United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A BIRD (of Counsel) Instructed by: Ms G Amodeo (Solicitor) The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MR T NEWTON (Representative) NELC Ward Jackson Chambers 1st Floor 37 Church Street Hartlepool TS24 7DG


 


JUDGE PETER CLARK: This appeal, following an order made by Morison J in Chambers on 21st January 1998 striking out parts of the appellant's Notice of Appeal, raises a single issue on the calculation of compensation for unlawful sex discrimination by the appellant. It arises in the following way.

The respondent was a servicewoman who enlisted in the Queen Alexandra's Royal Army Nursing Corps on 12th April 1983. On 10th December 1988 she married. Her husband was a corporal in the Royal Army Medical Corps. In July 1989 she discovered she was pregnant. She informed a senior officer of that fact and was dismissed from the service on 28th November 1989 in circumstances which the appellant admits amount to unlawful sex discrimination. She then held the rank of corporal.

Her first child, Samantha was born on 17th February 1990. Thereafter the marriage deteriorated. In September 1990 her husband was posted to the Gulf and the respondent and presumably Samantha went to stay with her mother in Middlesborough for six months until her husband returned. She then moved back to army married quarters in Aldershot and a second child was born on 9th January 1992. The marriage did not last and finally broke down in October 1992. Her husband left the army in January 1993 and the respondent divorced him three months later.

Following the breakdown of the marriage in October 1992 the respondent went to live with her two children in private rented accommodation in respect of which the relevant Local Authority, which had been unable to provide council accommodation, paid her Housing Benefit. She remained in that accommodation, in receipt of Housing Benefit until, so far as is material, 1st December 1995. The total benefit paid during that period was agreed between the parties at £11,902.10.

At a hearing held on 3rd May and 13th June 1996 the Leeds Industrial Tribunal resolved certain issues between the parties in respect of the respondent's compensation claim against the appellant. The specific issue with which this appeal is concerned relates to the question of the extent to which the respondent is obliged to give credit for the Housing Benefit which she received between October 1992 and December 1995.

The issue is dealt with in paragraph 4(d)-(f) of the tribunal's extended reasons dated 11th July 1996 in the following way. It was the appellant's case that the respondent should give credit for the whole of the benefit received. The respondent contended that since her housing costs in respect of which Benefit was paid were four times the cost to her of army accommodation had she not been discharged from the service, she ought to give credit for only 25% of the Benefit received, that is, £2,975.53.

We should refer to one sentence in paragraph 4(d) of the reasons which reads:

"The respondent [appellant before us] did not dispute that the applicant [the respondent before us] should be given credit for something."

We are quite satisfied, and Mr Bird accepts, looking at the context in which that sentence appears, that the tribunal has simply put the parties the wrong way round. The true sense is that the applicant accepted that the respondent below should be given credit for something in respect of the Housing Benefit, but that it should be limited to 25% of the full amount of Housing Benefit received, the whole of which was claimed as a deduction in these proceedings by the appellant.

As a matter of legal principle, rather than fact, the appellant advanced two arguments in support of its contention. First, that the non-availability of council housing was a novus actus interveniens which broke the chain of causation. Had she not been discharged she would have been entitled to accommodation at a cost that was on a par with Local Authority accommodation. The failure of the Local Authority to provide her with council accommodation could not be laid at the door of the appellant.

Secondly, it was not reasonably foreseeable that following her discharge from the army she would be incurring accommodation charges four times those which applied had she remained in the service.

The Industrial Tribunal rejected those arguments, preferring those of the respondent. They expressed their reasoning at paragraph 4(f) of the reasons in this way:

"All she required was a roof over her head and whilst she was in the forces the Army provided that. Because of her circumstances when she left the Army the local authority became responsible for providing a roof over her head. The fact that no local authority housing was available was no fault of the applicant. The local authority had to make such provision for the applicant so that it could carry out its statutory responsibility. There is no evidence as to the type of housing which the applicant occupied under the local authority scheme so there is no evidence that the accommodation was of superior quality to the accommodation she enjoyed whilst in the forces."

Mr Bird repeats and develops those two arguments on behalf of the appellant before us today.

As to the novus actus point, it is said that the intervening act which broke the chain of causation was that the Local Authority failed to find the respondent council accommodation at a cost equivalent to army accommodation.

In our view, the Industrial Tribunal was perfectly entitled to reject that contention. There was no failure, or fault on the part of the Local Authority. It was under a statutory duty to accommodate the respondent; it did not have council accommodation available; so it made arrangement for her to rent private accommodation and provided the necessary Housing Benefit to allow her to do so in the discharge of its statutory obligations. No question of novus actus arises on these facts.

Secondly, reasonable foreseeability. No evidence on this point was led by the appellant. It was plainly foreseeable, as the Industrial Tribunal found, that if the council accommodation was unavailable it would be necessary for the respondent to rent equivalent accommodation privately and that may be more expensive than council accommodation.

However, we shall dismiss this appeal, having rejected both arguments advanced on behalf of the appellant, on a more fundamental basis. As Mr Bird acknowledges, by reference to the judgment of Morison J in Ministry of Defence v Cannock [1995] 2 AER 449, the approach of an Industrial Tribunal is to put the successful complainant as far as possible in the position she would have been in but for the appellant's unlawful conduct in discharging her. On this issue, that is done, in our judgment, by requiring her to give credit for the value to her of any accommodation had she been paying for it in the Armed Forces. That she has done. No more is required of her.