Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
All of the appeals related to the interpretation of the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013 regulation B13, which clarifies the circumstances where a claimant is entitled to a bedroom.
The cases that were put forward to the Supreme Court involved:
- A disabled child who required an overnight carer (Rutherford case);
- A disabled partner who could not share a room with her husband (Carmichael case);
- A disabled son regularly staying with father, but not for a significant part of the week (Daly case);
- A Claimant who suffered obsessive compulsive disorder and stored paperwork he accumulated in a room (Drage case);
- A Disabled daughter living with her father in a specially adapted property (JD case);
- One bedroom used to store equipment (Rourke case); and
- An adapted house to provide extra, high-level security under sanctuary scheme (Case A).
In both the Rutherford and Carmichael case, it was decided that as there was a clear and “transparent medical need” for the requirement of the extra room, then the support of a discretionary housing payment (DHP) would not suffice. These categories should be included and allowed as exemptions within the Regulations.
The court held there was an inexplicable inconsistency with the different treatment of adults and children. Disabled adults were allowed an extra room for an overnight carer but disabled children were not. Disabled children who required a separate room from another child, who they would usually be expected to share with, were allowed a separate room. However, adult couples where one is disabled were not expected to have separate rooms. The Secretary of State’s arguments were dismissed, and the amendments to the Regulations are expected to take place soon. This now clarifies the position and the treatment of adults and children in the circumstances above will be the same.
In the cases of JD, Rourke, Daly, and Drage, the Supreme Court did not find that the medical condition was directly connected to the reason for the requirement of the room. The use of the DHP scheme was sufficient to cover the shortfall from the bedroom tax on a case-by-case basis, and the Regulations did not need to include the specific circumstances of these cases.
In the case of A, the Supreme Court also found that there was not a requirement for A’s circumstances to be included beneath a separate heading under the Regulations’ requirement for a bedroom. The provision of DHP was again sufficient to deal with this on a case-by-case basis. In this case, it was also determined that there was no discrimination on the grounds of sex.
Additionally, it was established whether the Secretary of State breached the Public Sector Equality Duty and it was decided that the Secretary of State had considered the PSED and there was no breach.
For Registered Providers with customers that receive Housing Benefits subject to the bedroom tax, useful details to review would be as follows:
- Whether or not the local authority (or DWP) is making the correct benefit payment to the customers and whether they should be exempt from the bedroom tax;
- If they have made a DHP application; and
- If they are severely disabled adults or children with a clear medical need for an extra bedroom, as they should shortly be exempted from the bedroom tax regulations.
For more information
Please contact Zishaan Saleem for further information or advice on bedroom tax cases.
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