Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal against the decision of the First-tier Tribunal given at Glasgow on 20 January 2014 is refused.  It is dismissed.

REASONS FOR DECISION

1. The claimant has appealed against the decision of the First-tier Tribunal refusing her housing  benefit appeal and confirming the decision made on 21 February 2013 which is recorded at pages 1 to 4 of the bundle. The grounds of appeal are not related to the substance of the tribunal’s decision which can found in Findings in Fact in paragraph 2(5) of the Statement of Reasons and 4(12) and (13). 

2. Grounds of appeal are related to an assertion that the amended Housing Benefit Regulations referred to in paragraph 3(8) of the Statement of Reasons are discriminatory against the claimant on the grounds of her disability in terms of the Equality Act 2010. 

3. In the response to the grounds of appeal the first respondents, City of Glasgow Council, submit:

“The Authority has not, within its decision, advised [the claimant] that she has to move house.  The effect of the decision is to reduce Housing Benefit and it would be pessimistic and premature to make the assumption that this could only lead to a requirement to move house.

This is particularly so as [the claimant] has been awarded a Discretionary Housing Payment from 1 April 2013.  This award currently runs until 6 April 2015 and matches the Under Occupancy reduction.  The Authority is meeting the appellant’s rent costs in full.

The issue of the Housing Benefit Size Criteria amendments discriminating on the grounds of disability have been addressed in MA Case – Court of Appeal [2014] EWCA Civ 13.  The Judges concluded that there was no unlawful discrimination in similar circumstances.

It cannot be said that the judge erred in law in not taking it upon himself to conclude some unspecified form of discrimination he was not specifically addressed upon was apparent.  In any event it is not clear given the decision in MA that the regulations would be held to be discriminatory in the circumstances.”

4. The Secretary of State who is the second respondent submitted on the substance of the grounds of appeal:

“5. As the First-tier Tribunal noted, when considering an application for permission to appeal, the Appellant’s grounds of appeal are not clear.  The Secretary of state does not understand the Appellant’s arguments in relation to discrimination under the Equality Act 2010.

R (on the application of MA & Others)[1] & R (on the application of Rutherford) v SSWP[2]

6. Although, due to the lack of clarity in the Appellant’s papers, the SWPP is not in position to respond to specific arguments, the Upper Tribunal may find the cases of MA and Rutherford of assistance.

7. Both cases dealt with arguments in relation to whether regulation B13 of the Housing Benefit Regulations 2006 indirectly discriminate against disabled people.  MA also considered whether the SWPP had breached the public sector equality duty.

8. In those cases it was held that regulation B13 does not unlawfully discriminate against disabled people and the same reasoning applies here.”

5. The claimant has through her representatives submitted:

“The Secretary of State has stated in submissions that the appellant’s grounds of appeal at the First-tier Tribunal were not clear. The appellant was not provided with an opportunity to make full submissions as to the reasons that the Housing Benefit Regulations 2006, as amended, unlawfully discriminate against the appellant as a disabled person as the First-tier Tribunal stated, upon raising the issue of the ground of appeal, that the issue of discrimination was for a higher court to determine. The appellant was therefore not able to make full submissions.

Glasgow City Council has stated in submissions that the appellant has been awarded Discretionary Housing Payments.  The award of Discretionary Housing Payments is not automatic.  The appellant required to apply to Glasgow City Council for these payments.  The appellant was initially unaware that he was entitled to make an application and did not do so until 13 May 2014.  In any event, the provision of Discretionary Housing Payments does not therefore deem the Housing Benefit Regulations 2006, as amended, do not unlawfully discriminate against disable persons.”

6. I am not persuaded that the claimant has demonstrated any error in law on the part of the tribunal.  The Secretary of State in his submission makes references to two cases and in paragraph 8 submits that they decided that the regulation in issue in this appeal does not unlawfully discriminate against disabled people.  The claimant makes no submission contradicting the Secretary of State’s submission in this regard.  All that is said in the response to the Secretary of State’s submission was that the claimant was not able to make full submissions on the point.  It is apparent from MA that the Court of Appeal determined that the Department were not in breach of the Public House Equality duty under the Equality Act 2010.  I refer in that regard to what is said by the Master of the Rolls at paragraph 92 and Lord Justice Longmore at paragraph 97.  In these circumstances I can see no error in law in the conclusion reached by the tribunal at paragraph 4(15) of their statement.  Further and in any event, no attempt is made by the claimant to set out in the event that his submission was correct in respect of discrimination what the tribunal or the Upper Tribunal could do in that regard. A case would require to be made that the Upper Tribunal could disapply the regulations and that argument is not made.  The claimant is represented by a responsible representative it is incumbent upon the representative to set out clearly the remedy that is sought.  It should also be noted the claimant’s point is academic in respect that she has been awarded a discretionary housing payment by the first respondents.  The ability to make an application for such was something that she was made aware of at page 3 of the decision appealed against to the First-tier Tribunal.  The claimant has accordingly a remedy by another route.

(Signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 28 August 2014