Ignoring the Court of Appeal?

[Update 9 June 2014. The Statement of Reasons in this case is here. Well worth considering.]

There has been an odd bedroom tax development, one on which details are tantalisingly still absent. Mr & Mrs Carmichael have won their appeal to the First Tier Tribunal, apparently on the basis of Mrs Carmichael’s disability, so on grounds of Article 14 read with Art 1 Protocol 1. The Tribunal apparently found that it would be unjustifiable discrimination to impose the bedroom tax.

Why is this an odd development? There have been Art 14 FTT cases before, after all.

Well, the Carmichael’s case was one singled out for consideration in MA & Ors, R (on the application of) v The Secretary of State for Work and Pensions [2014] EWCA Civ 13, the Court of Appeal hearing of the bedroom tax disability Judicial Reviews. The Carmichael case was on agreed facts, unlike the other cases.

Mrs Carmichael needs a separate (specialist) bed with space for carers and manoeuvring of her wheelchair. She and her husband cannot share a bed and there is no space for an additional bed in the room. Mr Drabble QC submits that she is in a position which, for all practical purposes, is indistinguishable from that of the children in Gorry (the third appellant in Burnip). She is in a small and easily identifiable group of disabled persons who plainly need an extra room directly as a result of their physical disability. She has been awarded DHP for a limited period. This serves to show that she has a need for an extra bedroom, but the DHP award is no answer to the basic complaint of discrimination for the reasons given by Henderson J in Burnip at paras 46-47 (see para 61 above). Mr Drabble submits that, even if the Secretary of State is able to justify discrimination against the general group of disabled persons who need an extra bedroom by reason of their disability, he cannot justify discrimination against persons in the position of Mrs Carmichael. There is no objective and reasonable justification for the discriminatory effect of the statutory criteria in the case of couples who, by reason of the disability of one or both of them, objectively require separate bedrooms.

However the Court of Appeal found

I do not accept that the differential treatment of adults and children is irrational or that there is no objective and reasonable justification for it. The best interests of children are a primary consideration: see, for example, R (JS) v Secretary of State for Work and Pensions [2013] EWHC 3350 (QB) per Elias LJ at paras 42 to 46. For that reason alone, the Secretary of State was entitled to decide to provide a greater degree of protection for children than for adults who are in the materially similar situation of having a disability-related need for an additional bedroom. Ms Walsh explains the particular reasons why children require additional protection. I do not consider that these reasons are far-fetched or do not provide an objective and reasonable justification for the different treatment of the needs for additional accommodation of disabled children and disabled adults.

There then followed the general finding in MA & Ors that

I am satisfied that the Secretary of State has justified the discriminatory effect of his policy. I would emphasise the following three points. First, the “manifestly without reasonable foundation” test is a stringent test. I would not go so far as to say that all that the Secretary of State has to show is that his policy is not irrational, although Lord Neuberger in R (RJM) (see para 51 above) perhaps came quite close to that. The question is simply whether the discrimination has an objective and reasonable justification. I accept that the court must scrutinise carefully the justification advanced. But it is not sufficient to expose some flaws in the scheme or to conclude that the justification is not particularly convincing. The stringent nature of the test requires the court to be satisfied that there is a serious flaw in the scheme which produces an unreasonable discriminatory effect.

So, given the decision of the Court of Appeal, how did the Liverpool FTT find unjustified discrimination? We don’t know, not yet at least, as there is no statement of reasons.

But what does this amount to? It is, after all, a non-binding FTT decision. It is certain to be appealed. The prospects on appeal, on the face of it, don’t appear at all good, given the specific finding of the Court of Appeal on the Carmichaels’ case. Unless perhaps, perhaps, just perhaps, there is a new line of argument on the Article 14 issue. We will have to see if the statement of reasons becomes public.

But it is something of a symbolic moment, regardless.

[Update 26/04/2014. I have had some information kindly provided to me. On the successful argument run by counsel for the Carmichaels,, the argument was that because it was a statutory appeal the approach to justification was different from that in MA - that is, the tribunal was looking at the discriminatory effect on this family only and whether that can be justified by the Council, as opposed to the discriminatory effect in disabled people generally.

The exercise on justification was argued to be different in a statutory appeal to the tribunal than on a judicial review in the Administrative Court. MA was used as authority for this in the way in which the Court of Appeal distinguished that case from Burnip/Gorry (which was of course an appeal to the Court of Appeal from the FTT/Upper Tribunal route

While the Court of Appeal dealt with the Carmichaels' case specifically, the argument was that the court failed to make any findings that conflicted with Gorry, because the CA only approached the issue from the point of view of a comparative exercise between disabled children and disabled adults, instead of considering whether the discrimination against people with Mrs Carmichael's disability was justified as against people who did not have her disability. MA was silent on that second comparision, the key one for a finding for or against justification in respect of Ms Carmichael, and Gorry was left untouched.

In short, the court had 2 conflicting Court of Appeal judgments and Gorry was to be preferred as it was more relevant as a statutory appeal, not a judicial review.

The Council was represented by a presenting officer. Contrary to earlier rumours, neither the Council nor the DWP had counsel and the DWP was not present. The Council confirmed that its DHP pot had been spent in full in 2013 and the Council had had to request more from the DWP, so the Tribunal had the practical position on availability of DHP in front of it.

This is, I have to say, a very cunning line of argument, and if the FTT did find on this basis, it is one that that the Upper Tribunal will have to take seriously. ]

m4s0n501
Posted in assured-tenancy, Benefits, FLW case note, Housing law - All, secure-tenancy and tagged , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

37 Comments

  1. I think Sarah Steinhardt at Doughty St did it for Mr & Mrs Carmichael. And she is very, very good, especially on Equality Act matters (as anyone who heard her at the HLPA meeting will remember).

  2. An excellent (and, may I say, correct) argument. And, at the risk of putting noses out of joint, exactly the reason why the JRs have (and will) fail and why the FTT route was always the best option.

  3. I was there and their was a DWP chap at least outside the room, I wasn’t sure if he entered as I only faced Judge. I did offer that my wifes condition has GOT WORSE and more reliant on the bed WITH age. Another thing important I mentioned was Govts consistantily refused to listen to our case. Tribunals do listen. Aside from that DHPs are not legally binding and are subject to review–(-I never said that though) The DWP guy I shook hands with and he reminded me I had got DHP 2 days before in the post

  4. So the DWP WERE at least in tha building but only 3 of us sat over table from Judge, council”rep” , myself and my barrister

    • It was just about whether the DWP were actually part of defending the appeal. It seems they weren’t (and it would be highly unusual if they were). Your determination in seeing this and the judicial review through are admirable.

  5. I put so much personal effort into tribunal, matter was sent to tribunal in June 2013 and I been sending further evidence after further evidence after further evidence since then

  6. Thanks for your kind words Giles and my Barrister was so good, she knew what to say in what had become way too complicated for me.

  7. One point I brought up (at least I think it matters) is the fact that hubbys and wives who are main carers don’t get provision in bedroom tax policy. One of reasons why I was determined to attend hearing.

  8. Can we have some more details of the arguments raised in this case. I have 30 appeals due to be heard in June and would like to argue these points.

  9. Rachel, you have what I have. I understand the arguments were largely developed orally. I think the outline above is enough to base an argument on.

  10. I’ve still only got DECISION NOTICE, cites Human Rights Act S. 3(1) Provisions of B13(5) part 7. Couples like us need their separate bedrooms for disability reasons. Hope this helps Rachel

    • Thank you Jayson this has been immensely helpful. I’ve several couples in exactly the same situation.

    • Jayson – many thanks. I’d be very grateful if you could ask your solicitors to get in touch with me about the Reasons. They will know this site and me, I think.

  11. Hi Jayson

    That would be brilliant I’d love to be able to take the full reasons to an appeal with me. I’ve 35 bedroom tax appeals in June of which 17 are disabled couples. Definitely seems to be the main group affected. Ironically many of them have already downsized to two bedroomed bungalow!!

  12. I was in touch with lawyer today and think the full resins were sent to nearly legal today, they should be interesting as they explain why the high court judical review appeal was , how it was bypassed in our case

      • This is going to be of huge significance to many Disabled people. Unable to share a room.

        All credit to Jayson and their lawyers for their perseverance.

  13. The key element in the SoR in this case mirrors the Hereford decision at paragraph 8 – the identification of a discrete class of disabled persons rather than the “all disabled” from the JR cases.

    The Hereford decision from October 2013 (SC184/12/00862) accepts that a discrete class of disabled persons CAN be identified as a group and goes further than this case which only accepts the specific facts of the individual case of the Carmichaels.

    The Hereford decision identifies a potential exemption for a class of disabled persons and gives criteria for that – meaning the regulations could be amended and councils could exempt tenants who meet those criteria whereas this case rests solely on the very specific individual facts that would only apply and can only be determined by a Tribunal. That for me shows the Hereford case to be stronger notwithstanding the ‘surprise’ of how a mere FtT can rule ‘against’ the Court of Appeal

    • The Hereford case is an LHA case. It also predates MA & Ors in the Court of Appeal. The problem with the Hereford decision is that it does not address DHP as justification at all. In fact, it uses the Local Council’s benchmark for DHP assistance as the qualifying criteria for the ‘class’ it proposes – middle rate care component DLA and medical evidence of need. Para 9 relies on the Gorry finding that DHPs were inadequate per se. That cannot stand after MA & Ors (unless the Supreme Court decides otherwise).

      In short, while the Hereford decision does deal with the ‘discrete class’ issue, it doesn’t present any sufficient or adequate basis to avoid the ‘DHP as justification’ issue.

      Para 6 of the reasons in the Carmichael reasons does identify a discrete class, and one that the Council can ‘easily identify’, not just an individual case, but equally importantly, it does so by distinguishing MA & Ors in the Court of Appeal – that is the key part.

      Granted, it is true that the Carmichael FTT also doesn’t deal with DHP. I think there is a tension between this decision and the Rutherford JR in that regard. But then my view of the Rutherford JR is that it opens up the availability and security of DHP in each individual case as an issue. If DHP has been refused, or withdrawn, there is a clear Art 14 argument on the basis of Rutherford and the Carmichael FTT decision.

  14. I recall Catherine Rowlands argued in a simple tweet on this subject that for the courts to use DHP as justification / mitigation for (another) clear legal discrimination is like saying you dont need ramps as someone can carry the wheelchair! Yet the CoA deem, wrongly, that DHP is a mitigating factor and their lack of appreciation of what DHP funding means is the real reason for the legal tension.

    The numbers also just dont add up. DWP has given LAs £60m this year in bedroom tax DHP yet HB data reveals the bedroom tax is a £380m or so cut in benefit. Of that £380m the DWP does not challenge its own initial view that 63% of bedroom tax households contain a disability. So in essence the courts have decided that £60m (which assumes 100% of bedroom tax allocated DHP goes to disabled persons) justifies a cut of circa £240m to disabled bedroom tax cases. Ergo 3 out of every 4 disabled cases at best, assuming all bedroom tax allocated DHP goes solely to disabled cases, will NOT get a DHP statistically.

    The courts reasoning that DHP does mitigate and justify the discrimination is thus fundamentally flawed and the tension is because the CoA did not see this argument which has the overwhelmingly majority of disabled cases discriminated against even with the DHP argument as apparent justification.

    The CoA is essentially saying the clear discrimination is somehow justified as 1 in 4 at most disabled tenants have this blatant discriination mitigated. The tension is because the CoA simply got this wrong and DWP argument that DHP does mitigate the discrimination to disabled households is paper thin, and wet paper at that!

    • Joe, if MA & Ors reaches the Supreme Court, I have no doubt that the adequacy of DHPs will be ventilated. Until then, we are stuck with the Court of Appeal view, at least so far as the overall justification of the scheme goes.

      Rutherford suggests the position may well be different in individual cases, depending what their DHP position is.

  15. We didn’t really expect to win because of the profile of our case and the very recent JR defeat. I think solicitor didn’t expect it either. Their was no indication of how the verdict would go in immediate aftermath of case. I looked tho and their was a similar case a few weeks before ours BUT AFTER JR and that was successful, tho I wasn’t aware of it at time. Cases like ours have ALL been successful PRE JR and POST JR so really I do hope the Supreme Court ar LEAST gives us a hearing

  16. If we don’t get a supreme court hearing (we are only couple with our set of circumstances still in judicial review) its more or less handing out spades for people to dig themselves out of the hated Bedroom Tax as we have done,,,,,,,,,,,,,,,,,,,,in a metaphorical sense

  17. DWP is appealing our decision. Judge has refused permission , citing theirs NO ERROR of law, but DWP can appeal directly to upper tribunal if they wish

  18. Pingback: Local Government Lawyer - Judicial review to go ahead on impact of 'bedroom tax' on separated families

  19. Paragraph 14 of statement of reasons line 9 onwards for me anyway seems to suggest that CA left out something that they could have USED their and THEN to exempt us as a couple but they declined to do that as it were a case about discrimination against all disabled.

    We are against the Bedroom Tax FULL STOP but the CA could have made the same judgement as the FTT on our specific case. I’m not a lawyer but does anyone else see the same as me from paragraph 14 line 9 onwards

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