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.
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  PTSR 584.
(c) They had rather relied on the decision of the Court of Appeal in Burnip v Birmingham City Council  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  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.
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  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.