An upper tribunal has overturned the decision made by a first tier tribunal that a local authority acted lawfully in cutting the Housing Benefit of a woman under-occupying her home, Inside Housing has reported today.

Tory controlled Hampshire Council applied the highly controversial ‘bedroom tax’ against a woman whose identity has not been made public. Together with her daughter, the woman was deemed to be under-occupying a three-bedroom council house.

The woman, who suffers from severe asthma and eczema, argued that she needed a spare bedroom so that a carer could sleep overnight, when needed.

However, the local authority argued that her claim for Disability Living Allowance (DLA), which the council used to calculate the woman’s Housing Benefit award, only covered her daytime care needs and did not show that she needed a night-time carer. This decision was upheld at a first tier tribunal, although Housing Benefit legislation allows for a carer who ‘regularly’ stays overnight.

The woman appealed to an upper tribunal and produced a supporting letter from her GP. Her GP said that because her asthma can often be very severe “she may well need and often does have someone staying over night to look after her”.

Upper tribunal judge Mark Rowland agreed, adding: “A bedroom may be required even if the help is required only on a minority of nights.”

Giles Peaker from Anthony Gold Solicitors said he would not be surprised if the ruling sets a legal precedent, by forcing local authorities to reconsider the way they determine whether sick and disabled Housing Benefit claimants need an overnight carer.

He added: “Anybody who has been rejected on the basis of overnight care should have a look at this.”

However, Sam Lister from the Chartered Institute for Housing said the ruling would probably only affect a very small number of Housing Benefit claimants affected by the ‘bedroom tax’.