Initial Guidance
Court of Appeal judgment in the cases of Burnip, Trengove and Gorry
The judgment, announced on 15 May 2012, concerns the size criteria used in working out Housing Benefit through the Local Housing Allowance for those in the private rented sector. The judgment can be found at http://www.bailii.org/ew/cases/EWCA/Civ/2012/629.rtf
The Court of Appeal considered two separate scenarios where the Housing Benefit claimant needs an additional room for:
o a non-resident overnight carer. The Housing Benefit Regulations (both the working age and SPC versions) have already been amended to allow an additional room in such cases from April 2011, but the appellant continued his court case in relation to periods before that date.
o children with serious disabilities that are said to make it inappropriate for them to share a bedroom.
The Court of Appeal (overruling earlier decisions of the Upper Tribunal) unanimously held that the size criteria discriminated unlawfully against the three appellants, on grounds of disability, by not including provision to meet their need for an additional room. This was in breach of Article 14 of the European Convention on Human Rights (non-discrimination).
We will be carefully considering our response to the Court of Appeal judgment handed down today. This will effectively mean either seeking permission to appeal the decision to the Supreme Court or amending the Regulations in response to the judgment.
Meanwhile local authorities are legally bound to apply the Court of Appeal judgment when determining applications for Housing Benefit under the Local Housing Allowance size criteria:
Ø Those who need an extra room for a non-resident carer are already able to get Housing Benefit for that due to amendments made in April 2011. The judgment does not change that.
Ø Those whose children are said to be unable to share a bedroom because of severe disabilities will be able to claim Housing Benefit for an extra room from the date of the judgment.
However it will remain for local authorities to assess the individual circumstances of the claimant and their family and decide whether their disabilities are genuinely such that it is inappropriate for the children to be expected to share a room. This will involve considering not only the nature and severity of the disability but also the nature and frequency of care required during the night, and the extent and regularity of the disturbance to the sleep of the child who would normally be required to share the bedroom. This will come down to a matter of judgment on the facts. Local authorities should expect to be provided with sufficient medical evidence to satisfy themselves that these factors are sufficiently weighty in the individual case to make it inappropriate for the children to share a bedroom on a continual basis. Only in such circumstances will they be justified in making an exception to the normal application of the size criteria and granting Housing Benefit on the basis of an additional bedroom.
Local authorities should also bear in mind that any such decision may need to be reversed should an appeal by the Department be successful. They should therefore consider suspending the part of the HB award that relates to the extra room allowed as a result of the Court of Appeal judgment, pending any appeal by the Department, under Regulation 11(2)(b) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (SI 2001/1002). We will update this guidance as soon as we know whether an appeal is definitely being pursued.
These cases are all statutory appeals from the UT, so the anti-test case rule means the judgment has no impact on past periods in other cases. In Housing Benefit this rule is found in paragraph 18 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. Local authorities are however likely to have to pay arrears in other cases where the claimant had already put in an appeal and this had been held pending the outcome of these cases.
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