[Update 6/10/14 – got the judgments now. Detailed comment here]

This is frustrating! A DWP circular HB U4/2014 contains an annex with notes on four Scottish Upper Tribunal bedroom tax decisions. Two of them I have already addressed here, but the first and the third are new to me. From the precis in the DWP circular, they look like significant decisions, but it is hard to tell what the actual impact will be. If anyone has copies of the judgments, please send them!

The DWP precis read as follows:

CSH/188/2014
This case relates to a couple living in a two bedroom property who argued that due to his wife’s disabilities her husband required a bedroom of his own. The FtT allowed the appeal stating that the claimant was entitled to two bedrooms so an under-occupancy reduction was not appropriate. The Secretary of State appealed to the UT on the grounds that the FtT had applied the wrong test for justification, had not followed the decision of the Court of Appeal in ‘MA & Others’ and had instead relied upon the decision of the Court of Appeal in ‘Burnip’.

The Judge accepted the submissions on behalf of the Secretary of State, agreed that the FtT erred in law by following the decision in ‘Burnip’ and followed the decision in ‘MA’. The Judge acknowledged that sitting as a judge of the UT in Scotland he was not bound by a Court of Appeal decision in England and Wales. He made it clear that he would only decline to follow such a decision if in his view it was “clearly wrong”. As he did not consider the decision in ‘MA & Others’ to be clearly wrong he chose to follow it.

In addition the Judge held that the approach taken in ‘MA and Others’ applied to both decisions of the Court of Appeal on judicial review applications and also to those taken through the standard appeals procedures.

CSH/589/2014
This case relates to a single claimant where the FtT accepted the claimant’s argument that the third bedroom in her house was used as an extension to her own room as due to her disability she required extra space to get dressed and also to store medication and medical notes in a locked cupboard. The FtT concluded that the application of the size criteria in the social sector was incompatible within the terms of Article 14 of the European Court of Human Rights (ECHR). The Secretary of State appealed and the UT found that the FtT had erred by not applying the correct test for justification of discrimination in a case relating to the payment of state benefits and that the decision of the Court of Appeal in ‘MA & Others’ had not been followed.
The UT Judge in deciding the appeal followed MA and allowed the appeal, confirming the original LA decision.

Comment

What it looks like is that the UT has effectively overruled various FTT decisions in which MA & Ors was distinguished or otherwise not followed, and specifically the argument that the statutory appeal process involves different considerations to a policy consideration through judicial review was overturned. But without seeing the judgment, and specifically what was argued and what was found, it is hard to tell.

If, for instance, the UT finding on MA & Ors applying equally to JR and the tribunals was made solely on argument from the DWP, and without hearing the kind of argument made in the Carmichael FTT, then the decision might well be taken to the court of appeal (of course it might be anyway).

But, pending having the judgments to consider, it does appear that most Article 14 discrimination appeals now have a large problem.  It may be – pending an examination of the actual judgment – that arguments about whether DHP is in payment, or whether DHP is unduly conditional, what could be called the Rutherford argument, are the only option left on Article 14 cases.