Following my plaintive cry here, I now have copies of the two Upper Tribunal judgments from Scotland referred to by the DWP. And, while the judgments do do something rather more and rather different to the outcomes suggested in the DWP Circular, sadly, what they actually do is worse.
The judgments can be downloaded here: CSH/188/2014 and CSH/589/2014. Of the two, CSH/188/2014 is the more significant, and this is the one I will concentrate on.
This was a case of a couple unable to share a bedroom by reason of disability. As the facts were not in issue, I won’t dwell on them – it was agreed that the couple could not share the room and required a bedroom each, and that the property had been adapted for their disabilities. It is important that at the time of the original bedroom tax decision, the claimant tenant was not in receipt of DHP, though they did receive it later.
The FTT had found unjustified discrimination under Article 14, combined with Art 1 Protocol 1. The FTT decided to follow Burnip rather than MA & Ors, which is something we have seen a number of other FTTs do, but we haven’t seen the FTT decision before.
The whole of the UT appeal centred on MA & Ors. The DWP cheerfully agreed that the regulations were discriminatory, but argued that the discrimination was justified. Specifically, the DWP argued that the FTT
(a) They had applied the wrong test for justification
(b) They had not followed the decision of the Court of Appeal in R(MA and Others) v Secretary of State for Work and Pensions [2014] PTSR 584.
(c) They had rather relied on the decision of the Court of Appeal in Burnip v Birmingham City Council [2013] PTSR 117.
And the DWP won on all grounds. I’ll come back to the extent of argument in my comments below.
The Upper Tribunal found:
i) The test for justification was ‘manifestly without reasonable foundation’ and the FTT had applied the wrong test.
ii) On DHP and justification
Mr Gill [DWP] then went on to emphasise that, applying the test discussed in paragraph 12 above, the Court of Appeal in MA had held that regulation B13 was justified. He drew my attention especially to paragraphs 39 – 60 and 65 – 80 of Lord Dyson’s judgement. In particular, he stressed that the justification accepted for regulation B13 by the Court of Appeal rested on the totality of the package provided by the Westminster government to deal with the problem of under occupancy. That package very much included the existence of the scheme for discretionary housing payments. In that connection he referred me particularly to paragraphs 40 and 82 of MA. In answer to a question from me, he submitted that it was the existence of the discretionary housing payment scheme that mattered for the purpose of justification not whether a particular claimant had received such a payment. He supported that submission by reference to the Annex to the Judgement of the Court of Appeal in MA. That Annex showed that not all of the claimants in that case were in receipt of discretionary housing payments. As I narrate in paragraph 6 above, neither was the claimant at the date of the Council’s decision. I am persuaded by Mr Gill’s submission that that should not preclude me from holding, following the decision of the Court of Appeal in MA, that regulation B13 was justified for the purpose of Article 14 of the European Convention of Human Rights in her case. That was what the tribunal should have held. Their failure to do so was a further error of law.
iii) There was no need for a ‘case by case comparison.
Mr Cole [for the tenant] submitted that the Court of Appeal in MA should have carried out a case by case comparison. In making that submission he relied on the decision of the European Court of Human Rights in Kiyutin v Russia [2011] ECHR 439, paragraph 59. Mr Gill countered that submission by pointing out that a case by case comparison was indeed required to establish discrimination. That was explicitly stated in paragraph 59, just referred to. However the Secretary of State had conceded the issue of discrimination in this appeal. The issue before me was rather that of justification. That had been the issue before the Court of Appeal in MA. Indeed the issue in MA was indistinguishable from that arising in the present proceedings. A case by case approach was not appropriate in deciding on justification when the criterion of manifestly without a reasonable foundation was being applied. Thus there was no error in the Court of Appeal not using a case by case comparison. In any event, Kiyutin had been cited in argument to the Court of Appeal in MA. Finally, any inference of the need for a case by case approach from CSH/777/13 fell to be rejected because, as emphasised in paragraph 14 above, that case was distinguishable from the present one as being decided on the basis of Article 8 of the European Convention on Human Rights rather than Article 14.
iv) Burnip should not be applied.
Mr Gill also relied on MA in support of its third contention that the tribunal had erred in law by following and applying Burnip. Although Burnip was itself a decision of the Court of Appeal it had been distinguished and not followed in the later decision of MA. In that connection he drew my attention particularly to paragraphs 64 and 71 – 72 of the Judgement of Lord Dyson in MA. I accept Mr Gill’s submission and agree that the tribunal also erred in law by purporting to follow Burnip. I reject Mr Cole’s counter submission that they were correct to do so.
So, the upshot. The FTT should have followed MA, should have found that the DHP scheme was sufficient justification for the discriminatory effect of the regulations and it should not matter whether DHP was actually in payment to the tenant at the time of the Benefit Authority’s decision. FTT decision overturned.
CSH/589/2014 concerned a tenant who needed an ‘additional’ bedroom for storage and a dressing room by reason of her disability. Again, the facts and need were unchallenged. The FTT had found Article 14 discrimination.
The Upper Tribunal reasoning follows that of the previous case, save that the FTT hadn’t even mentioned A1 P1, just Article 14. On the issue of this being a Scottish case and MA being an English and Welsh Court of Appeal case, the UT found:
As a decision of the Court of Appeal in England and Wales it is not technically binding on me when sitting as a judge of the Upper Tribunal deciding a case arising in Scotland. However, in that role, I would ordinarily expect to follow a decision of the Court of Appeal if it was on a point indistinguishable from the one arising before me, as is the case here. I consider that that applies both to cases such as MA where the Court of Appeal reached a decision on a judicial review application and also to decisions of that court under sections 13 – 14 of the Tribunals, Courts and Enforcement Act 2007. I would only decline to follow decisions of the Court of Appeal in two circumstances: if, in my view, they were clearly wrong or if they related to a point of law peculiar to England and Wales. Neither of those exceptions arises in this appeal. In particular, I am not satisfied that the decision in MA is clearly wrong.
FTT decision overturned.
Comment
If I am being blunt, and I feel like being blunt, CSH/188/2014 is not an appeal that should have been heard, or certainly as the first UT decision on Article 14. The tenant was not legally represented, and while I am certain that the Welfare Rights Officer who appeared for the tenant did his very best, the arguments put forward that are noted in the judgment (and this may well not be all of them, of course) were frankly always going nowhere (look at para 12 and 18 for example). There are Art 14 appeals in both Scotland and England that I know of where the tenant has very capable legal representation and one of those would have been a better case to hear these issues.
For example, the kind of argument run before the Carmichael FTT on distinguishing between a statutory appeal and judicial review proceedings was apparently not run here. The UT’s conclusion that JR proceedings and tribunal appeal proceedings are functionally identical as far as the decisions to be made on discrimination was apparently made without benefit of that argument.
Nor, it seems, was the Upper Tribunal taken to the Admin Court’s judgment in Rutherford & Ors v Secretary of State for Work And Pensions [2014] EWHC 1613 (Admin) [our report], by either the tenant’s representative or by the DWP. While it is an England and Wales High Court decision, given the UT’s approach to MA on the same basis, there is a clear argument that it should be considered ‘unless clearly wrong’. Rutherford gives clear support to the view that a ‘case by case’ analysis is required when considering justification, not simply discrimination. Whether DHP is in place and secure is a real consideration, according to the Admin Court.
In short, it appears that the Upper Tribunal had a poor level of argument before it, and the decision was possibly made per incuriam, given the parties’ failure to address Rutherford in argument – a surprising commission on the part of the DWP, who one would imagine under a certain duty to bring relevant cases to the Tribunal’s attention when against a lay opponent.
Nevertheless, the UT judgment has been made, and it is binding on FTTs unless appealed (unlikely?) or otherwise overturned or superseded. The practical effect would seem to be to be to end any appeals to the FTT based on Article 14 disability discrimination and Article 1 Protocol 1, whether or not DHP is in payment.
There are still a number of Art 14 based appeals to the Upper Tribunal in Scotland, and England and Wales, most of which appear to have been stayed pending any Supreme Court decision in MA & Ors. But we still haven’t had confirmation that MA has received permission to go to the Supreme Court (though it surely must) so that will be many, many months away.
In the meantime, we have this decision. And in the extent of of argument apparently considered and the arguably per incuriam conclusion, it is not a good or convincing one.
Our FTT relied more on GORY. . If the Supreme Court gives a hearing at least their hopefully will be no UTT for us for many months. Surely how many? ——-22 FTT decisions CANNOT be wrong
The WRO probably tried to get help but couldn’t so many people want paying for their ‘specialist knowledge. Yes the WRO failed but at least they tried.
As for the per incuriam, this is rather naughty I think, but as the Judgement is made, so will it be.
What does this mean for our and other UTTS?
Unless this were set up to influence the Supreme Court against further judicial review
Hi Jayson
Well, there is still legal aid for UT appeals.
As to what it means, I’m genuinely not sure. I presume the stay pending the Supreme Court will hold, as should the Supreme Court reverse MA & Ors, everything changes. But any new appeals to the FTT are likely to be met with this decision in the meantime.
I don’t think it was targeted, just Scotland going its own sweet way – the same thing has happened on room size, there is a stay on England and Wales cases pending the test cases. But Scotland went ahead and heard it on 18 September anyway. Waiting for that judgment.
Oh and Burnip/Gorry is the same case.
Thanks Giles. Yes, Gory and Burnip tha same case. Just it was referred to as Gory in my FTT. At least we still got a UTT hearing that might/hope turns out different to the above, Surely it can , Where someone hasn’t got DHP Rutherford could be brought into play where DHP could be given without reapplication, that looks like a valid argument that claimant didn’t need in above case. Also don’t think OUR reasons were used by claimant in above case to full
The trouble on DHP is that this UT expressly holds that DHP scheme amounts to justification, whether or not in payment to the specific tenant appealing. This would rule out applying Rutherford. But at 48 in Rutherford, the Admin Court found:
It doesn’t appear that the UT dealt with this point at all. And this was indeed a case where the claimant wasn’t getting DHP at the time of the HB decision.
I’ve nothing against DHP in principle , but we went down both roads,, all roads in fact, to get by, and hope as many people as possible do that too, in all parts of the UK. Thing now is we do not know if the next parliament will provide DHP.even, , which is as important now.
While the UT may have been unaware of Rutherford, would it have made any difference? In both of these decisions the UT seems to have painted itself into a corner on case-by-case comparison by deciding that the question of the claimant receiving a DHP was irrelevant as it only arose after the date of the decision under appeal: the Tribunal may only consider circumstances obtaining “down to the date” of that decision. Since the claimant obviously cannot be considered for a DHP until after the Council makes the awarding decision, that means that a Tribunal has to look at justification without regard to the question whether this individual receives a DHP. That in turn means that a case-by-case comparison would be based on an incomplete snapshot: whether or not the claimant actually gets a DHP really ought to be part of the case-by-case comparison following Rutherford, but the UT says the Tribunal acnnot look at that. If the UT is right about this, it makes it difficult to have a proper case-by-case comparison through the normal appeal route, and JR would be the only way to have individual circumstances considered in full, including individual DHP entitlement.
I would have thought that entitlement to a DHP (or refusal of one) is something that retrospectively affects the claimant’s circumstances as they were on the date of the decision and that the Tribunal can therefore look at it, but the UT says otherwise.
What a mess this is all turning into.
I think Rutherford may have made a difference, on exactly that point – as per my previous quote from para 48. But I take your point about the UT effectively saying that a subsequent award can’t be taken into account. This may be less of an issue if it is March 2014 determinations being appealed rather than March 2013, as it is possible that DHP was in payment prior to the decision, and thus take a view on its continuation. But still, yes, it would tie the UT’s hands on finding on a case by case basis. Which would be a, frankly astonishing, argument for JR as the proper route.
It is a mess, an utter mess.
Sorry, Peter, this is a really old thread and you have probably forgotten all about it. However, I’ve only just read the full UT decision and I wonder whether the fact that the LA reconsidered there decision on the 18th July (after the DHP refusal) makes any difference to the above?
Also, I notice that the UT wrongly distinguish CSH/777/13 stating that justification is different for article 8. However, in article 8 benefit cases the test in Humphreys would still apply so the distinction wasn’t justified. Do you agree?
sorry meant their not there, typing too fast!
It definitely is a complete and utter mess.
DHP’s shouldn’t even come in to it.
DHP’s are a complete and utter mess. They have always been a sticking plaster on a huge gaping hole!!
But, that go’s back to the government, only giving LA’s ‘guidance’.
And, no set policy. This means each council make up their own policy.
And, they vary up and down the country .So, it can be a ‘postcode lottery’.
They are usually only given for a short period of time. And have to be re-applied for. With no guarantee of getting it again.
Then we have the Councils using DLA as income. and telling the Disabled, they can ‘afford’ to pay the BT.
DLA is awarded for care and mobility. NOT, for paying rent!!
The government, ‘bang on’ about them, specifically helping the Disabled!!
But, MANY are excluded from even getting them.
Some councils also appear to be using them, as ‘blackmail’.
You must ‘prove’ you are looking to move.
If, you live in a specifically adapted property, for your needs.
That, really makes sense!!
It can take years to get an adaption done, in the first place.
I know that, from personal experience.
And, thousands of pounds. (In the small print). it states, if you move within 5 years, you would have to repay the grant.
And, then, what happens to the adapted property you leave then??
Only, suitable for another Disabled person, with the same needs as you!!
That, really makes sense!!
There are wider issues here. And, it makes me really angry!!
No consideration is given to the stress and distress even applying for a DHP is, in the first place.
Added to appealing the BT.
DHP’s should have no relevance in a BT appeal. Just take the facts of the individual case.
In the short term, we have to hope that the JR against Sandwell council.
Comes to a sensible conclusion.
I agree with all the above comments.
But I would just add that in reality there is no Legal Aid for Welfare Benefit cases for the UT. There was meant to be 4 general procurement areas for UT work (London & the South East, Midlands & East, North, South West & Wales) but this ran into no end of difficulties (see: http://www.justice.gov.uk/legal-aid/newslatest-updates/civil-news/?a=86290). And how on earth benefit Appellants are meant to find the actual providers is beyond me…..
The problems with all this is demonstrated by Ministry of Justice statistics stating that there were only 145 Welfare Benefit Cases funded under Legal Aid for 2013/2014 compared to 88,233 for 2012/2013. I expect the figure to be even lower for 2014/2015.
And lets not forget that Legal Aid for Welfare Benefit Cases will not cover representation at the UT even the Appellant is fortunate to find the Legal Aid provider. There was recently http://www.bailii.org/uk/cases/UKUT/AAC/2014/352.html where representation for Legal Aid wasn’t granted even for a 3 Judge Tribunal hearing for which the DWP had Counsel!
In light of all this, it is sadly not a surprise when we end up with CSH/188/2014 .
Every first tier on discrimination of this nature so far has succeeded . We shall still be going into our upper tribunal to win hands down
Still think they’ve somehow done this to stop judicail review
22 first tier results on human rights wrong????????????/ One upper tier so far has went against 100 per cent of first tiers————doesn’t make sense. AND why has just ONE been heard before the Supreme Courts decision and the rest put on HOLD?
Giles, what is your view on the fact that these are Scottish decisions? I have heard some comments along the lines that these decisions will be regarded as persuausive rather than binding by First-tier Tribunals in England and Wales, do you think that’s the case? The Upper Tribunal appears to be a single GB-wide entity (Part 1 of the Tribunals, Courts and Enforcement Act 2007 which applies throughout GB by virtue of s147(1)). Scotland’s higher courts are separate from the English and Welsh ones and I recognise that decisions made in each of those two respective jurisidictions are persuasive rather than binding in the other jurisdiction (or in Tribunals that ultimately feed into them). Hence the Judge in the Scottish UT did not regard MA as absolutely binding. But a UT decision is a UT decision wherever it is made isn’t it? Or not? What do you reckon?
I think that is right. The UT is a UK tribunal. Seems odd if the court for any appeal from the UT is different, but I think that must be right.
Have only just had time to glance at these. (As always) don’t feel it is as gloomy as it first appears. My initial reaction is that the concept that justification can only be considered in relation to the legislation, rather than in relation to the individual case must be wrong – otherwise no individual case could ever be won on human rights discrimination grounds – it could only be done through a judicial review. Also, leaving aside the Scottish/English difference, surely there will be situations where a UT decides one way on a weak case (say on sharing a bedroom) and grants permission to appeal and decides in favour of the claimant on a strong case? In other words just because they are generally in he same area, it doesn’t mean there will not be other and conflicting UT decisions. This certainly seems to happen in every other area of benefit law I have had to research. So there is Carmichael, which seems to be strong, and no doubt others. And of course, there may be permission to appeal MA and Others.
The trouble with 188/2014 is not that it is weak case – it wasn’t weak on the facts. Nor did the UT limit itself to a view on the facts of that case. It decided on the general principle. This UT decision will be raised in every single Art 14 FTT, and the FTT will have to follow it.
If another UT decides otherwise, great, but that will mean a trip to the Court of Appeal to resolve matters (or a further higher appeal in Scotland)
The Supreme Court in MA is the great unknown, of course.
All been crudely strategically manipulated by the DWP and Govt as a singular winnable case
ALL others the SAME as this were put , and still ARE, on HOLD awaiting Supreme Court HEARING decision. So my argument is not pie in the sky
Have looked in more detail at CSH/188/2014. Accepting the facts – similar to Carmichael – that there is discrimination, the UT decision seems not to regard some important points. Perhaps, as with Burnip a further appeal is needed. The questions that arise in my mind are in relation to the arguments on justification: :
(a) DHPs – as I read it, the issue is not so much the date but the conclusion that as the DHP system is in place this provides justification whether or not a specific claimant actually receives it. As you have pointed out Giles, this goes directly against the Administrative Court decision in Rutherford which clearly envisages an examination of the circumstances of the individual.
(b) On the same question it goes against the Judge Wright decision on Right to Family Life ( CSH/777/2013) which clearly indicated (Paragraphs 24 and 25) that the individual circumstances need to be considered. It is not a question of saying that the standard for justification for a breach of Article 8 are (whatever it is) is not the high standard of “manifestly without reasonable foundation” but whether the individual case should be considered at all.
(c) I think this UT decision is in some ways internally contradictory about this. In Paragraphs 11 and 12 it states that the FTT had applied the wrong test for justification, but it goes on in paragraph 13 to say that the test for justification is whether the ” total package” including the existence of a scheme for DHPs provided justification. If the FTT cannot look at the circumstances of the claimant, how could they ever theoretically find ” manifestly without reasonable foundation.” The SSWP argument would simply go – it is generally justified (as MA and Others established) , you can’t look at the individual circs, therefore it is justified in the case of every individual claimant. So in what circumstances and how could the FTT apply the right test for justification?
(d) I am not sure how this can fit in with the ” reading in” approach of Section 3 of the Human Right Act. My very general understanding is that a judicial review challenges legislation by counter posing the ECHR, but that in the case of a First Tier Tribunal it is not the legislation that is being considered, but whether that legislation can be interpreted in a way which makes it compatible with the individual’s human rights. Therefore you consider an individual case, look at the impact on the individual, consider justification for the individual, and proceed to bring the legislation (by adding. interpreting, etc) into line with their human rights. It seems to me the whole point about the use of the Human Rights Act is that it is not challenging the law in general, but it is considering an individual whose situation requires a particular interpretation. So if you have to presuppose that discrimination is justified because a judicial review has found it is justified in general, you are never going to get to the point of using Section 3.
Anyway, we will need in the meantime to argue that the case is not binding in English/Welsh tribunals, hope that it will be now appealed up to the Court of Appeal, wait for the Carmichael case to be heard, and see what happens with MA and Others.
On the issue of Article 8 challenges, CSH/777/2013 I think this is encouraging in one respect – although it sets the bar high, it does not rule out Right to Family LIfe as a possible challenge in principle – in fact it explicitly rules it in in Paragraphs 23 and 28) So it is a question in these cases of establishing clearly the serious potential damage to family life.
WE will continue to fight it everywhere until, the end of the line as far as legal aids concerned as we could do with 3 bedrooms now, not just 2. One extra for overnight carer which even now we don’t have. So will do whatever we can to continue case in the future in any and all ways we can.
States made a huge mistake and wants to avoid liability
Do we know if anyone is going to appeal this further? Surely it’s time that someone who knows what they are doing takes it over. Is anyone offering assistance to the rep/appellant in this case.
I don’t know and Scotland is outside my sphere of knowing. Would have to be appealed to a Scottish appellate court, I would presume.
Luckily most of our article 14 cases are already at the UT. Its a shame the Rutherford/FtT Carmicheal argument wasn’t put in this case. Rep should have consulted this website. The arguments developed here were instrumental in us winning all our article 14 cases. The result being that many of our appellants have had their tenancies saved for the time being.
I HOPE the lawyers can go further still if Supreme Court group application fails. . Also will do anything I can to Appeal against a Upper Tribunal defeat, if our individual case flounders
Our lawyers have just informed me that no supreme court decision is likely until late November