Monday, 7 July 2014

Glasgow tenant with learning disabilities wins bedroom tax appeal with help from Govan Law Centre

Govan Law Centre (GLC) has secured a successful appeal at the First Tier Tribunal in an unusual case. Our client has learning disabilities and experiences a high level of anxiety. She has lived in her tenancy for some years and has an essential support network in her local area.

Agencies involved with our client were of the opinion that to move home would cause her extreme distress and be detrimental to her health. Our client is unable to deal with paperwork and benefits did not understand the concept of the underoccupancy charge or the process of applying for discretionary housing payments. Our client had accrued rent arrears  before she accessed support to secure discretionary assistance and this had caused her to experience high levels of anxiety.
In addition, being advised that discretionary housing payments were not guaranteed and had to re-applied for caused her great distress. It was recognised that our client did not have a specific need for an additional bedroom. She said herself she did not ask for an extra bedroom when she was allocated her tenancy and suggested that she would board it up if this would stop her being charged for this room.

Rather our client had a specific need, due to her disabilities to remain in her current home. It was an irrefutable reality that she was unable to detach her ‘spare’ room from her home, Our client's need to remain in her current accommodation, due to her disabilities and health needs were not considered by the bedroom tax regulation.
We submitted that this was discrimination against our client and that the provision of discretionary housing payments did not temper this discrimination in our client’s case. We asked that the local authority made additional no discretionary payment for our client so as to comply with their Public Sector Equality duties. This was accepted by the Tribunal.  The client was represented by Claire Findlay, welfare rights and financial inclusion officer with GLC's Prevention of Homelessness Project.

Monday, 30 June 2014

Up to £10m could be refunded to Scottish homeowners for 'unfairly charged' legal expenses

GLC is today publishing a successful decision of the Financial Ombudsman Service where our client, a Scottish homeowner, obtained a refund of £1,500 from Santander UK plc with respect to half of the legal expenses he was charged in a mortgage repossession case.

The legal background
The case concerns a lender who had raised mortgage repossession proceedings in Scotland where the borrower had got into arrears of his mortgage but the case had to be dismissed from court as it was incompetent standing the ruling of the UK Supreme Court in RBS v. Wilson [2010] UKSC 50. The lender then had to re-raise proceedings in court.

The legal expenses for the incompetent case came to £3,000, and the Ombudsman has ruled that it was neither the borrower or lender's fault the case had to be dismissed following the UK Supreme Court decision which changed what everyone understood the law to be, and 'it seems fair, under the circumstances, for the cost to be shared'.

In paragraph 18  (opens as PDF) of the CML's response to the Scottish Government's consultation on the RBS v. Wilson case, the CML estimated between 3,000 and 5,000 repossession actions were dismissed in Scotland as incompetent, standing Wilson. Taking an average expenses figure of £1,500, we may be looking at a figure of £7.5m due to be refunded to consumers in Scotland based on the attached Ombudsman's decision.

And there are then the cases dismissed as incompetent following Govan Law Centre's (GLC) NRAM v. Millar and RBS v McConnell 2012 SLT (Sh Ct) 58 test cases, in relation to a failure to comply with the Pre-Action Requirement statutory provisions.

We are not sure of the approximate number of cases dismissed because of these cases but the number is not insignificant. Again, applying the rationale of the attached Ombudsman's decision we may be looking at around £3m, producing an overall figure of in the region of £10m of costs which consumers in Scotland may be able to have refunded.

What does this mean for you?
If you were taken to court for mortgage repossession in the last few years and the court proceedings had to be dismissed or re-raised on competency grounds, then you may well be affected by this issue, and may entitled to a refund of at least 50% of the legal expenses in one of those cases. You can speak to your solicitor or advisor to check whether you may be able to claim.

If you already think you are affected by this issue then you can write to lender asking for a refund yourself - here is an illustrative letter (keep a copy of this letter too for your own records and in case you need to prove you made a complaint).

Your lender has 8 weeks to deal with your complaint, and if they are unwilling to offer you a refund you can then make a complaint to the Financial Ombudsman Service, details on how to do so are set out here:

* For the sake of completeness, GLC did invite the Council of Mortgage Lenders (CML) and its members to make arrangements for voluntary refunds, where appropriate, but this suggestion was declined by the CML who insisted that their members were entitled to recover full legal expenses even where incompetent legal proceedings had been raised and were required to be dimissed by the court.

Thursday, 5 June 2014

GLC recruitment opportunity for an Additional Support Needs Caseworker

Additional Support Needs Caseworker (funded by the Scottish Government).
£24,738 per annum
34 hours per week
Contract : Fixed Term until 31 March 2017

As part of the Let’s Talk ASN national advocacy service (delivered in partnership with Kindred), you will provide advocacy and support to parents and young people with educational issues that may require to be determined by the Additional Support Needs Tribunals for Scotland.  Experience in working with children and young people with additional support needs and their families and in advocacy in a Tribunal context highly desirable.

CV and covering letter to Govan Law Centre, 18-20 Orkney Street, Glasgow G51 2BZ or
Deadline: 4pm on 18 June 2014.  Job and person specification (opens as a PDF).


Saturday, 3 May 2014

The bedroom tax won't be scrapped in Scotland unless we stop excluding severely disabled tenants from Discretionary Housing Payments

As many media outlets report today, the Scottish Parliament is to be given new devolved powers to remove the cap on Discretionary Housing Payments (DHPs), with many commentators suggesting this will mean "the bedroom tax will be scrapped in Scotland". Sadly, that is not the case.

The reality is many local authorities across Scotland 'means test' DHPs, which perversely results in severely disabled tenants being excluded from DHPs because their disability benefits are taken into account when their disposable income is assessed. Why should disabled tenants have to pay the bedroom tax from their disability benefits? Govan Law Centre (GLC) believes this is wrong, both as a matter of legal principle and in terms of fairness.

For example, this week in GLC's two successful bedroom tax First Tier Tribunal appeals, both tenants had been refused DHPs by their local authority because they were in receipt of Disability Living Allowance.

Why should Scottish local authorities stop taking disability benefits into account when assessing eligibility for DHPs?

We can do no better than quote Lord Justice Maurice Kay from the leading English Court of Appeal case of Burnip and others v. The Secretary of State for Works and Pensions [2012] EWCA Civ 629 (at para 45):

"First, I think it is necessary to draw a clear distinction between the benefits which Mr Burnip was entitled to claim for his subsistence, and those which he was entitled to claim in respect of his housing needs. His incapacity benefit and disability living allowance were intended to meet (or help to meet) his ordinary living expenses as a severely disabled person. They were not intended to help with his housing needs ... It would therefore be wrong in principle, in my judgment, to regard Mr Burnip's subsistence benefits as being notionally available to him to go towards meeting the shortfall between his housing- related benefits and the rent he had to pay".

Disabled people need disability benefits to meet their extra living costs by reason of their disability. Taking disability benefits into account as disposable income is wrong as a matter of not just legal principle but also as a matter of basic fairness and equity. 

GLC is calling upon the Scottish Government to work with the UK Government to make sure it has the power not only to set the cap for DHPs, but if it wants to scrap the bedroom tax it has to ensure it has the power to require all local authorities in Scotland to stop excluding severely disabled tenants from DHPs because they receive disability benefits.

Friday, 2 May 2014

First Tier Tribunal rules that dining rooms were not 'under-occupied' bedrooms for Glasgow tenants

Govan Law Centre (GLC) has been successful in arguing that tenants who used a 'bedroom' as a dining room should not be subject to an under-occupation (commonly known as 'the bedroom tax') deduction from their housing benefit entitlement.

In the case of 'E', the tenant has used her downstairs 'bedroom' as a dining room since the commencement of her tenancy in 2007. It had never been used as a bedroom. Her kitchen was too small to be used for dining purposes.

The appellant's solicitor, Mike Dailly of GLC, argued that as the term 'bedroom' was not defined in the Housing Benefit Regulations the word had to be interpreted in relation to its ordinary meaning, and in particular having regard to the actual facts and circumstances of the appellant's case, including her actual useage.

The respondent, Glasgow City Council, argued that regard should be had to the fact that three of the property's rooms could be occupied as bedrooms, notwithstanding on the evidence the appellant had not chosen to occupy one of them as such.

The Tribunal found that 'The appellant's use of the downstairs room as a dining room is long established and reasonably necessary for her use of the property', and allowed the tenant's appeal.

In the case of 'L', the tenant was the sole occupant of a 4 bedroomed property since 1997 and had always used the downstairs 'bedroom' as a dining room and as a storage space for her electric mobility scooter, manual wheelchair and walker.  The Tribunal found on the evidence that 'the use of the downstairs room as a dining room and also for storage of [the appellant's] disability equipment is long established and reasonably necessary for her use of the property', and allowed the tenant's appeal. 

Housing benefit would be backdated from 1 April 2013.  Copies of the Decision Notice in both cases are available as a PDF here.