A Court has ruled today that a couple, one of whom has severe disabilities and therefore need a second room for medical reasons, should have been provided with their fair entitlement to housing benefit prior to the date on which the new Regulations (which applied the Supreme Court’s ruling on the Bedroom Tax) came into force.

Jayson Carmichael and his wife Jacqueline Carmichael, successfully challenged the ‘Bedroom Tax’ in judicial review proceedings heard in the Supreme Court; the judgment being handed-down in November 2016.

The country’s highest court ruled that the Government had unlawfully discriminated against Mrs Carmichael through the implementation of the under-occupancy rules.

Jayson and Jacqueline live in a two-bedroom adapted flat. Jacqueline has spina bifida and because of her related health problems is unable to share a bedroom with her husband.

Despite the couple's need for a two-bedroom property, they were informed in March 2013 that their housing benefit award was to be reduced by 14%, as a result of the ‘Bedroom Tax’.

Mr Carmichael appealed this decision to the First-tier Tribunal (FTT), the specialist tribunal which deals with social welfare issues, and in 2014, his appeal was successful. The Judge found that the Carmichaels were entitled to two bedrooms and that the under-occupancy reduction of 14% should not have been imposed.

The Government chose to appeal this decision arguing that the remedy given in the FTT (to dis-apply the Bedroom Tax) is not one which can be provided by that Court.

The Government’s appeal was stayed (put on hold) whilst the Government fought the related judicial review (to impose the Bedroom Tax on people with disabilities in general) all the way to the Supreme Court which the Government ultimately lost in November 2016.

Despite their defeat in the Supreme Court, the Government decided to pursue their appeal against the FTT’s ruling, and it is the ruling in this case which has been given today in the Upper Tribunal (Administrative Appeals Chamber), the Rolls Building in London.

Today’s ruling by the Upper-tier Tribunal said that the First-tier Tribunal had come to the correct outcome but said that it had come to its conclusion by the wrong route.

The judgment means that individuals who wish to challenge arbitrary decisions made to their benefits claims, such as Jayson Carmichael did, will continue to be able to uphold their rights in the First Tier Tribunal.

In the judgment, the three judges, Mr Justice Charles, Judge Lloyd-Davies and Judge Wikeley, state:

“…Our conclusion is that the First –tier Tribunal arrived at the correct outcome in this appeal but by the wrong route. The Tribunal sought to avoid a breach of the claimant’s Convention rights by reading words into regulation B13(5)(a) of the housing Benefit Regulations 2006 (SI 2006/213; “the 2006 Regulations”) under section 3(1) of the Human Rights Act 1998. It was correctly common ground before us that the interpretative process was not open to the Tribunal., since it went beyond any interpretive reading permitted by section 3(1). Its effect was to give the claimant an entitlement to two bedrooms under regulation B13(5), such that no 14% reduction in his housing benefit entitlement applied. What the Tribunal should have done was to direct the local authority to calculate the claimant’s housing benefit entitlement without making a deduction of 14% for under occupancy to avoid an unlawful breach of Mr (or Mrs) Carmichael’s Article 14 rights… The result is the same, namely that no deduction operated.” (Para 2)

Had the appeal by the Government been successful, and the FTT’s decision over-turned, then Mr and Mrs Carmichael and those in a similar situation, may have been unable to bring their benefits appeals to the FTT, as the FTT would no longer have been able to provide a remedy.

Jayson Carmichael said:

“It’s an absolute disgrace that disabled families have to put their lives into fighting for human rights in 2017. We hope our fight, during the election campaign, draws voters’ attention to this.

“We also hope to ensure that everybody in our situation is paid their full entitlement to housing benefit, a position that we were able to secure by using the Human Rights Act to challenge the Bedroom Tax.”

Lucy Cadd, from law firm Leigh Day's human right team who represents Mr and Mrs Carmichael, said:

“Whilst this is a complex legal battle, which has been ongoing for a number of years and has straddled several Courts, the impact of the Bedroom Tax on people has been clear. We believe this case is further evidence of a Government which has little concern for equality.”