Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The appeal by the Secretary of State is allowed.

The decision of the Glasgow First-tier Tribunal of 15 April 2014 is set aside.

That decision is remade as follows: The decision of Glasgow City Council of 1 April 2013 is confirmed. 

REASONS  FOR  DECISION

1. The claimant is a forty one year old woman who has various serious disabilities.  She lives alone in a three bedroom property which she rents from a housing association.

 2. On 1 April 2013 Glasgow City Council, hereafter referred to “the Council”, decided that the claimant’s weekly entitlement to housing benefit fell to be reduced by 14% under regulation B13 of the Housing Benefit Regulations 2006 as they had been amended from that date. In taking that decision the Council took the view that the claimant was under occupying the bedrooms in her home in that she was only entitled to two bedrooms, one under regulation B13(5)(b) for herself and another under regulation B13(6)(a) because she required overnight care and thus to a total of two under regulation B13(7)(a). 

3. The claimant appealed. The Council reconsidered its decision on 20 December 2013 but left it unaltered.

4. On 6 January 2014 the Council awarded the claimant a discretionary housing payment of exactly the same amount as the reduction in her housing benefit for the period between 1 April 2013 and 24 March 2014.  Under paragraph 6(9)(b) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 the First-tier Tribunal were precluded from taking account of that award as it postdated 1 April 2013, the date of the Council’s decision.  In paragraph 2 of her statement of reasons in document 37 the tribunal judge who constituted the First-tier Tribunal appropriately records the claimant’s award of a discretionary housing payment.  However, correctly, she takes no further account of that payment in the remainder of her Statement of Reasons. 

5. The claimant’s appeal proceeded to a hearing on 15 April 2014.  The tribunal’s decision is recorded on their decision notice, document 35, as follows:

“1. The Housing Benefit appeal is allowed.

2. The decision made on 01/04/2013 is set aside.

3. On the basis of the additional evidence presented at the hearing, the Tribunal is satisfied that the third “bedroom” in the property is used as an effective extension of the appellant’s own bedroom.  This is because the size of the appellant’s bedroom has been significantly reduced due to the fact that a double bed was required on medical grounds due to the appellant’s epilepsy.  As a result there is insufficient space for the appellant to get dressed and in particular to put on her leg brace without setting off the alarm that is in place on the bed.  The additional “bedroom” is also used to store medication and medical notes in a locked cabinet.  In all the circumstances there is no under occupancy of this property as a result of the appellant’s significant health problems which are both of a physical and mental health nature.”

6. The Secretary of State now appeals with the permission of Upper Tribunal Judge Agnew QC, permission to appeal having been refused by District Tribunal Judge Dunn.

7. Although the tribunal judge does not mention the European Convention on Human Rights or the Human Rights Act 1998 in her decision notice, cited in paragraph 5 above, it is clear from paragraph 11 of her Statement of Reasons on documents 38 – 39 that the legal basis for her decision in the claimant’s favour was her view of the applicability of Article 14 of that Convention to the appeal.  She expresses herself thus in paragraph 11:

“Thereafter, the Tribunal concluded that the application of the Maximum Rent (Social Sector) provisions to the Appellant was incompatible with the terms of Article 14 of the European Convention of Human Rights which protects against discrimination on grounds such as disability.  No justification for this discrimination was produced by the Respondent either in the documentary submission or in oral submissions to the hearing and the Tribunal concluded that no justification could be produced in the particular circumstance of the Appellant.  Accordingly, the Tribunal concluded that the Property was not under occupied on any basis and the appeal thus succeeded, the Appellant having been found not to be subject to a 14% reduction in her entitlement to Housing Benefit.”

8. The reasoning in paragraph 11 of the Statement of Reasons, cited in paragraph 7 above, indicates that the making of the tribunal’s decision involved the making of an error on a point of law under section 12(1) of the Tribunals, Courts and Enforcement Act 2007.  I accept the submission of the Secretary of State to that effect in paragraphs 7 – 10 of documents 53 – 54. 

9. More especially the tribunal in allowing the appeal on the basis on which it did fell into the following interconnected errors of law:

(a) Article 14 of the European Convention on Human Rights is not a stand alone provision.  It only applies to discrimination in respect of “the rights and freedoms set forth in this Convention” i.e. the European Convention on Human Rights.  The tribunal judge makes no reference to any other provision of the Convention in paragraph 11 of her Statement of Reasons.  Presumably she was relying on Article 14 read along with Article 1 of the First Protocol to the European Convention on Human Rights regarding the Protection of Property but she does not say so.

(b) The tribunal judge “concluded that no justification could be produced in the particular circumstances of the appellant” for the discrimination against her as a disabled person by the application of regulation B13.  However she gives no indication of what legal test she used to reach that conclusion. In particular, she does not apply the correct test for justification of discrimination in a case relating to the payment of state benefits.  In such a case the applicable test is that of manifestly without a reasonable foundation.  That was authoritatively established by the decision of the Supreme Court in Humphreys v Revenue and Customs Commissioners [2012] 1 WLR 1548. 

(c) The tribunal judge in her statement of reasons overlooks and does not follow the decision of the Court of Appeal in R(MA and Others) v Secretary of State for Work and Pensions [2014] PTSR 584.  In that case it was held, applying the manifestly without reasonable foundation test, that the discrimination against disabled people involved in regulation B13 was justified for the purpose of Article 14 read along with Article 1 of the First Protocol.  That view was taken by the Court of Appeal once the totality of the legislative provisions to deal with under occupancy, including the availability of discretionary housing payments, was taken into account along with the degree of scrutiny that those provisions had received in parliament before their enactment. 

10. In deciding this appeal, I follow MA.  As a decision of the Court of Appeal in England and Wales it is not technically binding on me when sitting as a judge of the Upper Tribunal deciding a case arising in Scotland.  However, in that role, I would ordinarily expect to follow a decision of the Court of Appeal if it was on a point indistinguishable from the one arising before me, as is the case here.  I consider that that applies both to cases such as MA where the Court of Appeal reached a decision on a judicial review application and also to decisions of that court under sections 13 – 14 of the Tribunals, Courts and Enforcement Act 2007.  I would only decline to follow decisions of the Court of Appeal in two circumstances: if, in my view, they were clearly wrong or if they related to a point of law peculiar to England and Wales.  Neither of those exceptions arises in this appeal.  In particular, I am not satisfied that the decision in MA is clearly wrong.

11. I exercise my discretion in the Secretary of State’s favour and set the tribunal’s decision aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 on the basis of the errors of law identified in paragraphs 8 – 9 above.  I consider it appropriate under section 12(2)(b)(ii) of the above Act to remake the tribunal’s decision by substituting for it my own confirming the Council’s decision of 1 April 2013.

(Signed)

A J GAMBLE

Judge of the Upper Tribunal

Date: 5 September 2014