THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
DECISION OF THE UPPER TRIBUNAL JUDGE
The claimant’s appeal is dismissed.
The decision of the Glasgow First-tier Tribunal of 28 January 2014 is confirmed.
REASONS FOR DECISION
1. The claimant is the tenant of a housing association flat which has two bedrooms. He has held that tenancy since 20 November 2006. He is the sole occupant of the flat.
2. On 1 April 2013, Glasgow City Council, hereafter referred to as “the Council” held that the claimant’s weekly housing benefit should be reduced from £81.33 to £70.37. That represented the fourteen per cent reduction prescribed by regulation B13(3)(a) of the Housing Benefit Regulations 2006, inserted into those regulations by amending regulations with effect from that date. By their decision the Council determined that the claimant was under occupying his home in that it had two bedrooms and as the sole occupant he was not entitled to an additional bedroom under any of the provisions of regulation B13.
3. The claimant appealed. The tribunal of 28 January 2014 refused his appeal and confirmed the Council’s decision.
4. District Tribunal Judge Walker refused the claimant permission to appeal. I granted him permission. In doing so I added the Secretary of State as the second respondent.
5. The claimant’s representative lays out grounds of appeal on document 30. She submits that the Council’s decision amounted to indirect discrimination against the claimant as a disabled person under the Equality Act 2010. She also submits that the tribunal did not deal properly with that argument in their Statement of Reasons.
6. In paragraph 4 of document 30 the claimant’s representative asserts that the claimant has various disabilities. That he has those disabilities is fully accepted by the tribunal judge in his findings of fact in paragraphs 7 – 8 of his Statement of Reasons on document 20. He goes on to explain why he made those findings in paragraph 15 of document 21. He then holds in paragraph 16 of document 21 that despite those disabilities the claimant did not “engage with any of the exempt categories” of regulation B13. His determination to that effect is not challenged or disputed on the claimant’s behalf.
7. District Tribunal Judge Walker’s decision refusing the claimant permission to appeal appears as document 24. In that decision she records that she had listened to the CD recording of the tribunal hearing. Having done so she states:
“There was no coherent submission made as to why the under occupancy policy was discriminatory. The representative simply said that the policy was discriminatory against someone with a disability and it was unreasonable to require her client to find alternative accommodation.
8. I accept District Tribunal Judge Walker’s record of what was submitted to the tribunal by the claimant’s representative. Taking the most charitable view, the argument advanced in relation to discrimination was in very general terms and was not the specific contention laid out on document 30 as having been made to the tribunal.
9. The tribunal judge dealt with the argument on discrimination, such as it was, advanced on the claimant’s behalf as follows in paragraphs 17 – 19 of document 21:
“17. The presenting officer submitted that the local authority had no option but to comply with the amended Housing Benefit Regulations and to manage the scheme accordingly. I accept that they have done that.
18. The appellant’s representative submitted that the amended Housing Benefit Regulations are themselves discriminatory as they do not allow a remedy for tenants who are as vulnerable as the appellant in this case. The effect of the regulations is that it either forces him to move to a property which would compromise his health or he remains and is financially penalised and that in a situation where he was actually given this tenancy in the first place as a sole tenant – its not as if he is the last remaining occupant of several who had previously been there.
19. I refused the appeal as I have no discretion in such matters. The respondents have properly applied the amended regulations. The appellant is not within one of the limited exempt categories. There is no basis in law at this time to allow the appeal. However, appeals are proceeding to the upper tribunal and on through the higher courts where it is appropriate that the arguments made on behalf of the appellant are to be further considered. In that regard, I am at least able to identify the facts specific and relevant to this particular appeal and summarise the arguments put forward by both representatives.”
10. Given the very general nature of the submission on the issue of discrimination advanced before him, I hold that the tribunal judge dealt with it adequately in the paragraphs from his Statement of Reasons cited in paragraph 9 above. Accordingly he did not err in law in failing to give that submission sufficient consideration.
11. However that is not the end of the matter so far as this appeal concerned. There remains the question of whether the process of the making and implementing by the government of the policy which is enacted in regulation B13 constituted a breach of the Public Sector Equality Duty created by section 149 of the Equality Act 2010. Disability is a “protected characteristic” under section 149(7) of that Act. It is important to emphasise however that the Public Sector Equality Duty applies to the process I have just described and not to the making of decisions relating to individual claimants under regulation B13 once it had been enacted. The claimant’s representative appears to be under a misapprehension that the Public Sector Equality Duty applies in the latter situation and thus directly to the decision taken by the Council.
12. In MA and Others v Secretary of State for Work and Pensions [2014] EWCA Civ 13, the Court of Appeal in England and Wales held that the process I refer to in paragraph 11 above involved no breach of the Public Sector Equality Duty. See paragraphs 83 – 92 of the Judgement of the Master of the Rolls, Lord Dyson, and paragraph 98 of the Judgement of Lord Justice Longmore in that case.
13. The claimant’s representative does not refer to the Human Rights Act 1998 or any of the articles of the European Convention on Human Rights in her grounds of appeal on document 30 although she makes a general allusion to “discrimination” on document 48 where she responds to the submissions of the Secretary of State on documents 43 – 44. However for the sake of completeness I note that in MA and Others, cited in paragraph 12 above, the Court of Appeal in England and Wales held that the discriminatory effect of the enactment of regulation B13 was justified for the purposes of the European Convention on Human Rights. See paragraphs 39 – 82 of the Judgement of the Master of the Rolls and paragraph 99 of the Judgement of Lord Justice Longmore in that case.
14. Technically, sitting as a judge of the Upper Tribunal in Scotland, I am not bound by a decision of the Court of Appeal in England and Wales. However I should only decline to follow such a decision on a point indistinguishable from one arising before me if it was in my view, “clearly wrong”. See paragraph 13(a) of my decision in RJ v Secretary of State for Work and Pensions [2012] AACR 28. I do not consider that the decision in MA and Others is by any means clearly wrong either in regard to the Public Sector Equality Duty or to discrimination and justification under the European Convention on Human Rights. I thus follow it.
15. The practical effect is therefore that neither the Public Sector Equality Duty nor any question of discrimination under the European Convention on Human Rights avail the claimant. There was no error of law in the Council’s decision arising from either of these matters and thus necessarily there was no error of law in the tribunal’s decision confirming it.
16. The claimant’s appeal is thus dismissed. The tribunal’s decision is confirmed.
(Signed)
A J GAMBLE
Judge of the Upper Tribunal
Date: 22 August 2014