[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. ]