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CH/1334/2010 — Human rights / failure to pay two bedroom rate where couple needed extra bedroom due to disabiity

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CH/1334/2010 — Human rights / failure to pay two bedroom rate where couple needed extra bedroom due to disabiity<


[2011] UKUT 148 (AAC)


The claimant and her husband lived alone in a two bedroom flat. They needed a second bedroom because the claimant had a leg amputated above the knee in 2008 and needed a wheelchair and hoist around her bed.

The claimant claimed housing benefit in February 2009 and was awarded benefit on the basis of a one bedroom property, leaving a shortfall between the benefit and the rent. This was because the local authority treated them as a couple within the meaning of Part 7 of the Social Security Contributions and Benefits Act 1992 (the 1992 Act) which meant that, under regulation 13(D)(3) of the Housing Benefit Regulations 2006, their housing benefit was to be calculated on the basis that they were only entitled to one bedroom.

However, the gap between the benefit and the rent was met by the local authority in a series of discretionary housing payment awards.

Issue before the Upper Tribunal

Whether, as submitted by the claimant, the regulation prescribing the calculation of an appropriate maximum benefit was incompatible with the Human Rights Act 1998 in that it did not take into account the essential housing needs of all severely disabled claimants.

Reasons for decision

Judge Mark highlights that under section 137(1) the 1992 Act, unless the context otherwise requires, in Part 7 of that Act 'couple' means 'a man and a woman who are married to each other and are members of the same household'.

Judge Mark goes on to say that it could be possible to give 'couple' another meaning if that meaning would involve an infringement of Human Rights. However, Judge Mark says that, in the present case, there could be bedrooms large enough to accommodate the claimant and her husband and 'they may be only too pleased in such a case to share'.

Judge Mark says that, whilst there was no doubt that the claimant was not being treated less favourably than anybody else in relation to entitlement to housing benefit, the real question was whether she ought to be treated more favourably to take account of her disabilities.

Judge Mark highlights that this issue was considered in CH/2823/2009< where Judge Howell held - in relation to a severely disabled sutdent who required an extra room for a carer - that following the principle set out by the European Court of Human Rights in Thlimmenos<, the argument that an additional cash allowance has to be created by judicial intervention to avoid discrimination must be approached with extreme caution and was not justified in that case.

Judge Mark concludes that similar considerations apply in this case and that the provisions giving 'couple' its normal meaning under Part 7 of the 1992 Act, and the failure to make special provision for this type of case beyond the provision of a discretionary housing payment, were not incompatible with the Human Rights Act 1998.


Judge Mark dismisses the claimant's appeal.

Decision in full

CH/1334/2010 <

Commissioner / Judge


Date of decision

30 March, 2011