Human rights challenge to bedroom tax failed

The upper tribunal refused an appeal against a cut to a claimant’s housing benefit under the bedroom tax – or spare room subsidy – policy.

The appeal was brought by a tenant who is the sole occupant of a two-bedroom home. His second bedroom is used a few days of the week by his 14-year-old son, who lives with his mother for the remainder of the time.

The tenant argued that Glasgow City Councils’ decision to cut his benefit unjustifiably interfered with the tenant’s home, and private and family life and that of his child.

He argued that article 8 of the Human Rights Convention of Human Rights should have been taken into account by a first-tier tribunal, which upheld the council’s decision.

Upper tribunal judge John Wright found that the first-tier tribunal’s decision was ‘erroneous in law’, as it did not give adequate consideration to the human right argument. However, he found that the error was ‘not material’ to its decision to refuse the appeal.

The upper tribunal found that the interference with the tenant’s home and family life was not of sufficient ‘gravity’ to engage article 8. The tenant had been receiving discretionary housing payments (DHPs) to cover his entire benefit shortfall since 1 April 2013 and will continue to receive them until 31 March 2015.

In the judgment, Mr Wright said: ‘Put shortly, taking the DHPs into account, there is not interference of any gravity at all with the appellant’s article 8 right or that of his son.’

The Department of Work Pensions’ advocate pointed out that the tenant had remained in his house, had not lost the tenancy and exercises the same child care as before. Therefore, even if the shortfall in benefit had not been covered through DHPs, the interference was not of sufficient gravity to engage article 8.

The judge said: ‘I have decided the case particularly on DHPs but would add that I think an appellant who is not able to show actual – as opposed to threatened – serious breaches of his home and family life may well find it difficult to overcome this particularly hurdle in an article 8 argument.’

In another upper tribunal case, a judge dismissed an appeal from a tenant against first-tier tribunal upholding another bedroom tax decision made by Glasgow City Council.

A disabled tenant living alone in a two-bedroom flat claimed that the council’s decision to cut his benefit breached the Equality Act 2010. The upper tribunal upheld the first-tier tribunal’s decision, saying ‘there was no error of law’.

Giles Peaker, partner at law firm Anthony Gold Solicitors, said: ‘These cases show the detailed consideration that human rights and discrimination cases will get in the upper tribunal. And it is clear that it will be a high threshold.’