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Not enough information: Bedroom tax and disability discrimination


[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:

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.

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.


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.

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.


  1. jayson carmichael

    Just a reminder. Our UT has been put on hold until supreme court decides on a hearing Giles

  2. jayson carmichael

    MIGHT it be that its something to do with DHP. DHP is guaranteed now in Scotland, BUT not in England and Wales??

  3. jayson+carmichael

    In England and Scotland DHP arguments are now different, do they want to hide that?

  4. jayson+carmichael

    Our FTT reasons do cover the reasons for not going along with Ma & Ors very specifically, , from the actual JR case and how our(Carmichael) case was discussed at (Royal Court of Justice) though we don’t know how much this UT case discussed here , was different to ours..

    • Giles Peaker

      Hi Jayson, yes I realise that most UT appeals on disability discrimination have been stayed pending the Supreme Court on MA & Others. I don’t know why the Scottish UT decided to go ahead with these.

      I really need to see the judgments to see how the difference between Tribunals and JR is dealt with.

      Also, from the DWP notes, it is impossible to tell how DHP was dealt with in these two cases, if at all. As you say, the position on DHP in Scotland is quite different.

  5. Peter+Barker

    It’s also impossible to tell whether the First-tier Tribunal in CSH/589/2014 found as a fact (quite apart from any human rights considerations) that there were not three bedrooms (perhaps because B3 formed a de facto extension of B2); and if so whether that finding of fact was left undisturbed by the UT – the claimant might actually have won this case, in which case the Bulletin is a selective piece of spin. I think the next crop of really interesting UT decisions on bedroom tax will be about what exactly is a bedroom: could this have been one?


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