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.
Sitting alongside those local cases, there have been a number of high-profile decisions considering the issues arising – this briefing sets out those cases.
R (on the application of Ma & Ors) v Secretary of State for Work and Pensions & Birmingham City Council
This was a High Court decision made at the end of July. The Claimants were 10 individuals all who claimed housing benefit and who were affected by disabilities (either they or a member of their household was disabled). The Claimants launched a judicial review challenge arguing that the deductions for a spare bedroom were discriminatory in breach of Article 14 (prohibition on discrimination) of the European Convention of Human Rights, and that the measures were a breach of the Secretary of State’s Public Sector Equality Duty (PSED) under the Equality Act 2010.
The Court held there was no discrimination and that there was no breach of the PSED, essentially because of the approach of the Secretary of State was a reasonable one with a clear policy basis.
‘The Fife Decisions’
These were five cases issued in the Scottish Tribunal. The Tribunal Chair decided in four of the cases that the local authority should not have applied a deduction for a spare room. Most interestingly, in two of the cases, that decision was taken because the Chair said that certain rooms were not bedrooms as they did not meet the size criteria in the overcrowding legislation.
As the decisions were in the Scottish First-Tier Tribunal, they are not binding. However they have generated huge publicity so we fully expect that tenants will try to rely on the decisions and comments where a room does measure 70 square feet (for adults) or 50 square feet (for children under the age of 10). The DWP has confirmed that it will be appealing the decisions on the basis the two legislative schemes are intended to be separate and the DWP guidance indicates that it is for a landlord to determine what is a bedroom: landlords should rely on that position if faced with this argument in defence.
Glasgow Tribunal Case
In this decision, the First-Tier Tribunal held that a lady who suffered from progressive multiple sclerosis and her husband were not under-occupying their two bedroomed house. The Tribunal looked at the particular needs of the lady and determined that her and her husband required separate bedrooms.
The Tribunal Judge commented that if the Regulations were not interpreted so as to allow this exception, the Regulations would breach Article 14.
Mr Lall appealed against a decision of Westminster Council to deduct 14% from his housing benefit. The Council had made the deduction on the basis the second bedroom at his property was a spare bedroom.
Mr Lall was successful in his appeal, arguing that the second room had never been used as a bedroom, but was used to store equipment to assist him with his work and life as he was blind. The Judge looked at the ordinary meaning of the bedroom and its actual use over time.
This is without doubt a developing area of law and we do expect the issues will have to be decided by the Higher Courts sooner rather than later. The above cases do demonstrate that decisions will vary according to a household’s very particular circumstances so a blanket approach cannot be taken.
We are keen to hear your experiences of these issues to help us identify patterns and trends across Courts and different local areas: this is particularly important to get a more balanced perspective of the above cases.
For more information
If you would like more information on these cases or welfare reform generally, please contact Emma Duke, Senior Associate, on 0121 214 3617 or at firstname.lastname@example.org.
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