedroom for the purpose of the Regulations, in particular the 2013 Regulations, the appropriate test was not actual use or designation of the room but potential use to be assessed by looking at the property as if it was vacant. The Upper Tribunal refused the appeal by the Secretary of State and decided that on the facts found by the First-tier Tribunal, the designation of the fourth bedroom as a livingroom was not a family choice or designation but was set in place by the social worker who planned the return of Miss IB to her home with carers. The Upper Tribunal considered that the disputed issue was a question of fact which was properly determined by the First-tier Tribunal.
[7] The Secretary of State sought leave to appeal to the Court of Session and this was granted by the Upper Tribunal.
Regulation B13
[8] Regulation B13 was inserted into the 2006 Regulations by the 2013 Regulations and states:
“B13. - Determination of a maximum rent (social sector)
(1) The maximum rent (social sector) is determined in accordance with paragraphs (2) to (4).
(2) The relevant authority must determine a limited rent by—
(a) determining the amount that the claimant’s eligible rent would be in accordance with regulation 12B(2) without applying regulation 12B(4) and (6);
(b) where the number of bedrooms in the dwelling exceeds the number of bedrooms to which the claimant is entitled in accordance with paragraphs (5), to (7)
Reducing that amount by the appropriate percentage set out in paragraph (3); and
(c) where more than one person is liable to make payments in respect of the dwelling, apportioning the amount determined in accordance with sub-paragraphs (a) and (b) between each such person having regard to all the circumstances, in particular, the number of such persons and the proportion of rent paid by each person.
(3) The appropriate percentage is—
(a) 14% where the number of bedrooms in the dwelling exceeds by one the number of bedrooms to which the claimant is entitled; and
(b) 25% where the number of bedrooms in the dwelling exceeds by two or more the number of bedrooms to which the claimant is entitled.
(4) Where it appears to the relevant authority that in the particular circumstances of any case the limited rent is greater than it is reasonable to meet by way of housing benefit, the maximum rent (social sector) shall be such lesser sum as appears to that authority to be an appropriate rent in that particular case.
(5) The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant’s dwelling as their home (and each person shall come within the first category only which is applicable) —
(a) a couple (within the meaning of Part 7 of the Act);
(b) a person who is not a child;
(ba) a child who cannot share a bedroom;
(c) two children of the same sex;
(d) two children who are less than 10 years old;
(e) a child,
(6) The claimant is entitled to one additional bedroom in any case where—
(a) a relevant person is
A person who requires overnight care; or
(b) a relevant person is
a qualifying parent or carer.
(7) Where—
(a) more than one sub-paragraph of paragraph (6) applies the claimant is entitled to an additional bedroom for each sub-paragraph that applies;
(b) more than one person falls within a sub-paragraph or paragraph (6) the claimant is entitled to an additional bedroom for each person falling within that sub-paragraph, except that where a person and that person’s partner both fall within the same sub-paragraph the claimant is entitled to only one additional bedroom in respect of that person and that person’s partner.
(9) In this regulation ‘relevant person’ means—
(a) the claimant;
(b) the claimant’s partner;
(c) a person (‘P’) other than the claimant or the claimant’s partner who is jointly liable with the claimant or the claimant’s partner (or both) to make payments in respect of the dwelling occupied as the claimant’s home.
(d) P’s partner.”
The decision of the First-tier Tribunal dated 12 June and 20 August 2014
[9] So far as relevant to the appeal before this court, the First-tier Tribunal found:
“...
6. The appellant is a single woman. She was 54 years old when the decision under appeal was made. She has a severe learning disability and autistic traits. She is unable to live on her own. It appears that she had an award of the lower rate of the mobility component and the middle rate of the care component of Disability Living Allowance which was increased at some point after the decision was made to the higher and highest rates respectively.
7. The appellant is the tenant of the property in question .... It had previously been the family home occupied by the appellant’s parents and siblings. As described in the letter at pages 21/2, difficulties with the appellant’s care and continued occupation of the property arose after the death of her mother in April 2005. The appellant went to live with her sister, ..., and her sister’s husband, .... They were tenants of a 3 bedroomed property which they occupied along with their adult son and daughter.
8. The appellant moved back into her own home along with Mr and Mrs ... in the summer of 2009. She claimed Housing Benefit from 13.8.09.
9. The property comprises 5 main apartments plus kitchen and bathroom. It is classed by the landlord as a four bedroom property and was previously occupied by the appellant’s family as a four bedroom property....
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