01/09/2014

Bedroom tax and human rights: The UT has a go

I’ve got two Upper Tribunal decisions on bedroom tax appeals, both from Scotland. Both concern human rights related cases. One concerns what sounds like a fairly hopeless and sadly not well argued case based on disability. The other is considerably more significant and concerns article 8 and shared care of children.

CSH 374 2014 [decision can be downloaded here]
The appellant was subject to the 14% deduction on one bedroom. He was the sole tenant and occupant of a two bedroom property. He apparently is disabled. At the First Teir Tribunal, it was apparently argued by the tenant’s representative that:

The amended Housing Benefit Regulations are themselves discriminatory as they do not allow a remedy for tenants who are as vulnerable as the appellant in this case. The effect of the regulations is that it either forces him to move to a property which would compromise his health or he remains and is financially penalised and that in a situation where he was actually given this tenancy in the first place as a sole tenant – its not as if he is the last remaining occupant of several who had previously been there.

However, it seems that no particular case was made on the nature of the tenant’s disabilities and the Tribunal rejected that case, saying that the Regulations had been correctly applied and there was no basis in law to allow the appeal.

The Upper Tribunal upheld the FTT on this point.

“Given the very general nature of the submission on the issue of discrimination advanced before him, I hold that the tribunal judge dealt with it adequately in the paragraphs from his Statement of Reasons…”

However, the tenant had also raised a further argument that the Regulations were in breach of the Public Sector Equality Duty.

However that is not the end of the matter so far as this appeal concerned. There remains the question of whether the process of the making and implementing by the government of the policy which is enacted in regulation B13 constituted a breach of the Public Sector Equality Duty created by section 149 of the Equality Act 2010. Disability is a “protected characteristic” under section 149(7) of that Act. It is important to emphasise however that the Public Sector Equality Duty applies to the process I have just described and not to the making of decisions relating to individual claimants under regulation B13 once it had been enacted. The claimant’s representative appears to be under a misapprehension that the Public Sector Equality Duty applies in the latter situation and thus directly to the decision taken by the Council.

In MA and Others v Secretary of State for Work and Pensions [2014] EWCA Civ 13, the Court of Appeal in England and Wales held that the process I refer to in paragraph 11 above involved no breach of the Public Sector Equality Duty. See paragraphs 83 – 92 of the Judgement of the Master of the Rolls, Lord Dyson, and paragraph 98 of the Judgement of Lord Justice Longmore in that case.

Appeal dismissed, with the Tribunal adding for good measure:

The claimant’s representative does not refer to the Human Rights Act 1998 or any of the articles of the European Convention on Human Rights in her grounds of appeal on document 30 although she makes a general allusion to “discrimination” on document 48 where she responds to the submissions of the Secretary of State on documents 43 – 44. However for the sake of completeness I note that in MA and Others, cited in paragraph 12 above, the Court of Appeal in England and Wales held that the discriminatory effect of the enactment of regulation B13 was justified for the purposes of the European Convention on Human Rights. See paragraphs 39 – 82 of the Judgement of the Master of the Rolls and paragraph 99 of the Judgement of Lord Justice Longmore in that case.

Technically, sitting as a judge of the Upper Tribunal in Scotland, I am not bound by a decision of the Court of Appeal in England and Wales. However I should only decline to follow such a decision on a point indistinguishable from one arising before me if it was in my view, “clearly wrong”. See paragraph 13(a) of my decision in RJ v Secretary of State for Work and Pensions [2012] AACR 28. I do not consider that the decision in MA and Others is by any means clearly wrong either in regard to the Public Sector Equality Duty or to discrimination and justification under the European Convention on Human Rights. I thus follow it.

CSH 777 2013. [Judgment can be downloaded here]
The appellant is the sole tenant of a two bedroom property. The only other person who sometimes stays at the house is the appellant’s 14 year old son, who stayed each week for 3 nights, using the second bedroom as his own. In the course of the appeal, the tenant was awarded DHP from 1 April 2013 and confirmed to 31 March 2015. This had a bearing on the case. In addition, there were no one bedroom properties variable through his landlord and he was unable to take in a lodger. His hearing loss made it difficult to find employment.

The appellant’s argument on Art 8 was rejected by the First Tier Tribunal, but it was agreed by both appellant and respondent that the FTT had not properly directed itself on how Convention rights might be applied, having ceased to consider them after noting it could not make a declaration of incompatibility.

The appellant sought a declaration that his case was ‘seriously arguable’ and should receive a further hearing on the particular facts and circumstances of his case.

The full details of the appellant’s and the DWP’s submissions on the applicability of Article 8 in relation to the regulations in such cases are well worth reading. But in short, the Upper Tribunal found:

Article 8 was engaged.

I have reached the view that the first part of the Razgar test could be satisfied by a case such as the present, in which the under-occupancy deduction may affect the appellant’s tenancy, when the additional room is used by a child under shared care arrangements. I accept the relevance of UNCRC and that the best interests of the appellant’s son are an important consideration. As it seems to me, the question at this stage is whether there may be “interference”, as opposed to failure to provide or to give positive support. As well as the clear indications on the authorities that neither Article 8 nor any other Convention right are directed generally at the provision of benefits, in particular housing, there are indications that there might be cases in which a measure may interfere with longstanding arrangements in which considerations of the welfare of a child or children arise. This distinction between provision (the positive obligation) and interference (the negative obligation in a ‘shared care’ case) is indicated in paragraph 41 of the opinion of Baroness Hale in Holmes-Moorhouse, although I do note that that particular case had nothing to do with Convention rights

The consequences were not of such gravity as to amount to ‘sufficient gravity’ under the test in Razgar [2004] 2 AC 368.

However, I am also of the clear opinion that any relevant interference which may be established in this case could not, having regard to the jurisprudence on Article 8, be regarded as having consequences of such gravity as to satisfy the second part of the test and thus require the respondents to show justification. Here again I refer to the consideration of the free-standing claim in SG. At this stage I see no reason to leave the scheme of discretionary housing payments out of account and in that situation, looking at what this appellant may be able to establish, I cannot see that this case could be of sufficient gravity. Nor is SG the only case illustrating the degree of interference which would be required. As Mr Bryce fairly acknowledged, all that the appellant can point to is a degree of uncertainty in the past and a degree of uncertainty as to the future. As to the past, I cannot see that the by no means unduly long period during which the application for discretionary housing payment was being processed, or the brief accidental failure to make the payments, can have any weight at all. As to the future, while I do not regard this as irrelevant, I do not on the material before me think that it can have a serious effect on consideration of the present position. I note the reference in para 100 of SG to “a premature and pessimistic assumption” and consider the position about the discretionary payments in the short period of around six months during 2015 is similar. It will be clear from the foregoing that I regard the approach taken in MA and Rutherford to discretionary housing payments as part of the scheme under consideration, as relevant here even although the issue in those cases related to justification of discrimination. Mr Bryce did not argue otherwise although, as already noted, he may have been putting the arguments into slightly different compartments. Put shortly, taking the discretionary housing payments into account, there is no interference of any gravity at all with the appellant’s Article 8 right or that of his son.

However, the DWP sought a further decision:

that, even without the discretionary housing payments, there could not be sufficient interference, on the basis of the evidence proffered by the appellant. He argued that the facts that the appellant remained in his house, i.e. has not lost the tenancy, and continues to exercise the same child care, were on their own, i.e. even if the shortfall in benefit had not been made up, showed that he could not succeed in showing interference of sufficient gravity.

This the Tribunal was not prepared to accept.

I have decided the case particularly on the basis of the discretionary housing payments, but would add that I think an appellant who is not able to show actual, as opposed to threatened, serious breaches of his home and family life, may well find it difficult to overcome this particular hurdle in an Article 8 argument. It might also be – I only say might be – that the appellant’s son’s family life might not be sufficiently seriously interfered with even if the appellant were required to move to a smaller house. While one could envisage particularly serious consequences in some cases for children, might there also be, individual cases in which the interference does not have a sufficiently serious effect. However, I do not require to consider that further.

Appeal dismissed.

Comment

These cases show the detailed consideration that human rights  and discrimination cases will get in the Upper Tribunal.  And it is clear that it will be a high threshold.

While CSH 374 2014 was not a strong case in the first place, and apparently the argument on appeal was not well made, it is a concern that the UT – and a Scottish one at that – found that it would only depart from MA & Ors if, on the case before it, MA was ‘clearly wrong’. That seems to me to be the wrong test and to misunderstand the basis of the decision in MA – pace the appellant’s argument in the Carmichael FTT.

The position in CSH 777 2013 is rather different. The Tribunal accepted that Art 8 was engaged on a ‘separated family’ case. This specific case failed on the facts, in particular that there was a commitment to two years of DHP, from April 2013. While the case didn’t even reach the point of considering justification, largely due to the DHP being in payment, there does remain the possibility of an Art 8 appeal on this issue going further. (Though it should be noted that the DWP raised Humphreys v HMRC [2012] 1 WLR 1545 in argument, and that this was not dealt with by the UT, as not necessary to decide.)

Based on this, it would seem that receipt of DHP, and conditions around the receipt of DHP, will potentially play a significant role in UT decisions on human rights appeals, both Art 8 and Art 14.

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.

10 Comments

  1. jayson carmichael

    Does these developments have any bearing for us Giles. Also a factor now is that DHP in Scotland is GUARANTEED, not in England, will that have any significance?

    Reply
    • Giles Peaker

      Hi Jayson, I don’t think it says anything about your case that your lawyers won’t already have anticipated. And I think the effectively guaranteed DHP in the second case here – at least to 31 March 2015 – made all the difference. That is expressly what the UT finds on.

      Reply
  2. jayson carmichael

    DHP in Scotland now totally guaranteed

    Reply
  3. Peter Barker

    If the UT Judge had been impressed by DWP’s argument that Humphreys was fatal to the appeal, that would have been the quickest and easiest way to dispose of the case. But the UT has recognised that there is far more to Article 8 than the question of financial support for children being channelled through one parent instead of being split/duplicated (Humphreys having definitively nailed that issue). So it is encouraging that the UT was prepared to entertain an Article 8 appeal without regarding Humphreys as the last word on shared custody. This is the first faintly optimistic outcome for separated parents in a benefits appeal at UT level or higher since Hockenjos in 2004

    Reply
    • Giles Peaker

      Hi Peter

      Yes, I tend to agree. Clearly there will be a high threshold in demonstrating that the Art 8 interference is sufficiently serious, or significant enough to merit a proportionality, but it is encouraging that the UT chose to go the route it did, rather than just reaching for Humphreys.

      The DWP’s line of attack in such cases is also now clear.

      Reply
  4. The.Dark.One

    “It is important to emphasise however that the Public Sector Equality Duty applies to the process I have just described and not to the making of decisions relating to individual claimants under regulation B13 once it had been enacted. The claimant’s representative appears to be under a misapprehension that the Public Sector Equality Duty applies in the latter situation and thus directly to the decision taken by the Council.”

    I thought that PSED did apply to decisions, based on Pieretti v. Enfield Borough Council [2010] EWCA 1104? EHRC Technical Guidance on PSED says it does.

    Reply
    • Giles Peaker

      Yes, but I think the tribunal meant that applying the regulations could not be a breach of PSED. Pieretti [our note here] simply means must have due regard to disability in making of decisions, not that there is an obligation or power to decide other than by regulations.

      Reply
  5. The.Dark.One

    Similar to the concept in Kanu v Southwark London Borough Council [2014] EWCA Civ 1085; [2014] WLR (D) 344?

    Reply
    • Giles Peaker

      Not exactly. Kanu (Which we haven’t written up yet!) found that PSED duty added nothing to s.189/s.193 HA 1996 duties. The point in the UT case, I think, was that acting in accordance with PSED in making bedroom tax decision could not mean deciding otherwise that the regulations prescribed.

      Reply
  6. Ruth Knox

    Just catching up. I think both these decisions have positive and negative elements. As you say, the decision on the first case would not necessarily apply in many other disability cases. Given the importance placed on DHPs, the second opens the use of Article 8 in principle. Ruth

    Reply

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