Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CH/1312/2010

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Chippenham on 1 March 2010. For the reasons set out below I dismiss the appeal.

 

2. The Claimant is a man now aged 38 who at the material time lived in a 4 bedroom house with his wife and 3 children, a son now aged 18, and daughters now aged 10 and 8. The older girl, Natasha, has Downs Syndrome and the younger one, Hannah, has Spina Bifida.

 

3. The Claimant was at the material time in receipt of income support and carer’s allowance. His wife was in receipt of incapacity benefit, DLA, child tax credits and child benefit. In addition, the Claimant and his wife received DLA in respect of each of the daughters.

 

4. The condition of the daughters was such that they could not reasonably share a bedroom. Most significantly, Hannah is quite fragile and needs a quiet environment away from her very boisterous sister. In the words of the First-tier Tribunal in its Decision Notice: “This is a case where on very clear facts the two young disabled daughters of the family need separate bedrooms……..There is a risk to the family if they are forced from their four bedroom home into three bedroom accommodation – either daughter might end up in care.”

 

5. The house in which the Claimant and his family lived was privately rented, at a rent of £995 per month (£229.61 per week).

 

6. However, on 1 July 2008 a decision was made by North Wiltshire District Council (“the Council”) that the Claimant was entitled by way of housing benefit only to £155.77 per week, being the maximum amount of housing benefit permissible in the Claimant’s circumstances. That is because the legislation specified that the local housing allowance applicable to a claimant with children of the age and sex of the Claimant’s children was to be based on that appropriate for a 3 bedroom property. By reg. 13D(3) of the Housing Benefit Regulations 2006, in assessing the amount of local housing allowance:

 

“The claimant shall be entitled to one bedroom for each of the following categories of occupier (and each occupier shall come within the first category only which applies to him):

 

(a) a couple (within the meaning of Part 7 of the Act);

(b) a person who is not a child;

(c) two children of the same sex;

(d) two children who are less than 10 years old;

(e) a child.”

 

7. The Claimant had been attempting to obtain alternative accommodation by way of social housing, which is not subject to the local housing allowance rules, but without success.

 

8. On 13 October 2008 the Claimant appealed against the decision of 1 July 2008, contending that he ought in the particular circumstances to be entitled to housing benefit based on the rent appropriate for a 4 bedroomed house. That appeal was out of time, but matters appear to have proceeded on the footing that time was extended.

 

9. On 21 October 2008 the Council awarded a discretionary housing payment in the sum of £63.56 per week in respect of the period 1 November 2008 to 2 May 2009. The letter notifying the Claimant of the award stated:

 

“As stated above, DHP is a cash limited fund, and cannot be awarded indefinitely. If you choose to remain in the property after the award has expired, you will be expected to make up the shortfall between your rent and the Housing Benefit entitlement. The DHP has been awarded in order to give you some time to resolve your financial situation in order that you can manage the shortfall yourself, or to give you some time to seek alternative, cheaper accommodation before your DHP expires on 2 May 2009. If you do need another DHP you will need to re-apply, but I must stress it is highly unlikely that another DHP will be awarded.”

 

10. On 1 January 2009 the Claimant and his family moved to a different 4 bedroomed house, again privately rented, at the cheaper rent of £850 per month (£196.15 per week). That meant that the shortfall in housing benefit was rather less, but there was still a shortfall, as the same amount of housing benefit (£155.77 per week) was awarded by a decision made on 19 January 2009. The discretionary housing payment continued at the new address, but at the lower amount of £40.83 per week. On 2 February 2009 the Claimant also appealed against the decision of 19 January 2009.

 

11. The Claimant’s appeal was heard, as I have said, on 1 March 2010. The Council’s written submission to the First-tier Tribunal, and the First-tier Tribunal’s Decision Notice, are on the footing that only the decision of 1 July 2008 was under appeal. Whether there was at the same time a separate decision by the First-tier Tribunal in respect of the appeal against the decision of 19 January 2009 I do not know. It does not matter for present purposes, as there appears to be mo material distinction between the circumstances relating to the two appeals.

 

12. The Claimant was represented at the First-tier Tribunal hearing by the local CAB. It was argued on his behalf that reg. 13D(3) operated unfairly in relation to the Claimant and his family, in that the two daughters could not reasonably be expected to share a room, and therefore under the Human Rights Act (and in particular Articles 8, Article 1 of Protocol 1 and Article 14 of the Human Rights Convention) the effect of reg. 13D(3) should be modified. The chairman pointed out that what was being argued was not that the Claimant was being treated differently from persons in similar circumstances, but that they were being treated in the same manner as other families whose children were not disabled when they ought to be treated differently by reason of the disability. No authority was cited to the First-tier Tribunal in support of such an approach.

 

13. The First-tier Tribunal dismissed the appeal. The chairman said in the Statement of Reasons that she was not aware of any authority which would permit positive discrimination in the manner suggested. She then continued:

 

“Even if a relevant difference in treatment can be identified, the Tribunal would have to go on to consider objective justification and proportionality. The LHA provisions might be objectively justified in the sense that they have a legitimate aim and bore a reasonable relationship of proportionality to that aim. That might be the need for efficient and simple decision making. Absent any remedy for hard cases, such as this, that might not be enough. Given the power, however, for the local authority to pay a discretionary housing benefit to prevent the children losing their home or even for the authority to rehouse in four bedroom accommodation which on the basis of [the Council’s representative’s] account would be fully funded if not provided through a private landlord, it might be difficult to establish that the LHA provisions are not objectively justified and proportionate, in the interests of simple and efficient administration.”

 

14. I gave permission to appeal to the Upper Tribunal, on the basis that the case of Thlimmenos v Greece 31 EHHR 15, at para. 44, might provide some support for an argument based on Article 14 in conjunction Article 1 of Protocol 1, in circumstances where the Claimant ought to have been treated differently from persons with children without disability. However, I later directed that the appeal be stayed pending a decision by Upper Tribunal Judge Howell in IB v Birmingham City Council [2011] UKUT 23, which raised a similar point. That case was decided on 13 January 2011.

 

15. In that case the claimant himself was very seriously disabled and required a team of carers who provided 24 hour care and support. He therefore required accommodation with 2 bedrooms, the second being occupied by the member of the team who was providing the overnight care at any particular time. He did not require anyone to be constantly awake and watching over him, so the carer on duty could sleep for most of the time in a separate bedroom.

 

16. Under reg. 13D(3) the claimant qualified for the local housing allowance applicable to one bedroom self-contained accommodation. The team of carers did not qualify as an “occupier” within reg. 13D(3) because they clearly did not occupy the second bedroom “as their home” (see the definition in reg. 13D(12)). The contention on his behalf was that he should be entitled to an award of housing benefit based instead on the eligible rent for 2 bedrooms, as if his team of live-in carers together constituted an additional single adult also residing in his flat as their home.

 

17. In a review of the authorities at paras. 37 to 41 Judge Howell concluded that the principle stated as follows by Maurice Kay LJ in AM (Somalia) v. Entry Clearance Officer [2009] EWCA Civ 634 at para. 14 was established:

 

“Different treatment of persons in analogous situations and same treatment of persons in significantly different situations are both prima facie discriminatory under Article 14 where it is disability that is the reason for the different treatment or the feature that makes the situations significantly different. The real and more difficult issue in the present case is justification.”

 

18. Judge Howell had earlier noted (para. 17) that it was common ground before him that Article 14, in conjunction with Article 1 of Protocol 1, were in point, on the basis that disability was capable of falling within the expression “other status” under Article 14, and on on the basis that housing benefit is a “possession” for the purposes of Article 1 of Protocol 1. It was not common ground that Article 8 (in conjunction with Article 14) was engaged,  but it was unnecessary for him to consider that.

 

19. Judge Howell went on to hold, however, that on the material before him the Secretary of State (who had been joined as a party to the appeal) had established that the failure to treat the claimant differently in relation to the number of rooms for which he qualified, as regards the calculation of local housing allowance, was objectively justified. It is desirable to quote the relevant paragraphs of his decision in full:

 

“42. The more difficult question is of course whether the principle is actually applicable here to make the lack of the special extra provision the claimant wants added to his housing benefit into unlawful discrimination contrary to Article 14.  In my judgment it is not, for reasons which follow a fortiori from the principles applied by the Court of Appeal in concluding there was no such discrimination in AM (Somalia) itself.

43. In this kind of discrimination claim, even more than in one of adverse differential treatment, the blended approach identified in paragraph 30 above must apply and it is inevitable that the principal, if not the entire, focus must be on the question of objective and reasonable justification (which for the reasons there given is in my view a broader concept in the context of Article 14 than a mere “defence” to a complaint of indirect discrimination under domestic legislation).  Ex hypothesi there is no differential treatment in the provision the claimant is complaining about, because the nature of his complaint is that there should be:  a special rule more favourable to him than the one that applies to others.  The ECtHR judgments so far have held back from attempting to define the “certain circumstances” where Article 14 may require positive differentiation in favour of particular groups, or the scope of the separate and more important “inequalities” required to be corrected by this means; though with such a potentially wide reaching principle it is I think significant that in no case cited to me (and so far as I am aware in no case, in the ECHR or our own higher courts) has the Article so far been held actually applicable to make such differentiation mandatory, other than in Thlimmenos itself. 

44. In my judgment the most relevant factor is that this complaint is of a failure to provide an additional amount of money by way of social assistance for a group of people already entitled to a number of closely defined and not insignificant amounts of assistance under the interlocking provisions of the benefits system.  It is not one that concerns an exclusionary rule of the kind at issue in either Thlimmenos itself or AM (Somalia); in the former case, a harsh and unreasonable one which arbitrarily barred a person from a profession on grounds inextricably bound up with the exercise of his religious principles; in the latter, one that prevented a disabled person from having her spouse join her to live a normal family life in this country - even so being held justified. 

45. It is well established in the ECtHR jurisprudence that the state has a wide margin of appreciation in  matters of social policy and the allocation of public resources. Immediately after the passage in Stec quoted above the Court’s judgment continued:

 “51. ... A difference in treatment is ... discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.  The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. 

52.  The scope of this margin will vary according to the circumstances, the subject matter and the background.  ... a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy.  Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’.”

46. This principle must in my view be of particular relevance in any complaint to a court that additional amounts of social assistance, beyond those the national social security and social asssistance systems already provide, are required as a matter of law to be awarded to particular people or groups of people by virtue of Article 14. As already noted, even in the case of the exclusionary rule which prevented a disabled person’s husband joining her in this country (because they were unable to meet the standard requirement of self-sufficiency and lack of recourse to public funds), the Court of Appeal in AM (Somalia) held the rule met the test of objective and reasonable justification.  Maurice Kay LJ specifically referred to the relatively small additional cost to public funds involved but after a review of the whole facts concluded: 

“29. ... All this convinces me that it is reasonable and proportionate to have a criterion of self-sufficiency without a general exception for the disabled.  It will produce cases of hardship but that in itself does not render it disproportionate, particularly where provision is made for exceptional compassionate circumstances.”

Elias LJ at paragraphs 63ff dealt more specifically with the question of public resources, in a passage that deserves to be quoted almost in its entirety:

“63.  The only issue is whether there is a justification for not making an exception, by way of excluding from the scope of [the standard rule], for spouses who are disabled to the extent that they are unable to work.  It was not suggested, or at least not with any vigour, that this was a case of traditional indirect discrimination.  In any event, if and so far as it was, the complaint must fail.  There can, in my view, be no doubt at all that the rule which permits partners to be together only if they are not a drain on the public purse is manifestly justified. 

64.  Mr Fordham [for the appellant] submits that precisely because the number of potential beneficiaries of an exemption from the rule will be relatively small, the additional cost will be limited.  The Article 8 rights of the disabled demand that the state supports this group and therefore the failure to make an exception to [the rule] is plainly disproportionate.

65.  I reject this argument, essentially for the following reasons, which are in large part interrelated.  First, this is an area of social policy concerning control of who should be allowed to enter this country and in what circumstances.  As I have noted, the courts are particularly reluctant to interfere in such areas. 

66.  Second, as Maurice Kay LJ has pointed out, the courts have frequently recognised that “bright line” rules are generally acceptable in such cases notwithstanding that they might produce some hardship.

67.  Third, the practical effect of making the exception involves public expenditure. In my judgment the courts will be particularly slow to require special treatment for a group when it affects the distribution of national resources, even if it be the case that the sums will be relatively small.

 68.  Fourth, and in my view importantly – and this is likely to be true of most indirect discrimination claims of this nature – it is difficult to foresee what other potential claims of a similar kind there may be.  ... given the wide potential category of personal characteristics which might fall under the concept of “status” in Article 14, there is potentially a broad range of cases where persons would be adversely affected by the application of a rule because of some characteristic related to that status.  This does not merely create a difficulty in foreseeing the potential range of claimants urging special treatment, but it also makes the potential costs very difficult to predict.  These uncertainties reinforce the justification for a bright line rule. 

69.  Fifth, as Ms Giovannetti, counsel for the Secretary of State, emphasised, there would be additional administrative costs in having to identify whether a particular case falls within or outwith the exception – a particular difficulty given that the concept of disablity itself is imprecise – and such cases would have to be periodically reviewed.  Indeed, administrative burdens will almost inevitably be created once one departs from a bright line rule because of the need to draw the distinctions which a more nuanced rule will create.

70.  Sixth, as I have said, this is not a case of direct or planned discrimination; as Lord Hope observed in AL (Serbia), para 10, the absence of targeting will be an important factor when determining whether potential discrimination is justified.

71.  Finally, a factor lending some additional support to this conclusion is the fact that the Secretary of State is empowered in particularly compassionate cases to exercise a discretion in favour of entry.  This was a factor which helped to render the rule proportionate in the AL (Serbia) case: see the observations of Lord Bingham at paragraph 3.

72.  For those reasons, therefore, I am satisfied that the failure to adopt a special rule for those whose spouse in this country cannot work by reason of disability is fully justified.  The rule is lawful notwithstanding its discriminatory impact.”

47. Those or corresponding considerations would apply equally to this case to prevent the housing benefit rule here in question from being unlawful under Article 14 even if contrary to the view I have expressed this is a case of adverse differential treatment; and in case anything turns on it I expressly so find.  They must in my judgment apply with even more force to do so when the claim is viewed as one under the Thlimmenos principle, since here the question is purely one of the allocation of social assistance resources under the benefits scheme, and what is sought is not simply the disapplication of a negative exclusionary rule, but the award of an additional cash benefit outside the rules altogether for which there is in fact no valid “system of reference”.

48. In such a context, and against the background of what the benefits system already does provide for disabled people in this claimant’s situation, the argument that an additional cash allowance has to be created by judicial intervention under Article 14 must in my view be approached with extreme caution; even more caution, if anything, than that displayed by the Court of Appeal in AM (Somalia). The self-evident (and in my judgment self-evidently legitimate) aim of the rule being challenged is to control the cost of housing benefit and ensure that this form of social assistance is paid out only for its purpose of helping providing people with a home, not for accommodation to be used for other purposes.  It applies the objective and in my judgment entirely rational criterion that the accommodation allowances therefore depend on the number of occupiers, as defined, that is residents living in the property as their home; not people temporarily there for other purposes however necessary or commendable. 

49. The claimant’s argument really comes down in my view to saying that because of his special needs as a disabled person he requires a more expensive home for himself, and should be entitled to extra housing benefit to reflect this.  He has (or those acting on his behalf have) chosen to pin the claim on the extra room rate for another full-time resident but once one departs from the rules the reality, it seems to me, is that it is the same argument in principle whether quantified in that way or as extra cash towards the increased cost of renting a ground-floor flat with level access, wider doors and other features or adaptations to make it a more suitable home for him. 

50. The benefits system is intricate and complicated, and as has been seen contains many detailed provisions that interact and interconnect with one another.  Of course in such a massive and complex system there will be apparent anomalies and cases where deserving people, as I am sure this claimant is, will find themselves on the wrong side of some detailed distinction or with amounts they consider unfairly fail to reflect their special needs so that more should as a matter of social justice be done for them.  But the evaluation, and if necessary correction, of such matters and the provision of the extra resources for the purpose are questions for the legislature and the executive, and in my judgment well within the principle emphasised by both the ECtHR and the Court of Appeal in the cases I have cited, that these are areas from which courts applying the Convention must stand back, as outside the proper scope of intervention under Article 14.

51. The factors of the practical need for a single clearly-defined rule, the existence of the supplementary system of discretionary housing payments to alleviate hard cases (which even if less than perfect did in fact do exactly that for this claimant for the relevant year), and the unknown quantity of other groups who might with equal justice emerge to claim special treatment and extra cash, all support that conclusion in this case at least as much as in AM (Somalia).  Mr Buley naturally pointed to the introduction of the special extra room allowance for the severely disabled from April 2011 as a de facto acknowledgment that the previous rule was unjustified, but in my judgment that does not at all follow as a matter of law under Article 14.  The extra allowance to alleviate the position of comparatively few claimants is of course being introduced at the same time as much more general cuts across the board in which a lot of others will suffer.  In my view the effect is merely to underline the point that the making of such changes, the amounts involved and their timing, are matters for legislation, not judicial tinkering with just one setting in one individual piece of the overall machinery.

52. In my judgment therefore the claim that there was a violation of Article 14 in the failure to provide the claimant with extra housing benefit outside the rules, at the two-room rate or otherwise, from June 2008 onwards is not well founded and I dismiss it.

53. That conclusion makes it unnecessary to decide the question that exercised me in the course of argument of what jurisdiction I actually had to make an order of the kind sought if the claim succeeded, particularly on the second (Thlimmenos) ground.  I would say only that the point seems to me to be one of doubt because neither in section 6 of the Human Rights Act nor elsewhere does there appear to be any express power for me to award additional cash benefits out of public funds, by way of positive creation divorced from the actual rules (as distinct from simply disapplying an excluding rule, in subordinate legislation where inconsistent with Convention rights); there is no EU legislation in point to invoke the principle of direct effect; and the doubts expressed by Judge Lloyd-Davies in the final paragraph of his judgment in R(IS) 7/09 CM v SSWP about the ability of this tribunal to grant declaratory relief (and for that matter what effect that would have in terms of legal entitlement to benefits) appear to me to be valid ones.”

 

20. In the present case the Secretary of State (who was joined as a party to this appeal) makes the very simple submission that the decision of Judge Howell is conclusive. It has been followed and applied by Upper Tribunal Judge Mark in CH/1334/2010, where the facts were that the claimant and her husband lived in a 2 bedroom flat because the claimant had a leg amputated above the knee and needed a wheelchair, hoist and various other paraphernalia round her bed. However, under reg. 13D(3) the claimant and his wife were a “couple” and therefore the local housing allowance was required to be assessed on the basis of one bedroom accommodation.

 

21. On behalf of the Claimant (who is represented, as below, by the CAB) it is submitted that there is a distinction between this case and that before Judge Howell in that there the argument was that the claimant should be treated as entitled to an extra bedroom for people who were not “occupiers” of the property, whereas here the daughters are undoubtedly “occupiers”. It is further contended that this brings into play Article 8 of the Convention (right to respect for private and family life) and Article 3 (“no one shall be subjected to torture or to inhuman or degrading treatment or punishment”).

 

22. In my judgment it is not arguable that the application of the LHA regime in the Claimant’s circumstances constitutes a breach of Article 8 on its own: see the judgment of Laws LJ in R (Carson) v Secretary of State [2003] 3 All ER at paras. 24 to 29. Article 8 does not impose a positive obligation to provide financial assistance to support a person’s family life. As the Secretary of State accepts that Article 1 of Protocol 1 is “engaged”, for the purposes of Article 14, it does not take matters further to consider whether Article 8 is also engaged for the purposes of Article 14. The justification issue would still arise in the same form. In my view there can also be no question of the application of the LHA regime constituting a breach of Article 3. The denial of housing benefit appropriate in the case of 4 bedroom accommodation does not constitute subjecting the Claimant or his family to “inhuman or degrading treatment or punishment.”

 

23. One problem which the Claimant faces in this case which the claimant in IB v Birmingham City Council did not is that he does not rely on his own “status” as a disabled person, but rather on the fact that he has disabled children. However, that seems to me also to be an “other status” for the purposes of Article 14.

 

24. The only question is then whether, on the issue of justification, there is any distinction to be drawn between this case and IB v Birmingham City Council. There are some distinctions on the facts. First, in that case the claimant, as a severely disabled person, was treated more favourably by the housing benefit provisions than a person without disability would have been in that (i) he was not excluded from housing benefit altogether, as a non-disabled student would have been and (ii) he was not confined to the single room shared accommodation rate and (iii) he was entitled, in the calculation of his “applicable amount”, to the disability premium, the enhanced disability premium and the severe disability premium.  Secondly, he was in effect claiming to be treated as if there were another occupier of the flat, but without the loss of the severe disability premium, which would be the normal consequence if there were another non-dependant adult living there. It was this, I think, which led Judge Howell to say, in para. 47, that his claim was in effect to “the award of an additional cash benefit outside the rules altogether for which there is in fact no valid “system of reference””. Further, it means that the “legitimate aim” identified by Judge Howell in para. 48 of his decision is not directly in point. He there stated that aim as being

 

“to control the cost of housing benefit and ensure that this form of social assistance is paid out only for its purpose of helping providing people with a home, not for accommodation to be used for other purposes. It applies the objective and in my judgment entirely rational criterion that the accommodation allowances therefore depend on the number of occupiers, as defined, that is residents living in the property as their home; not people temporarily there for other purposes however necessary or commendable.”

 

25. In the present case none of the above factors are present. That is indicated, I think, by the fact that the result which the Claimant desires could be achieved if reg. 13D(3)(c) and (d) each had the following words added at the end: “who are not prevented by the disability of either or both of them from reasonably sharing a bedroom”. In IB v Birmingham City Council a rather more drastic modification of the legislation would have been required.

 

26. However, although Judge Howell, having regard to the facts in his case, emphasised the legitimate aim as being to control expenditure by reference to the number of occupiers, it can in my judgment equally be said that the aim is to control expenditure by reference to the number of occupiers and (where applicable) the ages and sex of children. That plainly in my judgment also constitutes a legitimate aim.

 

27. Further, four of the other essential points on which Judge Howell’s reasoning relies are valid in this case. First, he noted in para. 45 that it is established by the European Court of Human Rights jurisprudence that the state has a wide margin of appreciation in matters of social policy and the allocation of public resources. The significance of disability was clearly given some consideration when reg. 13D was drawn up: severe disability is capable of “upgrading” the claim from the one bedroom shared accommodation rate to the one bedroom self-contained accommodation rate. Secondly, he noted that housing benefit was just one of the benefits awarded by the benefits system, and placed considerable reliance on this in para. 50 of his decision. In the present case the Claimant and his family were in receipt of substantial sums by way of other social security benefits by reason of the daughters’ disability, namely disability living allowance in respect of each of the daughters, premiums added in the calculation of child tax credit, and carer’s allowance. Thirdly, there is the point relating to additional administrative costs which would be likely to be incurred, which is referred to in para. 69 of the citation from the judgment of Elias LJ in the AM (Somalia) case. If additional wording, such as I have referred to in para. 25 above, were added, there would be a need to adjudicate on whether the children could reasonably share a bedroom. Even though the First-tier Tribunal seems to have regarded the answer as clear in this case, there would no doubt be many other cases where it would not be clear. Fourthly, there is the mitigating factor (as there was in IB v Birmingham City Council) of the availability of a discretionary hardship payment.

 

28. However, as regards the second point noted in the previous paragraph, it was not a condition of entitlement to the additional benefits of which the Claimant and his family were in receipt that the daughters’ disabilities should be such as to prevent them from reasonably sharing a room. An attempt could therefore be made to sidestep this particular point by presenting the discrimination as a failure to treat the Claimant differently from how he would have been treated if his daughters had been disabled to an extent which qualified them for DLA and qualified the Claimant’s wife for the additional premiums in child tax credit, but which did not prevent the daughters from reasonably sharing a bedroom. However, although that may take a little of the sting out of the point, it does not detract from the position that housing benefit is just one of the means by which the social security system provided for the Claimant and his family, and that other benefits did make substantial allowance for disability.

 

29. In my view the differences between this case and the Birmingham case are not such as enable me to say that the reasoning in that case does not apply. In my judgment the prima facie discrimination consisting in the failure to treat the Claimant’s case differently, for the purpose of the calculation of the LHA rate, is objectively justified.

 

30. It was noted in para. 51 of the Birmingham case that amending legislation was introduced, with effect from April 2011, whereby there is a special extra room allowance for the severely disabled. No such special provision has been made in relation to children who cannot reasonably share a room. I do not think that I can properly attribute any significance, one way or the other, to that.

 

31. On 3 May 2011 Judge Howell gave permission to appeal to the Court of Appeal against his decision. On balance, I do not consider that I should further postpone giving this decision until that appeal has been decided. As noted above, there are possible distinctions between this case and the Birmingham case, and it seems to me that the preferable course is for me to give my decision, so that the Claimant and his advisers have the opportunity to consider whether they wish to appeal my decision, in which case it might well be sensible for such an appeal to be heard by the Court of Appeal at the same time as that in the Birmingham case. I confirm that I would give permission to appeal, if requested. Alternatively, the Claimant could request an extension of the time for applying for permission to appeal until after the Court of Appeal has decided the Birmingham case. Subject to what the Secretary of State and the Council might have to say in relation to that, I would be minded to grant such an extension. 

 

 

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

5 May 2011