Secretary of State for Work and Pensions v PE & Anor (AAC)

Where housing-benefit size criteria allow an additional bedroom for foster carers but not for approved providers of adult placements, the difference may amount to unjustified discrimination. The relevant comparison concerns the need for the additional bedroom and the statutory distinction drawn between the two classes. A claimant need not rely on disability discrimination where the alleged discrimination instead arises from unequal treatment as compared with foster carers.

Discretionary housing payments do not necessarily supply a reasonable justification where the claimant has an objective need for the bedroom. The tribunal may disapply, rather than quash, an incompatible provision, and only while the claimant is a victim of the incompatibility.

The Secretary of State appealed against a First-tier Tribunal decision made at Bolton on 7 April 2015. The claimant had a three-bedroom home. One bedroom was occupied by her, one by her son, and the third was used when an adult with disabilities was placed with her under an adult placement scheme.

The First-tier Tribunal held that Housing Benefit Regulations 2006, regulation B13, discriminated against the claimant by reducing her eligible rent for the room when it was unoccupied. The Secretary of State contended that the tribunal had misapplied the manifestly-without-reasonable-foundation test, that disability was not a valid basis for the claim, that adult-placement providers were not analogous to foster carers, and that the reasoning in R (Carmichael and Rourke) v Secretary of State for Work and Pensions [2016] UKSC 58 required a different result.

The central issue was whether the First-tier Tribunal had erred in law in finding the differential treatment unjustified.

1. The Secretary of State’s appeal was dismissed. The First-tier Tribunal had made no error of law in holding that regulation B13 was manifestly without reasonable foundation insofar as it reduced housing benefit for an adult-placement provider in the claimant’s position.

2. The First-tier Tribunal had applied the correct manifestly-without-reasonable-foundation test. Its analysis was compelling. The claimant’s case was not founded on discrimination because she was disabled. The relevant discrimination was the difference between her position and that of foster carers, who were expressly allowed an additional room.

3. Differences between fostering and adult placements did not answer that comparison. The distinct statutory regimes were the starting point for the discrimination analysis. Both arrangements could be short-term or longer-term, and the evidence did not establish the asserted general difference relied on by the Secretary of State.

4. The argument based on possible double payment of housing benefit failed on the facts: a placed adult made no payment to the claimant and she was not permitted to sublet. In any event, following Chief Adjudication Officer v Foster [1993] AC 754, the Upper Tribunal could disapply an incompatible regulation but could not quash it. Under section 7(1) of the Human Rights Act 1998, disapplication was available only while the claimant was a victim. It would therefore operate when the room was empty, not while an adult was placed there and receiving housing benefit.

5. Carmichael and Rourke did not govern the case. The Supreme Court’s dismissal of the disability and sanctuary-scheme claims did not determine other forms of discrimination. Moreover, those sanctuary claims concerned a need to remain in particular accommodation for reasons unrelated to bedroom size. Here, the claimant objectively needed the additional bedroom when an adult was placed with her.

6. The judge considered whether the claimant had a relevant status for Article 14 purposes. Although Francis v Secretary of State for Work and Pensions R(IS) 6/06 was binding, it did not determine that issue. No final ruling was required because the Secretary of State had not raised the point.

• Upper Tribunal (Administrative Appeals Chamber): The Secretary of State’s appeal was dismissed. The First-tier Tribunal’s decision was confirmed as involving no error of law.
• First-tier Tribunal: Under reference SC122/14/00710, decided at Bolton on 7 April 2015, it held that regulation B13 of the Housing Benefit Regulations 2006 was discriminatory against the claimant.