Ye’ll tak’ the high road*

As First Tier Tribunal bedroom tax decisions go, this one is a corker. Glasgow FTT has decided that the Regulations as applied to a severely disabled woman who could not share a bedroom with her partner amounted to an unjustified breach of Article 14, read with Article 1 Protocol 1. The decision is here.

I need time to consider the decision properly and write it up, but the headline is that the FTT read the relevant regulation (B13(5)(a)) to read “(a) a couple (within the meaning of part 7 of the Act) (or one member of a couple who cannot share a bedroom because of severe disability) in order to give the regulation effect in a Convention compatible way. Not to read the regulations in this way would be incompatible with the Convention and the Human Rights Act.

This one will need some detailed comment, not least on the distinguishing of this appeal from the High Court’s decision in MA & Ors, R (on the application of) v Secretary of State for Work and Pensions & Ors [2013] EWHC 2213 (QB). Compare, for example, para 51 of MA with para 3 of this decision. Does ‘severely’ make sufficient difference? There is also the issue of the extent to which the FTT’s ‘compatible reading-in’ is a re-writing, amongst others.

But it is in any event a remarkable decision and clearly remarkable advocacy by Govan Law Centre.

The DWP appeal will no doubt be announced any moment now. And all eyes on the Court of Appeal forthcoming hearing in MA…

[*Any reference to the Jacobite Rebellion entirely co-incidental]

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 +.
Posted in assured-tenancy, Benefits, Housing law - All, secure-tenancy and tagged , , , .

12 Comments

  1. Individual case and facts of at FTT compared with trying to make a generic case in MA & Ors for me. Throws up interesting process issue that the best (and ONLY?) way for each individual to get the correct decision is to go via FTT and not via JR. The dog’s breakfast just became more of a mess as if case F is appealed and upheld at UT it still needs individual facts of each case to decide – not a job for a HB officer at each council surely!

    • I am still thinking this one through. But a couple of initial thoughts…

      There are problems with this approach, which show up in the FTT decision. Can’t be exemption purely on individual case – and the ‘reading-in’ or rewriting conducted by the FTT obviously applies to many more than this individual case. Regulations cannot practically address every individual instance, which is what the appellant’s and your argument leads to. Both the Regs and the identifiable classes discriminated against have to be generic to some degree.

      Faced with the individual case, either the regs are incompatible with Art 14 – which means they must still be applied – or a more or less generic class has to be invented for which discrimination is not justifiable and can be avoided by ‘reading-in’ (and I do think this decision goes beyond ‘reading-in’).

      The only real difference between the ‘class’ proposed by the claimants in MA and the class described in this decision is the addition of the word ‘severe’, and I’m not sure that this escapes the High Court’s view in MA (Not saying that I think the view in MA on the lack of specificity of class was right. I don’t).

      I have no problem with the benefit authority being the first decision maker in questions of fact and degree – that is surely their role! Whether someone’s disability gives rise to a need for an additional bedroom would be a question of fact and degree.

  2. Interesting discussion and thanks for the kind words for GLC and me Giles. If one looks at the appendix to MA, the first case, Ms Jacqueline Carmichael is very similar to the Glasgow decision in F. But the facts are not admitted by the Secretary of State (see para 18), and are more a summary as opposed to detailed findings in fact? But certainly Ms Carmichael is undoubtedly ‘severely disabled’ (as are others in that case)from that summary of alleged facts. So why was MA unsuccessful? – the first thing to observe is the Court of Appeal case in MA may be successful yet (one would hope so) and this is a live issue. But what strikes me, from a practical view as a court practitioner, is that the arguments (from the judgment at least) are set in muchy broader policy terms, almost abstract, considerably more complex than a single FTT case, covering a range of groups of tenants in the social rented sector affected by the bedroom tax – and the facts almost get lost in the mist of very complex legal arguments? And the ‘ante is certainly upped’ when one challenges, in effect, the brunt of the whole bedroom tax policy in the UK. In practical terms it is easier for the wood to get lost in the trees. Consider that the cases of Burnip, Trengove and Gorry came up as I understand it from the FTT, with very strong findings in fact which set a much tighter frame for the legal debate, which was anchored in those facts. And MA was of course a judicial review and I make no criticism of tactics as everything is a judgment call. It must be strongly arguable that the disabled litigants in MA fit in squarely with Gorry on the facts, the only difference being they are not children.

  3. Mike, thanks for that. And again, my applause on the case and result.

    I agree that this is a live issue and the Court of Appeal hearing is anxiously awaited.

    I also agree that MA was obviously couched in more general terms. However, I suspect that the problem in MA stems rather more from the finding of Thlimmenos discrimination, and thus a justification position of “manifestly without reasonable foundation” being examined in detail (which it wasn’t in Burnip/Gorry). It was the latter that allowed the combination of ‘policy’ and DHP to be taken as sufficient.

    The question of a ‘class’ is inevitably going to come up. As I see it, the FTT has here created a class, for all that it is ostensibly concerned with the specific case – a class of those ‘who cannot share a bedroom because of severe disability’.

    I think you certainly have a point in suggesting it may be better (or have been better) for such cases to come up via FTT/UT, with specific findings of fact, and perhaps (piecemeal?) classes, rather than a sweeping JR. But so long as MA stands (hopefully not much longer) the question of whether the class can be adequately objectively defined will be thrown back by DWP.

    MA at 53. “there is no precise class of persons – those who need extra bedroom space by reason of disability – which can be identified in practical and objective terms and sufficiently differentiated from other groups equally in need of extra space but for other reasons.”

    Does the addition of ‘cannot share’ and ‘severe’ give sufficient definition and differentiation? Possibly, but it will be argued against.

    More immediately, though, I would suspect that the DWP argument will be that precisely this kind of case was considered as one of those in MA and that therefore the High Court has already dealt with these circumstances under its broader finding. Obviously, this is an E&W High Court finding, not Scottish, but…

    • This might be of some interest regarding how to assess or measure disability. The SSAC concluded a ‘consultation’ on the 18th of October into how to best implement the ‘Gorry’ part of Burnip. As you know , they were reprimanded by Laws for not having altered the legislation and leaving the matter of how disabled a child had to be before they were deemed to need their own room to the discretion of the LA. They were given until the31st of October to put it right. The consultation proposes that only those children in receipt of middle or high rate DLA will be assumed to be disabled enough and this benefit will act as the gateway to exemption. The DWP admit in the accompanying documents that many children in receipt of low rate DLA have problems with sleep: they won’t be allowed a room. Where this leaves families who have been granted exemptions on the basis of a child in receipt of low rate care I don’t know. Campaigners have long argued that DLA should be sufficient to prove disability levels but the DWP said it was too hard to administer. The best and only solution (and the one the DWP put forward in a private meeting in 2010) is to exempt all children and adults in receipt of DLA and or ESA (Support Group). The DWP were going to do exactly that before they calculated the loss to the ‘saving’ from the bedroom tax. Interesting that they are now back pedalling and accept DLA as the measure of disability and thus the gateway benefit, even though it’s not yet for all cases. Farcical.

    • Thanks Sue. Yes, I saw the consultation. Incidentally, this Glasgow case is now being appealed by the DWP, who have been given permission.

  4. Giles, do you know where we are now wiith this one? and how much bearing it has on ours?

    • Jayson, I’d heard it was to go to the Upper Tribunal but it hasn’t been decided yet. It might have significance for your case, at least as it relates to the Tribunal’s approach to Article 14.

  5. Thanks Giles, this case has prompted me to write to the upper tribunal asking them what precisely the error of law is that the DWP is citing in our own case. Whats unique about our case

  6. And our case to do wi couples with disability has just been started as UT appeal, even tho one exactly the same is drawing to conclusion, wish I knew wat the DWP motivation was, maybe if they get beat they might have a second chance with ours on different law error

    • Perhaps. Though they would have to put an appeal in on yours, even if they were then going to ask for a stay pending the Glasgow case. And the article 14 cases are not on as common ground as the room size ones, where one test case will settle a key point.

      (Also worth mentioning that the DWP do read this blog!)

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