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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rutherford & Ors v Secretary of State for Work And Pensions (Rev 1) [2014] EWHC 1631 (Admin) (30 May 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/1631.html Cite as: [2014] EWHC 1631 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| (1) Susan Rutherford (2) Paul Rutherford (3) Warren Todd (by his litigation friend Susan Rutherford) |
Claimant |
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| - and - |
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| Secretary of State for Work and Pensions |
Defendant |
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| -and- |
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| Pembrokeshire County Council |
Interested Party |
____________________
Clive Sheldon QC and Gemma White (instructed by Treasury Solicitor' Department) for the Defendant
Hearing date: Wednesday 14 May 2014
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Crown Copyright ©
Mr Justice Stuart-Smith:
Introduction
The Factual Background
The Scheme
"The Government welcomes the Committee's endorsement of the policy to introduce an extra bedroom for non-resident carers. The Government's decision to acknowledge the need for an extra room for these carers within the size criteria for Housing Benefit has to be taken in the context of the tight fiscal climate and the priority this relatively small group has been afforded. It recognises that funding for this particular need has in the past been met through several different sources such as social services and Discretionary Housing Payments. The presence of an overnight carer allows these individuals to live independently and the change simplifies and clarifies the funding arrangements.
Representations made to the Department have mainly concerned people who need help to live on their own. The move away from residential accommodation to independent living has seen an increase in people with more intense care needs requiring this sort of assistance. Where care is required for a child this is more often provided from within the household. Housing Benefit is not designed to meet every individual circumstance and it would be complex to introduce different rules for the situations such as those described by the Committee and to establish a need in each case.
Where the local authority is satisfied that an additional room is necessary as it would be beneficial, that authority can make a Discretionary Housing Payment where they consider there is sufficient justification for additional payments to meet any potential shortfall between Housing Benefit and actual rent payable. Providing certainty that Housing Benefit will, in future, meet the costs of an additional room for a non- resident carer should help free up funds within Discretionary Housing Payment budgets and allow local authorities to use their discretion to meet the costs in the types of circumstances the Committee describes. Housing Benefit already takes account of resident live-in carers where that carer is not part of the claimant's assessment unit. The Government has no plans to extend this measure further."
"Disabled children who need a carer must also be permitted to have another room. It is not permitted under the regulations at the moment. Will exemptions cover families with those particular needs?"
The minister's initial reply was:
"… when it comes to the social-rented sector, the size criteria already allow a room for an overnight non-resident carer. The court case that we were talking about was linked case in that there were two disabled children who needed separate rooms. Obviously this is a complex legal issue, but because it is before the courts and we are seeking leave to appeal, I will not go too much further. …"
He then clarified his reply by adding:
"For the avoidance of doubt, I want to clarify this point about the court case, disabled children and so on. The rules about having a spare bedroom for an overnight carer, which is the Burnip case, are specifically about the claimant or a partner, so we are talking about adults. The Gorry case extends the rights to allow disabled children to have their own room, and those issues are under appeal currently, just in case I created any confusion, We already allow a spare bedroom for a carer for a claimant or a partner, just to clarify that point."
"Support for disabled people living in significantly adapted accommodation
2.4 The Government has added additional funding to the DHP fund from 2013/14, specifically aimed at supporting disabled people living in significantly adapted accommodation – including any adaptations made for disabled children.
2.5 For claimants living in specially adapted accommodation, it will sometimes be more cost-effective for them to remain in their current accommodation rather than moving them into smaller accommodation which needs to be adapted. We therefore recommend that local authorities identify people who fall into this group and invite a claim for DHPs.
2.6 There is no definition of significantly adapted accommodation. It is up to LAs to decide what constitutes significantly adapted accommodation, based on local knowledge and individual circumstances.
2.7 The allocation of the additional funding for disabled people broadly reflects the impact of this measure and the additional funding needed to support this group. However, due to the discretionary nature of the scheme, LAs should not specifically exclude any group affected by the removal of the spare room subsidy or any other welfare reform. It is important that LAs are flexible in their decision making.
2.8 For example, where there has been no significant adaptation to a property but a member of the household has a long term medical condition that creates difficulties in sharing a bedroom, we recommend that DHPs are also considered in these circumstances "
"5.4 You may wish to consider whether the following apply.
- Does the household have health or support needs which require them to remain in a particular property?
- Does the household have a health problem which means that the choice of housing is restricted either temporarily or permanently?
- Does the claimant require an extra room because of a health problem that affects them or a member of their household?
…"
"6.15 Some groups you may want to assist to stay in their home are, for example:
…
Where the claimant or someone in their household has a disability which requires them to have a larger property than would usually be the case for the size of their household due to, for example, a medical condition that might mean they are unable to share a bedroom."
The Claimants
The Legal Framework and the Principles to be Applied
i) To introduce Regulation B13(5)(ba) to include a child who cannot share a bedroom as an additional criterion entitling a claimant to have an additional bedroom;
ii) To amend Regulation B13(6) and (7) and to introduce Regulation B13(9) which adjusted the definition and categories of those adults whose presence would entitle the Claimant to one or more additional bedrooms.
i) There were three appeals heard together. In two of them (Burnip and Trengove) the Claimants had disabilities which gave rise to the need for a carer to stay throughout the night; in the third (Gorry) the Claimant had two children aged 10 and 8 who suffered from disabilities which meant that they could not share a bedroom;
ii) In each case the Claimants rented properties in the private sector which was subject to a different statutory scheme from that applying in the social rented sector both before and after 1 April 2013;
iii) The private sector scheme meant that, while neither able-bodied nor disabled persons were provided with a benefit which would amount to a complete subsidy against their rent, the shortfall for disabled persons such as the Claimants was significantly greater because their HB was geared to one room fewer than their objective needs;
iv) Mr Burnip had applied for a DHP. For some of the relevant period no DHP had been awarded to him and for the rest of the period the DHP which had been awarded was insufficient to cover the difference between the one and two bedroom rates of Local Housing Allowance (i.e. the greater shortfall which he suffered because his HB was geared to one room fewer than his objective needs), let alone the full amount of the shortfall from the rent which he actually had to pay. Ms Trengove received DHP from March 2009 onwards which was sufficient to make up the shortfall she would otherwise have suffered; but she received no DHP between October 2008 and March 2009, leaving the whole of the shortfall unrelieved for that period. Mr Gorry received DHPs between December 2008 and January 2009 which provided partial relief against his shortfall, and DHPs between January and April 2009 which covered the shortfall in full; but no payments were made between July and November 2008 and from 2 April 2009 until the end of his tenancy in December 2010. So, in each case, the existence of DHPs had not plugged the greater gap between their HB and their rent that was left by the relevant Regulations resulting in a payment geared to one room fewer than their objective needs.
i) Given the existence of a prima facie case of discrimination pursuant to Article 14, the Secretary of Sate must establish that there was at the material time objective and reasonable justification for the discriminatory effect of the relevant HB criteria under the Regulation as they applied to the particular circumstances of the Appellants: see [26];
ii) A difference of treatment lacks objective and reasonable justification "if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised": see [27];
iii) A wide margin of appreciation is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. The Court will generally respect the legislature's policy choice unless it is "manifestly without reasonable foundation": see [27].
"…Discretionary housing payments were in principle available as a possible way of bridging this gap, but they cannot in my judgment be regarded as a complete or satisfactory answer to the problem. This follows from the cumulative effect of a number of separate factors. The payments were purely discretionary in nature; their duration was unpredictable; they were payable from a capped fund; and their amount, if they were paid at all, could not be relied upon to cover even the difference between the one and two bedroom rates of LHA, and still less the full amount of the shortfall. To recognise these shortcomings is not in any way to belittle the valuable assistance that discretionary housing payments are able to provide, but is merely to make the point that, taken by themselves, they cannot come anywhere near providing an adequate justification for the discrimination in cases of the present type." [Emphasis added]
"A further aspect of the problem is that housing, by its very nature, is likely to be a long term commitment. This is particularly so in the case of a severely disabled person, because of the difficulty in finding suitable accommodation and the probable need for substantial physical alterations to be made to the property in order to adapt it to the person's needs. Before undertaking such a commitment, therefore, a disabled person needs to have a reasonable degree of assurance that he will be able to pay the rent for the foreseeable future, and that he will not be left at the mercy of short term fluctuations in the amount of his housing-related benefits. For the reasons which I have given, discretionary housing payments cannot in practice provide a disabled person with that kind of assurance." [Emphasis added]
"Regulation B13 applies the bedroom criteria to public sector tenants so as to determine the number of bedrooms the claimant's household is deemed to need for the purpose of determining the appropriate maximum HB. Having applied the bedroom criteria, the decision-maker then applies specific additional criteria to certain categories of persons ("the additional categories"). Once an applicant's deemed need has been assessed, the overall scheme then provides for an inquiry into any further case-specific actual need, which is carried out by the local authority decision-maker on receipt of an application for additional assistance. This is done by a consideration of individual circumstances in order to determine whether to make additional contributions by way of Discretionary Housing Payments ("DHPs"). This is the scheme provided for by the Discretionary Financial Assistance Regulations 2001 ("the DFA Regulations")."
i) Mrs Carmichael had disabilities that meant that she could not share a bed with her husband, and there was no room for a second bed in one room. She therefore had an objectively ascertainable need for a second bedroom. She lived in a two-bedroom flat but had been assessed under the sizing criteria as entitled to one bedroom only. The couple had been awarded a 6-month DHP which covered the shortfall between their HB and the rent;
ii) JD lived with her disabled 26-year-old daughter, AD, in a specially adapted three-bedroom property where they had lived since 1993. The adaptations had been made with input from the family, an occupational therapist and a property development team. AD's twin brother had previously lived in the property but had now moved out. JD was assessed as qualifying under the Regulation for a two-bedroom property. She had been awarded a six-month DHP until the end of September 2013, but had been informed that the DHP was unlikely to be renewed thereafter.
i) The scheme, including the 2012 Regulations and the provision for DHPs, should be considered as a whole: see MA at [40];
ii) It is for the Secretary of State to justify the different treatment under Regulation B13 afforded to Claimants where an adult living as part of the family requires the assistance of an overnight non-residential carer as opposed to where the person requiring the assistance of an overnight non-residential carer is a child: see MA at [48];
iii) The Secretary of State's justification will be rejected if, after careful scrutiny, it is found to be "manifestly without reasonable foundation." The Secretary of State has a wide margin of appreciation in matters of economic or social policy, including the distribution of state benefits: see Burnip at [27] and MA at [49]-[56];
iv) A difference of treatment lacks objective and reasonable justification "if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised": see Burnip at [27];
v) The fact that the Regulations were approved by affirmative resolution in both Houses of Parliament must be firmly borne in mind and calls for considerable caution before the Courts will hold them to be unlawful. As was noted by Lord Dyson MR "the effect of the 2012 Regulations (as amended) in conjunction with the DHP scheme on the position of disabled persons was well understood by Parliament.": see MA at [57];
vi) It is not sufficient for the Claimants to "expose some flaws in the scheme" or to contend that the justification is "not particularly convincing". The Court must be satisfied that there is a "serious flaw in the scheme which produces an unreasonable discriminatory effect.": see MA at [80].
i) It concluded that Regulation B13 discriminates against disabled persons on the grounds of disability for reasons that are similar or identical to the reasons applied by the Court of Appeal in Burnip: see [47];
ii) It rejected the suggestion that Burnip was determinative of the issue, for the reasons summarised at [29] above: see [64];
iii) It distinguished Burnip on three aspects of the facts. First, it could not be said that the category of persons it was sought to exclude from the bedroom criteria was "very limited" as had been the case in Burnip. Second, the cases within the category were not likely to be very few in number, easy to recognise, not open to abuse and in no need of monitoring. Third, the DHP fund had since been increased and the Court of Appeal in Burnip was apparently unaware of the repeated statements by the Department that the fund would be kept under review and topped up if necessary; or of the fact that the fund had been increased in size and the DHP Guidance altered: see [71]-[72];
iv) It accepted the evidence of Ms Walsh, the lead official on Housing Benefit policy, that an attempt to define the categories of persons to be excluded would either have to be imprecisely drawn or would involve administratively intensive and costly process to implement: see [73];
v) It accepted the evidence of Ms Walsh that the needs of disabled persons may change and that DHPs provided increased flexibility: see [74];
vi) It took into account the point that DHPs are administered by local authorities who are accountable locally for the money they spend, which imposes a greater level of financial discipline than that applicable in relation to HB: see [75].
i) First, the "manifestly without reasonable foundation" test is a stringent test which "requires the court to be satisfied that there is a serious flaw in the scheme which produces an unreasonable discriminatory effect." This point implies that a scheme which, viewed overall, eliminates or ameliorates the identified prima facie discrimination to the extent that there is no substantial residual detriment will not be struck down by the Court;
ii) Second, "the need for the Court to be cautious about finding unlawful discrimination of a statutory instrument passed by affirmative resolution of Parliament is heightened by the fact that some of the principal complaints that are made by the claimants were expressly raised and discussed during the Parliamentary debates and rejected.";
iii) Third, the Secretary of State had explained in detail his reasons for structuring the scheme in the way that he had, which included that "central to his thinking is the idea that there are certain groups of persons whose needs for assistance with payment of their rent are better dealt with by DHPs than HB."
"the democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament."
"61 The Human Rights Act 1998 requires the court to exercise a new role in respect of primary legislation. This new role is fundamentally different from interpreting and applying legislation. The courts are now required to evaluate the effect of primary legislation in terms of Convention rights and, where appropriate, make a formal declaration of incompatibility. In carrying out this evaluation the court has to compare the effect of the legislation with the Convention right. If the legislation impinges upon a Convention right the court must then compare the policy objective of the legislation with the policy objective which under the Convention may justify a prima facie infringement of the Convention right. When making these two comparisons the court will look primarily at the legislation, but not exclusively so. Convention rights are concerned with practicalities. When identifying the practical effect of an impugned statutory provision the court may need to look outside the statute in order to see the complete picture, as already instanced in the present case regarding the possible availability of a restitutionary remedy. As to the objective of the statute, at one level this will be coincident with its effect. At this level, the object of section 127(3) is to prevent an enforcement order being made when the circumstances specified in that provision apply. But that is not the relevant level for Convention purposes. What is relevant is the underlying social purpose sought to be achieved by the statutory provision. Frequently that purpose will be self-evident, but this will not always be so.
62 The legislation must not only have a legitimate policy objective. It must also satisfy a "proportionality" test. The court must decide whether the means employed by the statute to achieve the policy objective is appropriate and not disproportionate in its adverse effect. This involves a "value judgment" by the court, made by reference to the circumstances prevailing when the issue has to be decided. It is the current effect and impact of the legislation which matter, not the position when the legislation was enacted or came into force. …" [Emphasis added]
"… it is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments. The proportionality of legislation is to be judged on that basis. The courts are to have due regard to the legislation as an expression of the will of Parliament."
However, the language of enactments falls to be understood in context. More to the point, where an overall scheme has been put in place, it would be idle to assert that the intention of the scheme as a whole must be divined from the language of one part of it.
The Issue
Justification: is Regulation B13 manifestly without reasonable foundation?
i) First, it is abundantly clear that the intention of the scheme as a whole is that DHPs should be used to plug the gap where, if Regulation B13 were to be viewed and applied in isolation, a person with an ascertained need for an additional bedroom would otherwise be the subject of discrimination on the grounds of disability. This intention does not emerge from the terms of the 2012 Regulations alone; but it emerges clearly from the materials set out in MA at [23]-[35] and at [6]-[10] above. Having considered the risks, advantages and likely criticisms of a DHP approach the Government decided knowingly to restrict the size criteria, to increase the monies for DHPs, and to monitor how the scheme worked in practice with a view to increasing the monies further if necessary;
ii) Second, in the event, it has not yet proved necessary to increase the monies available for the DHP fund. To the contrary, Pembrokeshire underspent in 2013-2014 and returned part of its allocated fund for that year; and it received an increased fund for 2014-2015;
iii) Third, although the awarding of DHPs remained discretionary, the position of disabled people living in specially adapted accommodation (a category which includes Warren and his grandparents) was specifically identified in the Good Practice Guide as being a category for whose support additional funds had been allocated to the DHP fund: see [8] above;
iv) Fourth, the Good Practice Guide also identified households having a health problem which meant that the choice of housing is restricted and claimants requiring an extra room because of a health problem that affects them or a member of their household (both of which include Warren and his grandparents) as groups meriting consideration: see [9] and [10] above;
v) Fifth, the award of DHPs by Pembrokeshire to the Claimants has plugged the gap and continues to do so. They have suffered and suffer no financial detriment as a consequence of being funded in part by the DHP conduit rather than entirely pursuant to the 2012 Regulations.
"110. The regulations which introduced an extra bedroom for a non-resident overnight carer, where the claimant or partner required such care were made as part of a package of changes that were announced as part of the emergency budget in 2010. An Equality impact Assessment was produced in relation to all of these changes, and the impact of the changes on families was discussed.
111. The regulations were referred to the Social Security Advisory Committee ("SSAC") pursuant to section 172 of the Social Security Administration Act 1992. SSAC consulted on the regulations and produced lengthy recommendations in respect of the proposals. The consultation by SSAC produced the largest number of responses that it had received in a consultation exercise for some time. SSAC did not, however, make any recommendations in respect of extending the definition of a person who requires overnight care to cover children.
112. The Work and Pensions Committee also looked at the regulation and recommended that the provision be extended to cover disabled children in a similar position. The Government considered this recommendation and responded to it. In its response it stated:
"[Here Ms Walsh included the passage set out at [6] above.]"
113. For the reasons above the Government made no further changes to the regulations.
114. Dependent children or adult non-dependents who live in the HB claimant's household cannot by definition live independently and as such the cost for non- resident overnight carers in respect of them should not be covered by HB. To allow an additional bedroom for this purpose would currently cost approximately £60 million per annum[4]. In addition children, whether disabled or not, remain the responsibility of their parents or guardians and in the majority of cases involving children all or most of the care is provided by the parents, which illustrates the need for individualised assessment.
115. The Government has indeed recognised, that there are situations where a claimant or their family may require further financial assistance, and for this reason additional funding was made available via the Discretionary Housing Payments (see paragraph [52] to [54]). The DHP Guide was substantially redrafted from 1st April 2013 to cover all aspects of welfare reform particularly the impact upon disable people and has recently been updated. "[Here Ms Walsh included the passages set out at [8-10] above and other passages from the Good Practice Guidance.]"
116. It is clear from the above that the Government has also recognised a wide range of circumstances where the DHPs would be appropriate and this includes the present situation. I understand that the first claimant and partner have permanent care of their teenage grandchild who is severely disabled and for whom they receive the highest rate of both the care and mobility components of disability living allowance (currently £138.05 per week) as well as a DHP, which shows that the system that the Government has put in place to mitigate hard cases is working.
117. A non-resident overnight carer stays at the property approximately two nights a week however they do not receive extra HB for this as the grandchild remains the responsibility of his grandparents.
118. There are other circumstances where non-resident carers may provide care to a household member but HB is not paid in respect of this, for example:
- Adult non-dependents;
- Claimants or joint tenants (or their partners) who do not physically have an extra bedroom to accommodate an overnight carer.
This doesn't prevent that care from being given, it just means that an overnight carer may have to utilise another room in the property
119. In addition where a non-resident overnight carer provides respite care, specifically to allow parents to catch up on sleep, it is assumed that that carer will not require a bedroom as they should be awake looking after the child."
i) Mr Drabble QC concentrated on the fact that DHPs are by definition discretionary, while the provisions of the Regulation are mandatory. That is correct, but the practical reality is that the purpose of the scheme as a whole is to provide full cover for the Claimants' rent and it is fulfilling that purpose. What is more, for the reasons outlined above, there is an adequate level of assurance that Pembrokeshire will continue to award DHPs to fund the gap, assuming always that the scheme and the Claimants' circumstances do not change;
ii) It is true that Pembrokeshire initially refused the Claimants' application. However, whether or not it was influenced by media publicity, political or legal pressure, it subsequently granted a DHP for 2013/2014 and subsequently for the current financial year. This was in accordance with the intention of the scheme and there is no reason to suppose that it will not do so in the future;
iii) The first and second Claimants found the process of applying for the DHP to be time consuming and stressful, particularly until Pembrokeshire reversed its initial decision. Now that the structure and intention of the scheme is understood, there is no reason for such delays or the needless infliction of undue stress to be repeated.
Discretion
Conclusion
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;
(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) the claimant or the claimant's partner is (or each of them is) a person who requires overnight care; or
(b) the claimant or the claimant's partner is (or each of them is) a qualifying parent or carer.
(7) The claimant is entitled to two additional bedrooms where paragraph (6)(a) and (b) both apply.
(8) For the purposes of determining the number of occupiers of the dwelling under paragraph (5), the relevant authority must include any member of the armed forces away on operations who—
(a) is the son, daughter, step-son or step-daughter of the claimant or the claimant's partner;
(b) was the claimant's non-dependant before they became a member of the armed forces away on operations; and
(c) intends to resume occupying the dwelling as their home when they cease to be a member of the armed forces away on operations.
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 of 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.
(8) For the purposes of determining the number of occupiers of the dwelling under paragraph (5), the relevant authority must include any member of the armed forces away on operations who—
(a) is the son, daughter, step-son or step-daughter of the claimant or the claimant's partner;
(b) was the claimant's non-dependant before they became a member of the armed forces away on operations; and
(c) intends to resume occupying the dwelling as their home when they cease to be a member of the armed forces away on operations.
(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.
Note 1 See Claimants’ skeleton at [6] and Secretary of State’s skeleton at [4]. [Back] Note 3 Taken from the judgment of Laws LJ in MA in the Divisional Court at [54] [Back] Note 4 This figure would be the cost of allowing for an extra bedroom for all over-night carers whether they were providing waking or sleeping care. The implication is that DHPs may be used at lesser cost to provide for those who can show a need for their carers to have a bedroom. [Back] Note 5 “… all disabled children and disabled people who need more space for wheelchair access, a guide dog, essential equipment, or a live in carer, or where a child is unable to share with a sibling due to disability.” [Back]
