Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made under reference SC231/14/00181) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is: the claimant’s entitlement to housing benefit is subject to a 25% reduction under regulation B13 of the Housing Benefit (General) Regulations 1987 with effect from 7 April 2014.

Reasons for Decision
A.	History and background
1.	This case concerns a reduction in the claimant’s entitlement to housing benefit by 25% under regulation B13 on the basis that his home contained three bedrooms but he only required one. There is more detail is paragraph 3 below. The claimant exercised his right to appeal to the First-tier Tribunal and the First-tier Tribunal allowed his appeal, deciding at first that his entitlement was not subject to any reduction and then that it was to be reduced by only 14%.
B.	The legislation
2.	These are the relevant provisions of the Housing Benefit Regulations 2006 (SI No 213):
2	Interpretation
(1)	In these Regulations-
…
‘child’ means a person under the age of 16;
… 
‘person who requires overnight care’ means a person (“P”)-
(a)	who-
(i)	is in receipt of attendance allowance;
(ii)	is in receipt of the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the Act;
(iia)	is in receipt of the daily living component of personal independence payment in accordance with section 78 of the 2012 Act; 
(iib)	is in receipt of armed forces independence payment; or
(iii)	although not satisfying either paragraph (i), (ii), (iia) or (iib) above has provided the relevant authority with such certificates, documents, information or evidence as are sufficient to satisfy the authority that P requires overnight care; and 
(b)	whom the relevant authority is satisfied reasonably requires, and has in fact arranged, that one or more people who do not occupy as their home the dwelling to which the claim or award for housing benefit relates should—
(i)	be engaged in providing overnight care for P;
(ii)	regularly stay overnight at the dwelling for that purpose; and
(iii)	be provided with the use of a bedroom in that dwelling additional to those used by the persons who occupy the dwelling as their home,
but, in a case where P is treated as occupying a dwelling which P does not actually occupy, paragraph (b)(ii) and (iii) are to be treated as satisfied where the relevant authority is satisfied that the dwelling contains such an additional bedroom and that P did or will reasonably so require and so arrange at such time as P actually occupied or occupies the dwelling; …
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.
20	Circumstances in which a person is to be treated as responsible or not responsible for another
(1)	Subject to the following provisions of this regulation a person shall be treated as responsible for a child or young person who is normally living with him and this includes a child or young person to whom paragraph (3) of regulation 19 applies.
(2)	Where a child or young person spends equal amounts of time in different households, or where there is a question as to which household he is living in, the child or young person shall be treated for the purposes of paragraph (1) as normally living with—
(a)	the person who is receiving child benefit in respect of him; or
(b)	if there is no such person—
(i)	where only one claim for child benefit has been made in respect of him, the person who made that claim, or
(ii)	in any other case the person who has the primary responsibility for him.
(3)	For the purposes of these Regulations a child or young person shall be the responsibility of only one person in any benefit week and any person other than the one treated as responsible for the child or young person under this regulation shall be treated as not so responsible.
C.	The appeal to the First-tier Tribunal
3.	The judge found that the claimant occupied as his home the house that he had lived in for 35 years, which he rented from Homes for Northumberland. It had three bedrooms. There is no alternative, smaller property available from Homes for Northumberland. Since their children left home ten years ago, he has lived there with his wife. He sometimes experiences incontinence, which causes him to sleep separately from his wife; they occupy separate rooms. He needs to be helped out of bed. Recently, the claimant’s grandson, who may have ADHD, came to stay with the couple for two or three nights a week in order to provide some respite for his mother and some protection for his sibling. He has clothes and toys at the house. His mother requires help to look after him and his grandparents provide him with emotional support. There was evidence to support all those findings. 
	The judge’s decision notice 
4.	The judge heard the appeal on 4 August 2014. He gave his first decision and a summary of his reasons in his decision notice. He allowed the appeal and decided:
There is no reduction in the maximum rent.
[The claimant] is entitled to 3 bedrooms. One is for himself. He is entitled to 2 further bedrooms: one is for his wife who provides overnight care due to his disability and one for the 8 year old grandson who occupies [the property] as his home.
	The judge’s full reasons
5.	When he came to write his reasons – they are dated 12 August 2014 - the judge took a different view. In dealing with the position of the claimant’s wife, he now recognised that she would only qualify for a bedroom as a carer if she did not occupy the property as her home. That is the effect of head (b) the definition of ‘person who requires overnight care’ in regulation 2(1). There is nothing in the reasons to suggest that the judge realised that this was contradicting his decision notice, which contained a decision inconsistent with this part of his reasoning. 
6.	Turning to the grandson, the judge referred to the Convention right to family life under Article 8. He found that the family provided the best environment in which to provide the care and assistance that the grandson needed. Ensuring that he had the best upbringing possible was for the benefit of the family and of society. Emotional and physical support was an integral part of maintaining family life and within the scope of Article 8. The only way to give effect to this was to interpret the reference to ‘home’ as allowing the grandson to have two homes, one with his mother and one with his grandfather. The judge considered that it would create enormous, impracticable and unworkable administrative problems if the grandson changed home each time he came to stay with his grandparents. Finally, the judge said that he considered child benefit, which was payable to his mother, was irrelevant. 
	The judge’s so-called review
7.	On 17 September 2014, the Secretary of State applied to the First-tier Tribunal for permission to appeal against the decision. There were two grounds of appeal. The first ground was that the claimant could not be a person who required overnight care on the basis of the care provided by his wife; I have already mentioned that point in paragraph 5. The second ground was that the claimant’s grandson could only occupy one property as his home, citing R v Housing Benefit Review Board for Swale Borough Council, ex parte Marchant [2000] 1 FLR 246. The judge was wrong to consider that the case fell within Article 8, as housing benefit was not within that Convention right and it did not impose a positive obligation on the State to provide welfare benefits except in extreme circumstances. The tribunal had also failed to take account of the availability of discretionary housing payments. 
8.	This seems to have prompted the judge to realise that his reasons contradicted his decision notice. On 22 September 2014, he issued a Decision Notice in these terms:
The Respondent [the Secretary of State] has applied for permission to appeal to the Upper Tribunal against the decision of the Tribunal issued on 4.8.14. 
It is appropriate to review the decision because an error of law has arisen.
The decision of the Tribunal dated 4 August 2014 is set aside. 
The decision is remade as follows.
The housing benefit appeal is allowed.
[The claimant] is entitled to 2 bedrooms. One for himself and one for his 8 year old grandson who occupies [the property] as his home.
Therefore, there is a reduction in the maximum rent of 14%.
9.	In effect, this brought the decision into line with the reasons. The judge’s approach accepted that he had made an error of law. If he had merely failed to record his decision accurately in the original decision notice, he could have corrected it under rule 36 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685). 
10.	This new decision notice led to an application on 1 October 2014 by the local authority under rule 40(4) of the tribunal’s rules of procedure, asking for ‘the revised decision to be set aside and reviewed again’, because the Secretary of State was not given a chance to make representations and the grounds of appeal relating to the grandson were not fully considered. Rule 40(4) provides:
(4)	If the Tribunal takes any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (3) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.
The judge had not included the necessary statement on his decision notice. 
11.	The judge allowed all parties 21 days to make representations on his decision to review his original decision. The Secretary of State made representations, citing regulation 20 and referring to the decision of the Administrative Court in R (Cotton and others) v Secretary of State for Work and Pensions and others [2014] EWHC 3437 (Admin). The claimant also responded, saying he had not seen the decision given on review and arguing that the judge’s original decision had been correct. Subsequently, he wrote applying for permission to appeal against the judge’s decision on the review. 
12.	On 31 October 2014, the judge decided that it was not appropriate to review his decision of 22 September 2014 and refused the claimant’s application for permission to appeal. He took the opportunity to comment on the cases cited by the Secretary of State. 
13.	On Marchant, he said that this was irrelevant, as it concerned the definition in Part 2 of the Regulations, whereas regulation B13 is in Part 3. As such, the decision was not, and could not be, binding. As there was no definition in respect of regulation B13, it was a matter of fact for the First-tier Tribunal. 
14.	On Cotton, he said that this was irrelevant, as it concerned discrimination and Article 8 in relation to the Regulations as a whole. It did not deal with the interpretation of the legislation. It did not consider the discriminatory effects of regulation B13(5), as it was not regarded as relevant to the facts of the case. 
D.	Procedural issues
15.	I prefer to set this decision aside on substantive grounds rather than for procedural error, but there are two matters of procedure that merit comment. 
16.	First, it is surprising that this judge, of all judges, failed to apply the review procedure correctly, as it was his operation of that procedure that led to the three-judge panel in JS v Secretary of State for Work and Pensions  [2013] UKUT 100 (AAC), [2013] AACR 30. That decision shows (at [9]) that the judge there failed to give the parties the opportunity to make any representations. In this case in contrast, he did, albeit eventually and only after an application by the local authority, but he failed to alert the parties to their right as required by rule 40(4). 
17.	Second, it does not seem to have occurred to the judge that what he was doing was a breach of the basic rules of natural justice. He changed his mind after he had promulgated his decision, without consulting the parties and without drawing it specifically to their attention, possibly because he had failed to realise what he had done. When it was drawn to his attention, he failed to ask the parties for their views. As he sank further into the procedural quagmire of his own making, he should surely have wondered whether it was not better to set his decision aside and direct a rehearing before another judge rather than engage in what could appear to the uninitiated to be a rearguard action to defend his decision. 
E.	The appeal to the Upper Tribunal 
18.	I gave the Secretary of State permission to appeal. In my reasons, I referred the parties to my decision in MR v North Tyneside Council and the Secretary of State for Work and Pensions [2015] UKUT 0034 (AAC). I deal with that first and then summarise the parties’ arguments. I emphasise that it is only a summary, especially of the details arguments put for the claimant. I pay tribute to the thoroughness of those arguments. The claimant could not have been better represented. 
	The MR case
19.	This case concerned a child whose residence was shared between his parents and whose father received child benefit at the relevant time. I decided that he could not have a home with the claimant (his mother) as well as with his father. For convenience, I set out the relevant paragraphs of my reasoning:
E.	The Secretary of State’s analysis 
20.	I accept the Secretary of State’s argument that the tribunal’s approach was based on a misunderstanding of the structure of the housing benefit legislation. The flaw was to treat the meaning of the words used in regulation B13(5) as freestanding, when they had to be read in the context of other provisions. 
21.	Regulation B13(5) provides that a claimant is entitled to one bedroom for each of the categories of person listed ‘whom the relevant authority is satisfied occupies the claimant’s dwelling as their home’. A child is one of those categories, which is defined as ‘a person under the age of 16’ by regulation 2(1). That provision has to be read, not in isolation, but in the context of the housing benefit legislation as a whole.
22.	Regulation 7(1)(a) is part of that context. It provides that ‘a person shall be treated as occupying as his home the dwelling normally occupied as his home … by himself and his family’. Section 137(1)(c) of the Social Security Contributions and Benefits Act 1992 defines ‘family’ as ‘a member of the same household for whom that person is responsible and who is a child’. This leads to regulation 20(2)(a), which provides that when ‘a child … spends equal amounts of time in different households … the child … shall be treated … as normally living with the person who is receiving child benefit in respect of him’. 
F.	Applying that analysis
23.	The claimant occupies her dwelling as her home under regulation 7(1)(a). Accordingly, she is entitled to one bedroom for herself under regulation B13(5)(b). Her son would be entitled to a second bedroom for himself under regulation B13(5)(e), if he were occupying the dwelling as part of the claimant’s family: regulation 7(1)(a). That depends on whether his mother is responsible for him: section 137. This depends on how much time the son spends with each parent and who received child benefit in respect of him. As he divides his time equally between his parents and as his father receives child benefit in respect of him, his mother is not responsible for him by virtue of regulation 20(2)(a). The result is that the son does not qualify for a second bedroom under regulation B13. The local authority was right to reduce the claimant’s entitlement by 14% under regulation B13(3)(a). The tribunal made an error of law by misinterpreting the legislation. I must therefore set its decision aside. As there is no dispute about the facts and there can be only one proper application of the law to those facts, I have re-made the decision to confirm the local authority’s application of regulation B13.
	Submissions for the claimant
24.	The claimant is now represented by his local CAB. The representative presented a detailed and carefully reasoned argument supporting the decision in relation to the claimant’s grandson. He noted that social services had asked the claimant to take him and argued that this case was different from those involving shared residence by former partners as the ‘nature of the emotional and social relations between grandparents and children are fundamentally different than between separated parents.’ On the law, he argued that the case was within the remit of Article 8 and there can be a positive obligation to remedy interference with that Convention right, relying in part on Article 27(3) of the United Nations Convention on the Rights of the Child 1989. He argued that the operation of regulation B13 discriminated against the claimant and his grandson. The representative accepted that the grandson could not be a child under regulation B13(5)(e) in both homes, but that he could be considered ‘a person who is not a child’ under regulation B13(5)(b). 
25.	Next, the representative argued that the claimant’s case was analogous to the decision of the Court of Appeal in Gorry v Wiltshire Council [2013] AACR 7, part of three cases often cited collectively as Burnip. That case did not involve regulation B13, but the private sector equivalent. 
26.	The representative also presented an argument in support of the original decision in relation to the claimant’s wife. He drew attention to the details of one of the cases involved in MA v Secretary of State for Work and Pensions, now before the Supreme Court with a hearing fixed for March 2016. He invited the Upper Tribunal to stay this case. 
27.	Finally, the representative argued that the tribunal failed to consider the possible application of regulation B13(6) and (7). He argued that although that the tribunal had failed to consider whether the grandson was providing overnight care for the claimant.
28.	Subsequently, the representative drew my attention to the Scottish decision in Secretary of State for Work and Pensions v IB per appointed Guardian [2015] UKUT 0282 (AAC)
	Submissions for the local authority
29.	The local authority made a short response to the appeal dealing with the authority’s discretionary housing payment policy. 
	Submissions for the Secretary of State 
30.	The Secretary of State’s representative made a detailed reply to the arguments put by the claimant’s representative. 
31.	On the right to family life and discrimination, the representative argued that Cotton was relevant and analogous. The judge there held that regulation B13 was not manifestly without reasonable foundation. He also decided that, even if the claimants had had to move to smaller properties where their children could not live with them, there would still have been no violation of Article 8.
32.	On MA, the representative argued that the decision is binding and relevant, as being on the same regulation. Discretionary housing payments are in principle available to the claimant and have been paid in the past. Some of the cases involved in that litigation are similar on the facts to this case. 
33.	On the UN Convention, the representative argued that there is no general right to welfare benefits or a home under Article 8, except in the most extreme circumstances. 
34.	On MA and discretionary housing policy, the representative argued that this was a factor, citing R (Rutherford) v Secretary of State for Work and Pensions [2014] EWHC 1613 (Admin), where the scheme was central to the finding that regulation B13 did not violate Convention rights.
35.	On Burnip, the representative argued that, given the similarity between the facts of this case and one of the cases involved in MA, it would be wrong to rely on the former in preference to the latter. The Court of Appeal in MA had distinguished Burnip on three grounds:
•	different considerations applied;
•	discretionary housing payment guidance had since been updated and the amount of funding increased; 
•	it was not irrational or unfair for the Secretary of State to refuse to add additional categories to the exclusion. Doing so would have led to an administratively intensive and costly process. 
36.	On the grandson as the claimant’s carer, the representative argued that this would not satisfy head (b) of the definition in regulation 2(1), because:
•	the local authority would not be satisfied that the claimant reasonably requires care from his grandson as (i) the grandson is a child and (ii) the claimant’s wife provides the care he needs;
•	the local authority has not in fact arranged for the child to provide care to the claimant. 
F.	The law and how it applies
37.	I begin by explaining how the judge went wrong. I then deal with the other issues that have been argued. 
	 The judge’s mistakes
38.	The judge went wrong in law by failing to interpret the Regulations as a whole. He is right that they are split into Parts. That is a matter of convenience and structure. It can be relevant to interpretation. But I can see nothing in the structure of the Regulations as a whole or in the content of individual regulations to justify interpreting regulation B13 on its own and in isolation from the basic concepts that apply to all other provisions. I remain of the view that I expressed in MR. That decision is binding on the First-tier Tribunal and local authorities. Marchant cannot be distinguished simply on account of the layout of the legislation. The chance of the layout did not affect the reasoning of the Court of Appeal, which is directly in point.
39.	It would be permissible to rely on that rather tenuous distinction if it were necessary in order to comply with the interpretative duty under section 3 of the Human Rights Act 1998, but it is not. I accept the Secretary of State’s argument that the trend of the Convention caselaw is that Article 8 does not impose a duty to confer a social security benefit except in the most exceptional circumstances. Cotton is an authority for that proposition. I emphasise that there is no evidence to suggest that the family relationship between the grandson and his grandparents, or even between the grandson and his mother, would cease or suffer irreparable harm if the grandson were not able to spend part of his time with his grandparents. 
40.	As to Gorry, this was distinguished in MA, as different policy considerations were in operation in respect of the social sector duty under regulation B13. As to MA, the claimant’s difficult is in showing that he is a victim for the purposes of section 7(1) of the Human Rights Act 1998. As the information now available shows, the claimant is potentially entitled to a discretionary housing payment when his circumstances justify one being made and he has at times received a payment. That ensures protection that the courts have recognised as important, although perhaps not necessarily decisive, throughout the various challenges to regulation B13. In those circumstances, I do not consider it appropriate to stay this case to await the decision of the Supreme Court. 
41.	As far as Article 27(3) of the UN Convention is concerned, it expressly recognises that it is subject to what the resources of the State can afford and regulation B13 has to be seen as part of the Government’s social policy to reduce public expenditure. 
	Child benefit is relevant
42.	The incidence of child benefit is relevant, because regulation 20 makes it so. The grandson does not spend equal time with his mother and grandparents, but there is a question as to which household he is living in for the purposes of housing benefit, the answer is determined by the award of child benefit. That is what regulation 20(2)(a) provides. I have already explained why regulation B13 cannot be read in isolation from the Regulations as a whole. 
	Secretary of State for Work and Pensions v IB
43.	I do not understand how this case is relevant. It is concerned with whether a room is to be designated as a bedroom and finds no flaw in the First-tier Tribunal’s findings on that issue. It is an example of the basic requirement that an appeal lies only for error of law and that a challenge to findings of fact does not identify an error of law. 
	The grandson is not the claimant’s carer
44.	Leaving aside the improbability of an 8 year old child providing the help his grandfather requires with incontinence during the night, this argument fails because there is no arrangement that he should provide that care. As the judge found, the claimant’s wife provides the care he needs. That finding shows that head (b) of the definition of ‘person who requires overnight care’ is not satisfied. 
	The grandson is not ‘a person other than a child’
45.	It is a bold submission that a person who is a child should be categorised as a person who is not a child. It involves reading two categories that by their terms are mutually exclusive as overlapping. That is not to say that it is impossible. All kinds of apparent contradictions can be created by the more imaginative deeming provisions. I reject the argument, because there is nothing to suggest that this would be a rational interpretation. It cannot apply as a general proposition, as it would render redundant subsequent provisions in regulation B13(5) that make provision for children. The argument seems to be that, because the grandson does not count as a child for the purposes of regulation B13(5)(e), he can be treated as someone other than a child. But that is a misunderstanding of how the regulations work. The grandson is not excluded from being a child because his home is with his mother, he is excluded from being part of the claimant’s family and that exclusion covers not only a child, but a person who is not a child, and any other category for that matter. 

G.	Disposal
46.	I set the tribunal’s decision aside. It is in error of law and there is only one decision that the tribunal could properly have given, which is to confirm the local authority’s decision. I have re-made the decision to that effect. 

Signed on original
on 23 June 2015	Edward Jacobs
Upper Tribunal Judge