Severely disabled woman wins landmark housing benefits case

A severely disabled woman has won a landmark case enabling her to claim housing benefits for the specially adapted annex her parents built for her to live in.

Emmy Myerson’s parents built the adapted annexe next to their house in Birlingham, Worcestershire four years ago as there was a lack of accommodation providing the kind of palliative care that Ms Myerson needed.

They said they were advised by Worcestershire County Council that Ms Myerson would be entitled to housing benefits to meet rental payments for the annexe, where she receives 24-hour support from a team of carers.

However Wychavon District Council said she did not qualify for housing benefit as there was no valid commercial tenancy agreement in place.

Law firm Irwin Mitchell, acted on behalf of Ms Myerson after being instructed by the Official Solicitor (someone who represents those who lack capacity and are unable to represent themselves), and successfully appealed the decision to the First Tier Tribunal for welfare benefit appeals which found that she was able to claim housing benefit. The firm used a new interpretation of the Mental Capacity Act 2005 to claim that the council can and should fund housing benefit to help disabled people stay in their own accommodation annexed next to the family home.

Wychavon District Council appealed this decision to the Upper Tribunal where their appeal was allowed as the Tribunal found that Ms Myerson, because of her disabilities did not have capacity to enter into a tenancy agreement, and that without a valid agreement, she couldn’t claim for housing benefit.

Instructed by the Official Solicitor on her behalf, Irwin Mitchell then appealed the decision again and the Upper Tribunal judge agreed to reconsider his decision.

This time, the judge found that even though Ms Myerson’s disabilities meant she couldn’t sign a tenancy agreement, under the Mental Capacity Act 2005, she could still claim housing benefit because the accommodation was necessary as she could not live in her parents’ home due to lack of space.

Polly Sweeney, a public law specialist of Irwin Mitchell said: “This decision confirms that disabled people who do not have the capacity to sign a tenancy agreement will not be prevented from claiming housing benefit. The legal principles that have been established in this case are of vital importance in ensuring that disabled people remain able to live independently in suitable accommodation which provides them with the best quality of life possible.

“I am delighted that Emmy has finally received the three years of backdated payments that she was owed from the council and will now be able to continue living in her home provided with the 24-hour care she needs where she has thrived since moving in at the end of 2008.”

Emmy Myerson’s mother, Tussie Myerson, said: “The last three years have been very difficult for the whole family because Emmy’s future has been so uncertain.

“We built the annex for Emmy in 2008 so she could remain living close to us but had the facilities required for her carers to live with her and look after her round the clock.

“When the council said she wasn’t eligible for housing benefits we just couldn’t believe it. Emmy is profoundly disabled and will never be able to work but, at the same time, she couldn’t remain living in the family home as we just did not have the space and facilities she needs.

“I can’t describe the sense of relief we feel now knowing Emmy is able to stay in her annex close to us and I hope her case gives hope to other families out there who are in a similar situation. The success of managing her care as we have has meant that Emmy has avoided hospitalisation for over three years and the relative stability of her health is core to her quality of life. This makes it even more a relief that she can stay where she is."

In the wake of the decision, public law specialist Ms Sweeney is advising carers to ensure people with disabilities have valid tenancy agreements in place.

She said “It is important to remember that those who care for disabled people who live independently in the community should still make sure that they have the protection of a valid tenancy agreement in place, however, if individuals are not in that position, like Emmy, then this Judgment will ensure that you are not left at risk of being evicted because you cannot claim housing benefit until a proper tenancy agreement is in place."

Deb Goldfinch, shared services manager at Wychavon District Council said: “While we are sympathetic to the circumstances of the family, we have a duty to apply the rules of the benefits systems equally and fairly to everyone. At no time did we advise the family that they were entitled to this benefit. The decision has now been revised following an appeal through the appropriate tribunals.”