IN THE UPPER TRIBUNAL	Case No.CH/466/2011  
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decisions of the tribunal and of the council and I substitute my own decision that the claimant is entitled to housing benefit under regulation 13D of the Housing Benefit Regulations 2006 only at a three bedroom rate, but is entitled to further payments from the council (in addition to any discretionary housing payment or other relevant payment already made) as is necessary to comply with this decision and Article 14 of the European Convention on Human Rights for the period to which this appeal relates.

REASONS FOR DECISION

1.	This is an appeal by the claimant from a decision of the First-Tier Tribunal with the permission of a Judge of the Upper Tribunal.  The claimant lives with her partner and three children and is in receipt of housing benefit.  By virtue of regulation 13D of the Housing Benefit Regulations 2006, on the basis of the age and sex of her children, she was only entitled to housing benefit at the rate for a three bedroom house.  One of her children suffers from autistic spectrum disorder and ADHD and it would be better for everybody for him to have a bedroom of his own.  Housing benefit is awarded, however, on the basis that he should share with his brother.  This has at all times been acknowledged by the council, which has made up the difference between the benefit for a four bedroom house and that for a three bedroom house by was of discretionary grant.

2.	The First-Tier Tribunal dismissed the appeal of the claimant from a decision of the Respondent Council that the claimant was not entitled to the four bedroom rate of benefit, holding that the council was correct in law that it had no discretion to make a four bedroom award and the tribunal had no power or discretion to direct the council to make discretionary payments by way of additional housing benefit.

3.	The claimant applied for permission to appeal and was ultimately granted permission to appeal by an Upper Tribunal judge on 30 May 2013.  This followed the decision of the Secretary of State not to appeal to the Supreme Court against the decision of the Court of Appeal in three cases decided together, the lead case in the report being Burnip v Birmingham City Council, [2012] EWCA Civ 629.  In one of those cases, Gorry v Wiltshire CC, the Court of Appeal had declared in respect of appellants in a similar position to the claimant in the present case that the statutory criteria by which the three bedroom rate had to be applied discriminated against them and that the Secretary of State had failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria.  The precise form of the declaration does not appear from the judgments but I have been able to obtain a copy of the order actually made to which I shall refer in dealing with the question of remedy.

4.	I am unable to detect anything in the decision in Burnip and Gorry which suggests that there is a distinction to be drawn between the severely physically disabled and the severely mentally disabled in applying Article 14.  In paragraph 13 of the decision, Maurice Kay LJ states simply that “Where …a group recognised as being in need of protection against discrimination – the severely disabled – is significantly disadvantaged by the application of ostensibly neutral criteria, discrimination is established, subject to justification.”  In my judgment it is irrelevant whether the need for separate bedrooms arises because of a physical or a mental disability, and that was also the conclusion of a Queen’s Bench Division Court in R (on the application of MA) v Secretary of State and Birmingham City Council, [2013] EWHC 2213 (QB), where the child in question was autistic.  

5.	It is further plain both on the findings of the First-tier Tribunal in this case and the acknowledgement of the council in both its submissions and in its payment of the discretionary grant to enable the claimant’s disabled son to have a separate bedroom that he, and no doubt the rest of the family, have a real need for him to have a separate bedroom.  The council has asked that I should give guidance as to the factors necessary to deem a child suitable to have their own room.  I do not consider that I can give any more guidance than to say that it depends on the needs of that child and the rest of the family.  The basic question is whether it is unreasonable to expect the disabled child and his or her sibling to share a bedroom.  There will be some cases where a severely disabled child can reasonably share a bedroom with a sibling.  There will be other cases, depending on the nature of the disability where it is unreasonable to expect this to happen.

6.	I am satisfied that in the present case, it is unreasonable to expect the two brothers to share a room for reasons which have been clearly appreciated by the council and by the First-tier Tribunal.  The First-tier Tribunal was compelled by the earlier decisions of the Upper Tribunal subsequently overturned by the Court of Appeal in Burnip and Gorry to conclude that the appeal had to be dismissed.  Freed from that constraint and applying Gorry, I have no hesitation in concluding that regulation 13D is discriminatory against the claimant’s son and indeed against families including a disabled child which cannot reasonably be expected to share a bedroom, and that the discrimination cannot be justified.  The council has accepted in its latest submissions that if I come to this conclusion detailed reasons will not be required by it.

7.	That brings me to the question of remedy, a point which plainly troubled Judge Howell in IB v Birmingham CC, [2011] UKUT 23 (AAC), a decision from which the appeal in Burnip was brought – see para.53 of Judge Howell’s decision.  Although the Court of Appeal in Burnip and Gorry stated that it was applying the earlier decision of the Court of Appeal in Francis, it was unclear from the judgments whether any declaration was made that the claimants in the cases before it were entitled to benefit on the extra bedroom basis.

8.	The position was then further confused by the decision of the Divisional Court in R (on the application of MA) v Secretary of State and Birmingham City Council.  Although the decision of the Court of Appeal in Burnip and Gorry had been handed down on 15 May 2012, when the Divisional Court heard MA exactly a year later, and indeed when judgment was given on 30 July 2013, no such regulations had yet been introduced and the Secretary of State was still considering whether and at what point in time to introduce them.  As Laws LJ pointed at paragraph 91 of his judgment “The Secretary of State has no business considering whether to introduce regulations to conform HB provision with the judgment in Gorry.  He is obliged to do so.”  It is now November 2013 and I am told that the regulations are imminent.

9.	Meanwhile the Secretary of State had issued guidance to councils in two circulars, HB/CTB A6/2012 and HB/CTB U2/2013.  These purport to instruct councils to allow an extra bedroom for those who were unable to share because of their severe disabilities.  The Divisional Court held, in relation to these circulars, that departmental circulars were not a lawful vehicle to prescribe the means of calculating the appropriate maximum housing benefit for any class of case (para.90 of the decision).  It went on to provide in para.93, however, that local authorities retain their discretion as to the administration of discretionary housing payments and it was open to them to follow the Secretary of State’s circular but that compliance with Burnip/Gorry is not their legal responsibility.

10.	As I pointed out in a recent direction, dated 27 September 2013, I am unable to understand how this last finding can be compatible with the duties of the council under section 6 of the Human Rights Act 1998.  That section makes it unlawful for the council to act in a way that is incompatible with the claimant’s and her son’s, human rights.  I indicated that it was my inclination to find that it was the duty of the council to act lawfully and in order for it to act lawfully it had to provide housing benefit, if necessary by way of discretionary grant, where not to do so would be contrary to section 6.  I sought the submissions of the parties and the Secretary of State as to what decision I ought to come to bearing in mind the decision in MA.  

11.	The council has simply “supported” the decision in MA, but provides no assistance as to how I should decide this case.  The Secretary of State submits that paragraph 93 of MA does not prevent the council from complying with its duties under section 6 of the Human Rights Act when applying the size criteria.  He further submits that neither circular relied upon the use of discretionary housing payments, but both suggest that the local authority should apply the housing benefit legislation in line with the Court of Appeal decision in Burnip.  This, it is said, is something the council is obliged to do.  Although not expressly stated, this would imply that I should find that the claimant was entitled to housing benefit and set aside the council’s decision to the contrary.

12.	The difficulty with this submission is that the Court of Appeal clearly found that the regulations limited the housing benefit to which the claimant was entitled under the Housing Benefit Regulations.  It did not construe them as entitling those in her position to the additional payment for the extra bedroom.  Further, the finding in MA was that the council retained its discretion in relation to discretionary housing payments, suggesting that it could properly refuse such a grant.

13.	The Court of Appeal in its judgments declined to do more that grant declaratory relief, and left it to the Secretary of State as to how to deal with the rectification of the discrimination in the three cases before it.  In doing so, it stated that it was following the approach in Francis v SSWP, [2006] 1 WLR 3202, where the Court of Appeal had found that the inability of a claimant to obtain a maternity grant under the terms of the regulations then in force amounted to discrimination contrary to article 14 of the Human Rights Convention.  The Court of Appeal in that case found that it was not possible to construe the relevant regulation to include the claimant and simply declared that the claimant was entitled to a maternity grant, leaving it to the Secretary of State to decide how best to reformulate the regulations. 

14.	The confusion as to the appropriate remedy appears to be resolved once one considers the actual relief granted in Burnip and in Gorry and the third case before the Court of Appeal, Trengrove v Walsall.  Paragraph 3 of the order reads as follows:

“The decision in each case is remitted to the First Respondent in each case [i.e. the relevant council] to be remade in accordance with the Court of Appeal’s judgment.  Each Appellant is entitled to have their case reassessed by the First Respondent in each case, and to receive from the First Respondent payment of such further sum (in addition to any discretionary housing payment or other relevant payment already made) as is necessary to comply with this judgment and Article 14 for the period to which the appeal relates.”

15.	It is plain from this order that notwithstanding the wording of the judgments of the Court of Appeal, the actual order did impose an obligation on the relevant councils to make the necessary payments notwithstanding that regulation 13D precluded a full award of housing benefit under the Housing Benefit Regulations.

16.	It is also plain as a result that the Divisional Court in MA was wrong to state that the council only had a discretion to make such payments, being unaware that, despite the wording of the judgments of the court, the Court of Appeal had actually made an order which did impose an immediate obligation on the councils in question to comply with Article 14.  This approach is also supported by Francis.

17.	I therefore approach the question of remedy in the same way as the Court of Appeal.  I am able to substitute my own decision for that of the council in the present case and I do so by remaking the council’s decision so as to determine that the claimant is entitled to be paid a sufficient amount in addition to anything payable under the Housing Benefit Regulations that will result in her and her family not being discriminated against contrary to Article 14.  It is for the council to determine whether there are any further sums due to the claimant for it to comply with Article 14, and if so, to determine how much and to pay them.  It has no discretion in this respect.  Any dispute as to the amounts due will carry a further right of appeal.

(signed on the original)	Michael Mark
				Judge of the Upper Tribunal

				5 November 2013