ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LADY JUSTICE SHARP
| WAYNE OBREY
|- and -
|THE SECRETARY OF STATE FOR WORK AND PENSIONS
THE EQUALITY AND HUMAN RIGHTS COMMISSION
Marie Demetriou QC (instructed by Treasury Solicitor) for the Respondent
Helen Mountfield QC (Instructed by The Equality and Human Rights Commission) for the Intervener
Hearing date: 12th November 2013
Crown Copyright ©
Lord Justice Sullivan :
The Upper Tribunal's Decision
"…..the question I must ask in the present case under the authority of Humphreys is whether the failure to treat the mentally ill differently from the physically ill in relation to the 52 week absence rule was "manifestly without reasonable foundation."
"29. The arguments before me primarily concentrated on whether, if regulation 7(17) when taken with regulation 7(16)(c)(ii) was indirectly discriminatory because it did not sufficiently address the different circumstances of mental health patients, those provisions taken in isolation could be justified. I return to this issue below
30. It seems to me, however, that there is a prior issue. It is to be noted that there was no submission before me that the 52 week period of absence permitted for the categories of persons listed in regulation 7(16) was itself in general unreasonable: indeed the EHRC accepted in a written submission that it had a legitimate aim. It is also to be noted that, unlike, for example, the single bedroom rule under consideration in Burnip, the 52 weeks rule is not a rule which excludes claimants from the outset from entitlement to benefit or enhanced benefit: rather it is a rule which provides an exception, beyond the normal 13 week absence rule, for the identified categories. In my judgment, in the case of a rule which includes those who would otherwise be excluded from benefit, the state is clearly entitled to introduce a "bright-line" test and that any discrimination that might occur after the expiry of an accepted generally reasonable 52 week period could not be found to be "manifestly unreasonable". (In the context of universal credit, the shortly to be introduced working-age means-tested benefit where a "housing costs element" is to be the substitute for housing benefit, I note that draft regulations recently laid before Parliament provide that a maximum of six months absence is to be permitted for all categories of claimant without exception, save for victims of domestic violence where the maximum period is extended to 12 months."
"(b) The Housing Benefit Regulations did not in general require local authority decision makers to exercise discretion. Reliance was placed upon the witness statement of Susan Donald. The local authority information management systems were not equipped to handle confidential medical information and additional administrative costs would be incurred. The proposed exception would cause decision-makers to have to make a predictive judgment at or about the expiry of the 52 week period as to when any particular patient was likely to be discharged and whether it would be desirable for any particular claimant to return to his previous accommodation and if so at what stage of the discharge….
(d) The regulations in question did not result in claimants being left without accommodation or without suitable accommodation. The availability of housing benefit after discharge enabled them to secure suitable and appropriate accommodation of their choice. Further section 117 of the 1983 Act placed a duty on primary care trusts and local social services authorities, in conjunction with voluntary agencies, to provide aftercare for patients detained under the 1983 Act. Aftercare planning, which would be carried out before the date of patient's discharge, would certainly include the ensuring the availability of suitable accommodation – reference was made to Chapter 27 of the Mental Health Act 1983 Code of Practice, published in 2008…..
(f) The introduction of an exception for the mentally ill to the rule in regulation 7(17), when taken with regulation 7(16)(c)(ii), could well have the consequence that similar challenges would be made either by long-term hospital patients with physical heath problems, or by persons in the other categories listed in regulation 7(16)(c), for example those in residential accommodation or those receiving medically approved care or convalescence. It was pointed out that women, who were more likely than men to be the object of domestic violence, might mount a parallel challenge on the grounds of sex discrimination to regulation 7(16)(c)(x)."
The Appellants' and the Commission's response included the following submissions:
"(g) The housing benefit legislation contained numerous discretionary elements, which were identified.
(h) In the light of R (Mwanza) v LB Greenwich (2010) 13 CCLR 454 there was a real risk that the authorities mentioned in section 117 of the 1983 Act would not provide accommodation themselves to meet ordinary housing needs."
"34. First, the absence of any prior justification for the provisions under consideration (which had their origins in the Housing Benefit Regulations 1987) does not preclude justification at a later stage. Justification has to be considered at the time that it is called into question. Secondly, and most importantly, the claimants have, in my judgment, concentrated too narrowly on the housing benefit rules. It is clear that the housing of the long-term mentally ill after discharge is a matter which involves the relevant primary care trust, the relevant local social services authority (which in most cases will not be the relevant housing benefit authority), voluntary agencies, as well as the relevant housing department and housing benefit authority. To say that the housing benefit rules must therefore be amended (even in the light of the claimants' evidence on comparative costs) is to focus on only one element of a complicated and overall structure and is to enter into the social and economic area, where it is the state which has to decide the disposition of resources and where the courts should be most reluctant to interfere. Thirdly, although administrative problems identified on behalf of the SSWP might be overcome and although local authorities do in the housing benefit context have to make discretionary decisions (for example in relation to discretionary housing payments), the discretion which is suggested should be introduced in the present case is of a different order. These are not cases which for the most part would be "easy to recognise… and unlikely to undergo change or need regular monitoring" (see Burnip at ). I recognise that regulation 7(16)(d) requires a housing benefit authority to exercise some predictive judgment: the introduction of the proposed discretion, however, would require housing benefit authorities periodically to monitor the situation of a mentally ill patient prior to the expiry of the 52 week period, periodically thereafter if he has not been discharged and if he had been discharged, but not to his own home (for example into supported accommodation), to continue such monitoring. The adverse exercise of the discretion could be the potential subject of an appeal or judicial review. I consider that the problems involved are a different order to those considered in Burnip. Fourthly, as was observed in paragraph  of AM (Somalia) this is not a case of planned or directed discrimination and the absence of targeting is an important factor when determining whether potential discrimination is justified. Fifthly, as was observed in that case at  and as set out in paragraph 32(1) above, there is a real, and not fanciful, risk that other challenges to the 52 week rule would be made by persons in other categories within regulation 7(16)(c). I conclude that the brightline rule is justified and is not manifestly unreasonable. (I recognise that, in Burnip, some of the observations in AM (Somalia) were considered to be of lesser weight in the context of social security: nonetheless the two factors mentioned above were not singled out)."
Appeals from the Upper Tribunal
"A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the first-tier and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues as issues of law which are really best left for determination by specialist appellate tribunals." See also per Lord Carnwath at paragraphs 40-47.
The Grounds of Challenge
"…in the case of a rule which includes those who would otherwise be excluded from benefit, the state is clearly entitled to introduce a "bright line" test and that any discrimination that might occur after the expiry of an accepted generally reasonable 52 week period could not be found to be "manifestly unreasonable."
Lady Justice Sharp
Lord Justice Laws