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Category Archives: Property law

Bedroom tax case: don’t forget the ECHR

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Not enough has been said about the human rights legal dimension to the successful bedroom tax cases in the Supreme Court. It is important for two reasons:

  1. The cases succeeded thanks to Britain’s adherence to the European Convention on Human Rights where homegrown “British” law was unable to help (apart from the Human Rights Act, giving access to ECHR remedies). Neither English Common Law nor British parliamentary anti-discrimination legislation could assist either the Rutherfords or Jacqueline Carmichael gain exemption from having housing benefit docked  for their “extra” bedrooms.
  2. An earlier judgment of one of the cases, when it came before Lord Justice Laws, was intended to place a clear marker down discouraging such  cases based on ECHR rights on the grounds that “the courts are not the proper arbiters of public controversy”. The Supreme Court has therefore repudiated Laws’ attack on ECHR remedies.

The legal cases
The cases challenged the bedroom tax regulation on the grounds that it failed to give entitlement to an extra bedroom (without having housing benefit reduced) in cases where the bedrooms were needed for disabled people. The regulation restricts exemptions to “a relevant person … who requires overnight care; or a relevant person [who] is a qualifying parent or carer” (Regulation B13 (6). The relevant person (in paragraph 9) is the housing benefit claimant, his/her partner or another person liable to pay rent and his/her partner (see regulations below in full). But, as Lord Toulson noted in the latest case: “A person who requires overnight care is defined in Reg 2(1) in terms which have the effect of not including any child”.
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Rutherford and Others bedroom tax case: hold the celebrations

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Anti-bedroom tax campaigners are very pleased about the Court of Appeal case that has found unlawful discrimination in an element of the Government’s policy to punish “under-occupiers” of social housing. Sadly their joy may be premature. The Court of Appeal’s ruling in Rutherford and Others v Secretary of State [2016] EWCA Civ 29 was very much a holding judgment. When the case is reviewed in the UK Supreme Court (Note: the Rutherfords have now won their case in the Supreme Court: see note at end) the issues of right and wrong about how we treat disabled people or rape victims will be largely overlooked. Instead issues of legal proceduralism, high policy (plus low politics) and constitutional wrangling are likely to hold sway.

The essence of the case for the Rutherfords, who care for a disabled grandson, and for “A”, a rape victim (who has a son by her rapist) and has a panic room in her house, is that their situations should have been covered by exceptions to the Bedroom Tax provisions (ie the cut in Housing Benefit when a family has “extra” rooms).

If the benefit claimant is disabled or has a disabled partner an exemption might apply (if overnitght care is required). But not if a benefit claimant is caring for a disabled child. And there is no mention of rape victims in fear of further attack. There is, though, a system of Discretionary Housing Payments (DHP) for those who might have needs “which could be met by DHP”. They are administered by the relevant local authority.

The claimants’ case is that their exclusion in the legislation (Regulation B13, set out here) from the categories whose position “has to be taken into account” (in the clumsy phraseology of the regulation) is unlawful discrimination under Article 14 of the European Convention on Human Rights (ECHR) (and under public sector equality duty under s.149 of the Equality Act 2010) – on grounds of sex for A and disability for the Rutherfords and their grandson.

The Secretary of State, Iain Duncan Smith, acknowledges the prima facie discrimination. The issue therefore became: is there an “objective and reasonable justification for that discrimination which was not manifestly without reasonable foundation”. Broadly the defence is that the DHP is there to cover categories of people who don’t have to be taken into account under Regulation B13 but may have good cases for an exemption. Although their housing benefit would be reduced, DHP might (if the local authority agrees) fill the gap.

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Neuberger explains his Arnold v Britton judgment

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Lord Neuberger, President of the UK Supreme Court, has offered useful insight into his intentions behind the controversial Arnold v Britton judgment that left holiday chalet leaseholders facing bills adding up to millions of pounds for services (critiqued here: Neuberger abolishes common sense).

In a talk to members of the Leasehold Valuation Tribunal* he underlined his commitment to a literal approach to be taken by courts when reading contracts, leases and legislation. But he rejects any suggestion that he has “changed the law” with the Arnold judgment. He considers the judicial art of “construction” – construing the true meaning of the document in question – and sets his judgment within the context of 40 years of judicial contractual interpretation. 

Construction
A judge’s role in “construction” or interpretation of contracts, is to identify the intention of the parties “by interpreting the words used in their documentary, factual and commercial context”, Neuberger said [referring to a case on wills in which he had made this point last year, Marley v Rawlings.] 

The principles for construing contracts and legislation were similar and leases should be treated no differently since, like contracts, they have “commercial consequences”.  

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Neuberger v M&S: was the BNP case really necessary?

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One has to ask: why did the UK Supreme Court even bother to hear, at vast public expense, the case of Marks & Spencer v BNP Paribas – in which M&S threw good money after bad in the hope of getting a few hundred thousands back from the landlords of their former London HQ in St Pancras Bay.

The money at stake isn’t the point. Was there a real issue of public interest such that the Supreme Court should have heard the whole matter again in order to come to the same view as the Court of Appeal a year earlier?

But the fact is that Lord Neuberger, President of the Supreme Court, is a man on a mission – to impose his literal interpretation of the world on the world of law. And this case was an ideal opportunity for him to drive the point home.

The legal point was simple enough: There was no term in the lease under which M&S would receive back prepaid rent after exercising a break clause and vacating the premises. So could such an apparently just and fair clause be implied into the lease “in the light of the express terms, commercial common sense, and the facts known to both parties at the time the contract was made”?  Read the rest of this entry

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