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Category Archives: Welfare 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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Can’t get about? Get a taxi, disability benefit claimant told

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A man who says his anxiety and agoraphobia mean he cannot get to unfamiliar places unaccompanied has had his disability benefit claim rejected – on the grounds he could always get a taxi. The Devon man was denied Employment and Support Allowance (ESA), a decision upheld by a tribunal which said:

“We found on the balance of probability that he would be able to use a taxi for example to get to an unfamiliar place and that therefore he would be able to get to a specified place with which he was unfamiliar without being accompanied by another person.”

In evidence to the Upper Tribunal, where the man, known as AB sought permission to appeal, a lawyer for the Department of Work and Pensions insisted “where a claimant is taken to a destination in a taxi the taxi driver, who is simply providing a paid-for transport service, cannot be said to accompany that claimant”.

An Upper Tribunal judge has now referred the case back to the First-tier Tribunal raising the question of whether “in such circumstances, such a journey could not be described as one made ‘without being accompanied by another person’ given the presence of a taxi driver”.

The issue may be crucial to interpreting one of the ESA tests used to qualify for financial support for those who are unable to work. Number 15(c) on a list set out in the Employment and Support Allowance Regulations 2008 says: “Is unable to get to a specified place with which the claimant is unfamiliar without being accompanied by another person.”  Read the rest of this entry

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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Nzolameso and housing policy: Milton Keynes should not be the only option

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Once upon a time local councils could offer homeless people damp, mice-infested 28th-story flats on sink estates to discharge their responsibilities under the Housing Act 1996. Now they simply threaten to send them to Milton Keynes. But one cannot help thinking the UK Supreme Court has left the policy of “out-of-borough” placements (or “social cleansing” as even Boris Johnson acknowledged it to be) in disarray. The ruling in Nzolameso v City of Westminster means it will be very difficult for local authorities to justify sending people in housing need very far away for accommodation.

The legislation is pretty clear and explained in this 2006 Homelessness Code of Guidance: “Housing authorities must ensure that suitable accommodation is available for people who have priority need, if they are eligible for assistance and unintentionally homeless.” As a single mother of five children who was HIV positive and suffered other health issues, Titina Nzolameso was accepted by Westminster Council as being in priority need. The Council therefore had a duty to house her (known as the “main homelessness duty”). Whether shipping her out to a house in Bletchley, in Milton Keynes, was suitable is another matter. Nevertheless officials felt able to write to her:

“There is a severe shortage of accommodation in Westminster and it is not reasonably practicable for us to offer a Westminster home for everyone who applies for one. That is why we have had to offer you accommodation in Milton Keynes. Although it is outside Westminster, having considered your circumstances, we believe this accommodation is suitable for you.”

She turned the accommodation down as being too far from people helping her with her children and because she wanted to stay with her GP, also because it would mean changing her children’s schools and she had lived in Westminster for a long time. From December 2008 to November 2012, the family had lived in a privately rented four bedroom house in Westminster – until a cap on housing benefit kicked in and she was kicked out,  unable to afford the rent. Under the local housing allowance system rates of housing benefit for private tenants are calculated for each locality. The Westminster limit fell well below Nzolameso’s rent. Read the rest of this entry

Judge criticises Tower Hamlets over ‘Islamic State’ girls

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A judge has criticised Tower Hamlets council for misleading the High Court in its attempts to stop several girls fleeing Britain to join Islamic State (Isis). In comments unreported by the press Mr Justice Hayden, in the Family Division, said the police had been wrong-footed by the council’s court proceedings and Tower Hamlets “consciously misrepresented the extent of the police awareness of this application”.

Hayden had made the five girls wards of court, which meant they would have to seek permission of the court before going abroad. Tower Hamlets then successfully applied for an order to confiscate their passports, “a very significant incursion into the individual’s freedom and personal autonomy”, according to Hayden. Council officers had claimed the police had agreed this was the way to proceed, but this was untrue.

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Question’s unanswered in the Daniel Gauntlett inquest

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Daniel Gauntlett, who froze to death on the step of an empty boarded-up bungalow, died in possession of a letter from a doctor calling on the authorities to find him accommodation as a person in priority need. Mr Gauntlett, aged 35, was suffering from a collapsed lung and was a heavy drinker, a coroner’s inquest heard.

There was also evidence that suggested Mr Gauntlett, who died during a freezing February night in 2013, had been arrested and evicted by police from a previous building. Witnesses said he had not been squatting in the building in Aylesford, Kent, where he died but had lived in the garden.

Campaigners have claimed that he was in effect a victim of  Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012, which criminalised squatting in residential property. It had been suggested he “died as a result of obeying the law” because police told him not to squat the empty house.

It has been argued that Gauntlett’s human rights may have been breached either because the Government failed to put in place Article 2 European Convention (right to life) protections when it passed Section 144; or because the police or social services had failed to offer sufficient help to him.

However, the deputy coroner for Mid Kent, Kate Thomas, did not bring in a verdict under human rights “Middleton inquest” procedures, simply recording a verdict of “death a by natural causes exacerbated by self neglect”. No police witnesses were called to tell the court of any contact they had had with Gauntlett before he died or whether he had indeed been evicted from a squat or warned not to enter the bungalow.

Witness statements
Mr Gauntlett’s father, Donald, told the court the last time he had seen him, his son told him he had been arrested at another house, in London Street, Maidstone, and as a result had lost some of his clothes. His father gave him money to buy new ones. He said his son’s alcohol problems began when his younger brother died in a road traffic accident at the age of 18. Read the rest of this entry

Daniel Gauntlett hypothermia death verdict

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Note: A full report on this inquest is now in this post: Question’s unanswered in the Daniel Gauntlett inquest

A coroner has recorded a verdict of death by natural causes exacerbated by self neglect in the case of Daniel Gauntlett, a 35-year-old unemployed man who died on the step of an empty boarded up bungalow in Aylesford, Kent, in February 2013.

Campaigners have claimed that he was in effect a victim of  Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012, which criminalised squatting in residential property. It had been suggested he “died as a result of obeying the law” because police told him not to squat the empty house.

It has been argued that Gauntlett’s human rights may have been breached either because the Government failed to put in place Article 2 European Convention (right to life) protections when it passed Section 144; or because the police or social services had failed to offer sufficient help to him.

However, the inquest made barely any mention of the squatting issue. Nor was there any call for an examination of Gauntlett’s Article 2 rights under a “Middleton inquest” procedure. The court was told that Gauntlett died from hypothermia on a bitterly cold winter night. Evidence was given of his chronic alcoholism which his father said began when his younger brother died in a road traffic accident at the age of 18.

The deputy coroner for Mid Kent, Kate Thomas, sitting on 10 December 2014, had documentary evidence of Gauntlett’s accident and emergency admissions before her. A local community warden said Gauntlett had refused help on a number of occasions. No evidence was offered regarding squatting or any police intervention to stop him squatting the house he died in front of.

Read a fuller report of the inquest here: Question’s unanswered in the Daniel Gauntlett inquest

Twitter: alrich0660

An earlier piece on the death of Daniel Gauntlett is here
More on the squatting law on Thinking Legally: How protection of property could crumble
And a piece also Daniel Gauntlett inquest: human rights issues and the ‘Middleton’ procedure
Also a piece on Ministry of Justice guidelines on Nearly Legal here.

 

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