Obrey v Secretary of State for Work and Pensions [2013] EWCA Civ 1584 concerns an appeal against an Upper Tribunal (Administrative Appeals Chamber) decision which set aside the findings of the First-tier Tribunal (Social Security and Child Support) that Reg. 7(17), Housing Benefit Regulations 2006, breached Art. 14 ECHR (although not expressly set out in the Judgment, presumably in conjunction with A1P1).

The Court of Appeal dismissed the appeal and the case shows a strict approach as to what is considered to be a point of law for the purposes of s.13, Tribunals, Courts and Enforcement Act 2007 and suggests that the issue of justification falls within the specialist competence of the Tribunal in these types of cases.

For housing benefit purposes, a person is treated as occupying a dwelling as their home where there is a temporary absence of less than 13 weeks: Reg.7(13).  This period is extended to 52 weeks for individuals who fall within specified categories which include hospital patients: Reg. 7(16), (17).

All of the appellants, Mr O, Mr S and Ms S, suffered from mental health illnesses and had been detained under s.3 Mental Health Act 1983 for longer than 52 weeks and were, therefore, no longer entitled to housing benefit.  On appeal to the First-tier Tribunal, it was contended that they were discriminated against under Art.14 as they were more likely to be resident in hospital in excess of 52 weeks than other patients because of the nature of their disability. The First-tier Tribunal found that there was indirect discrimination which was disproportionate and unjustified.

On appeal, the Upper Tribunal set aside the decision of the First-tier Tribunal because it had failed to address the “manifestly without reasonable foundation” test when considering whether the discrimination was justified. The Upper Tribunal concluded that although the 52 weeks rule did indirectly discriminate against the mentally ill, the rule could be justified. It was this decision which was the subject of the appeal to the Court of Appeal.

The Court of Appeal rejected what it considered to be a suggestion by the appellants that there should effectively be a re-hearing of the issue of whether the discrimination was justified given that the right to appeal was on a point of law only under s.13(1), Tribunals, Courts and Enforcement Act 2007, noting the Supreme Court’s guidance on the dividing line between law and fact in R(Jones) v First-tier tribunal [2013] UKSC 19 (citing paragraph 16 of Jones).  Although it was accepted that there had been detailed consideration of proportionality in Burnip v Birmingham City Council [2012] EWCA Civ 269 (which concerned an appeal from the Upper Tribunal), it was noted that there had not been any discussion in that case as to the respective roles of the Upper Tribunal and the Court of Appeal. The Court of Appeal also rejected the submission that the issue of justification was not within the specialist competence of the Upper Tribunal because it was an issue of “constitutional significance”, concluding that “it is precisely the kind of issue that is best left for evaluation and judgment by a specialist appellate tribunal with a particular expertise in the field of social security law.” [18]

The Court of Appeal went onto consider whether there was an error of law by the Upper Tribunal.

It was contended by the appellants that although the Upper Tribunal Judge had posed the right question, whether the discrimination was manifestly without reasonable foundation, he had failed to consider what that meant in the circumstances of the particular case. The Court of Appeal rejected what it described as a submission by the appellants that came “perilously close” to suggesting “provision for individualised assessment was always necessary and that a “bright line” rule could rarely, if ever, be justified” [19]:

“The particular nature of the discriminatory measure and the nature and extent of the discrimination……are plainly relevant when one comes to consider the issue of justification. The judge was therefore correct to have regard…….to the wider statutory context. Regulation 7 sets out in considerable detail the circumstances in which a person is, or is not, to be treated as occupying his home. By way of a general exception to the need for there to be actual occupation, a temporary absence from home for a period not exceeding 13 weeks is treated as occupation. Regulation 7(17) then creates an exception to the 13 week limit for the benefit of a carefully defined list of persons in regulation 7(16). In these respects, regulation 7 is the antithesis of a “blanket or indiscriminate” measure. Of course, the exceptions could have been more nuanced and could have distinguished between those hospital patients who are physically ill and those who are mentally ill, but the failure to make what would have been a further exception to an exception does not mean that a “bright line” exception which is in favour of all hospital patients can sensibly be described as a measure that is of a “blanket and indiscriminate nature.” [21]

It was submitted that the Upper Tribunal Judge had also fallen into error when considering justification by looking at the involvement of a number of agencies in housing the mentally ill after discharge but failing to scrutinise those forms of assistance. This was rejected by the Court of Appeal which considered that the overall structure of assistance available when a mentally ill patient is discharged was relevant but that the Judge was not required to undertake a detailed analysis of the effectiveness of that structure [25].

It was also argued that the Upper Tribunal Judge had fallen into error by finding that the discretion which it was argued by the appellants should be introduced to the Regulations was not one which would be easy to recognise and would require frequent monitoring by the housing benefit authority (in contrast to Burnip) and that there was a real risk that other challenges would be brought against the 52 weeks rule by others who fell within the specified categories.  The Court of Appeal rejected this on the basis that these issues were not questions of law but were “pre-eminently questions of evaluative judgement for the expert appellate tribunal” [26], [27] which the Upper Tribunal Judge was entitled to reach.