Swallowing A Bitter Pill
Regrettably, I’ve had to decide not to pursue the Housing Benefit appeal to the Upper Tier Tribunal.
I received the judgement from the First Tier, two weeks ago today, so that only leaves another 14 days in which to submit an appeal.
Try as I might, I have not been able to secure any legal representation to support me with taking it further. After the experience with Hillingdon’s barrister at the first hearing, I know there is no way that I will be able to present a case on my own. Even if I got non qualified representation, it may be like the First Tier, where my representative was not allowed to speak.
I did have one hopeful offer of help but was quoted £300 +vat just for an initial meeting. At the very least, there would also be the cost of writing the submission and appearance at the actual hearing to follow and there is no way that I can afford those sort of fees.
If I’m honest, I feel slightly bitter about the lack of interest. Since 2011 and Neary vs Hillingdon, I’ve agreed to many legal firms using our story to speak at events, write about in various publications etc. All the firms involved in 2011, use the story prominently on their websites.
But it’s not really the fault of the legal firms – they are just doing their jobs. Ultimately, this is about the legal aid reforms and how access to justice is closed off for so many people.
I still like to think that we would have had a good chance of winning. There were so many errors of evidence in the first judgement, that I believe they could have been challenged. Also, I was looking forward to challenging the strange weighting the judge gave his decision. Five pages on one of the issues and one paragraph on the other two. Yes, I’m pretty sure we would have had a pretty good case.
So – what now? We are back to having no say about our housing situation. If I had won the appeal, I could have taken matters in my own hand and gone and found us a new flat. As it stands, we are stuck in this hellhole of a flat until the council find Steven a property. It will be five weeks tomorrow that Hillingdon did their deal with my landlady to stay on here until they find somewhere. I haven’t heard a word from them since.
The only good news in all of this is that (I’m touching wood here) Steven’s anxiety about the move seems to have abated in the past week. He has added “Moving to our new house” in his category of subjects that will probably never happen – alongside Abba reforming and Jimmy Puddle returning to the Mencap Pool. He brings up the subject daily, but throws his arms out wide theatrically, which is the sign that he doesn’t believe it’s going to happen.
Except of course, it is. One day.
Just realised that is a year ago to the day that I sat in the council offices and was told they were stopping the HB. I’ve just been advised to write the issue “in a nutshell” to be forwarded on to the UN. Here it is in a nuthsell:
Housing Benefit – Neary Vs Hillingdon
My family consists of myself (Mark Neary), my wife (Julie Neary) who has paranoid schizophrenia and my 23 year old son (Steven Neary) who has autism and severe learning disabilities.
From 1995 to 2009, we lived together as a family in the family home that is jointly owned by myself and my wife.
In July 2009, Hillingdon Council Adult Social Care department gave me an ultimatum. As my wife’s mental health condition was causing increasing problems in sustaining Steven’s care package, if I didn’t move out with Steven, they would remove Steven from our care. It was a horrible decision to have to make but I put the best interests of my son before my wife and moved out.
We moved to a privately rented property and before taking on the tenancy, I checked with Hillingdon’s housing benefit department that we would be entitled to housing benefit. They decided that the property that I jointly own could be disregarded as capital available to me and subsequently awarded HB. This continued until September 2012 and the claim was reviewed several times during those three years.
It is also useful background to know that in June 2011, a judge at the Court of Protection found that Hillingdon had acted unlawfully for the whole of 2010 by keeping my son in a care home. The court found that the council had illegally deprived him of his liberty and breached both his article 5 & article 8 human rights. In 2012, the court ordered Hillingdon to pay Steven damages for this event. I mention this because one month after the damages award, Hillingdon made their decision to stop my housing benefit. Nothing had changed in my circumstances at that time, except for my income reducing after a change in employment.
Hillingdon decided, and the First Tier tribunal agreed with them, that they could no longer disregard the value of the second property and therefore took it that the capital of that property is now available to me. In making that decision, they took three factors into account:
1. My wife is not my partner.
2. My wife is not a relative
3. My son is not a member of my family.
If they had decided that any one of the three points was in my favour, then they could have disregarded the second property and awarded housing benefit.
My appeal is on the grounds that the regulations are discriminatory to families with disabled or mentally ill members. Although we are living apart, I still consider my wife to be my partner. Our relationship is fragmented and there are very few things we do together but that was also the case when we were living together as a result of hwer mental illness.
The HB guidance, considers a “brother in law”, or a “non blood uncle” to be a relative but not a wife.
Finally, the HB guidance also states that because my son is over 18 and has his own income, he is not a member of my family. That completely ignores the dependency of a learning disabled person on most other aspects of their life.
Also, the decision fails to consider the “exceptional circumstances” of the case. Not only in the specific make up of my family but also that it was the same council that brought about the situation by insisting on the move that four years later stopped my benefit.
The judge stated that he applauded me for putting my son’s best interests first at all times but the non entitlement to HB is a consequence of that.
That cannot be right.
From → Social Care