At a time when Theresa May has declared that a future Conservative Government would repeal the Human Rights Act 1998 (‘the Act’) and the Justice Secretary, Chris Grayling, is leading a review of the UK’s relationship with the European Court on Human Rights, it is heartening that the judiciary is prepared to apply the Act in a manner which, surely, will attract widespread public support.
On 26 September 2013, Tribunal Judge Boyd gave judgment in an appeal before the First-Tier Tribunal (Social Entitlement Chamber) in Glasgow, in which Glasgow City Council had argued that the appellant’s entitlement to housing benefit should be reduced because she under-occupied her two-bedroom flat.
Mrs F lives with her husband in a housing association property. She suffers from primary progressive multiple sclerosis and uses an electric wheelchair. Her flat had been adapted significantly to meet her needs. She is unable, however, to share a double bed with her husband, because of her disability, and the flat’s main bedroom will not accommodate a second, single bed. Mrs F sleeps, therefore, in the flat’s second bedroom.
The social sector size criteria – the criteria which regulate operation of the so-called "bedroom-tax" – prescribe that Mrs F is expected to share a bedroom with her husband. The flat’s second bedroom is considered spare. Glasgow City Council had, therefore, reduced Mrs F’s entitlement to housing benefit by 14%. Mrs F had, as a result, had fallen into arrears with her rent.
Tribunal Judge Boyd found that, without qualification, the criteria discriminated against Mrs F, by failing to treat her differently from other claimants with different needs, and breached her rights under Article 14 and Article 1 of the First Protocol to the Human Rights Act 1998. To make them compatible with Mrs F’s human rights, he qualified the criterion in question – Regulation B13(5)(a) of the Housing Benefit Regulations 2006 – by reading into it words (in bold below), which would enable Glasgow City Council to treat Mrs F differently.
Regulation B13(5)(a), Housing Benefit Regulations 2006
(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) or one member of a couple who cannot share a bedroom because of severe disability.
Where then does that leave local authorities who have to apply Regulation B13?
Important and interesting though it is, the decision has no binding or precedent value. It cannot yet be said, therefore, that the Regulations must be interpreted or applied by local authorities – Glasgow excepted – in accordance with Tribunal Judge Boyds’s interpretation. The Judge’s decision to read down Regulation B13(5)(a), so as to give effect to his findings about discrimination, was certainly bold and one that might be considered by some as “a stretch too far”.
It remains to be seen whether the Department for Work and Pensions will appeal the judgment. It may prefer to rely on the Divisional Court’s recent judgment in R (MA and others) v The Secretary of State for Work and Pensions  EWHC 2213 (QB) – though itself under appeal – in which Laws LJ found that the social sector size criteria were lawful: the provision of discretionary housing payments (DHPs) to help claimants meet their rental liability could not be said to be a disproportionate approach to the difficulties that some disabled people face as a result of reform. Equally, the DWP may be reluctant to risk creating a precedent judgment by taking the case to the Upper Tribunal.
At present, it seems likely that local authorities will apply Regulation B13(5)(a) in black-letter form and await requests for a review and appeals to the First Tier Tribunal, where decisions may or may not follow that of Tribunal Judge Boyd. The real issue in such cases will arise if the local authority loses any such appeal. It will then have to consider very carefully whether to apply the reasoning to similar cases in their area or take the case to the Upper Tribunal, at risk of setting a precedent. One thing is for sure, the next 12 months will be particularly interesting.