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Ground 2A: differences in Housing Benefit and UC rules and Article 14 ECHR
Ground 2A: differences in Housing Benefit and UC rules and Article 14 ECHR
The Appellant seeks to raise a new ground of appeal, namely that regulation 11(1)(b) constitutes unlawful direct discrimination contrary to Article14 read with A1P1 as between certain housing benefit claimants and UC claimants.
There is no good reason why this Ground could not have been brought at an earlier stage. It arises by comparison of the relevant legislative provisions in the UC regulations and those governing housing benefit. The Ground is advanced after the Secretary of State has served her evidence. If it is to be advanced, she should be afforded the chance to put in evidence in reply, explaining the differences of approach and the reason for them. To do so at this late stage would require an adjournment. That would not be in accordance with the overriding objective (in particular, having regard to the delay in hearing this appeal which has already occurred). For these reasons, the Secretary of State invites the Upper Tribunal to refuse permission to amend to include this Ground.
For the avoidance of doubt, she submits that amendment to include this Ground should in any event be refused because it has no reasonable prospect of success. Differences of treatment between (a) UC claimants and (b) housing benefit claimants who are pensioners or in supported housing/temporary accommodation do not give rise to a legitimate claim for discrimination. It is not appropriate to seek to draw a comparison between legacy and UC benefit regimes and argue that differences give rise to discrimination under Article14: see RJ v HMRC [2021] UKUT 40 (AAC) at [106]. That case cannot be distinguished: although housing and UC continue to exist side-by-side, UC is ultimately a replacement scheme for housing benefit. The same was true for the benefits in issue in RJ. In any event, any difference of treatment is a function of the different bases on which the rules governing the two benefits operate and cannot be impugned as manifestly without reasonable foundation: compare R (TP) v Secretary of State for Work and Pensions [2018] EWHC 1474 at [68]. The submissions on remedy are repeated.
- Heading
- Section 1
- The Statutory Framework
- The Background Facts
- The Decision of the Tribunal
- Ground 1: The Tribunal erred in its treatment of regulation 11(3)(a)(i) of the 2013 Regulations in requiring the need for medical treatment to predate a claimant’s departure from Great Britain
- Ground 1: Interpretation of the 2013 Regulations
- The absence is in connection with the death of a close family member and The Secretary of State considers it unreasonable to expect the claimant to return within one month
- A claimant who does fall within those paragraphs will have retain entitlement in assessment period 2
- The Secretary of State (or the Tribunal) may extend time by up to a further month
- Ground 2: Interference with Convention rights
- Status
- Difference in treatment
- Justification
- This is likely to be a relatively small cohort These are not concerns unique to a need for treatment postdating a claimant’s departure from Great Britain. Decision makers already need to make evaluative judgements on issues of intention to return
- Remedy
- Ground 2A: Discrimination with respect to housing benefit claimants
- Justification
- Why the Upper Tribunal is invited to grant permission: factors other than merits
- Ground 3: the Secretary of State’s concession as to the amount of overpayment
- Ground 3: assessment period beginning 24 February 2023 . The Secretary of State invited the Upper Tribunal to the appeal in part on an additional ground not raised by the Appellant. The Appellant’s ab
- Ground 1: even if the Appellant’s absence from 30 March 2023 to 23 April 2023 was solely in connection with qualifying treatment, that absence cannot be disregarded under regulation 11(3)(a)(i). The n
- Ground 2: the Appellant alleges that the one month rule in regulation 11(1)(b) discriminates indirectly against him Appellant as a disabled person in breach of Article 14 read with A1P1. There is insu
- Temporary absence
- qualifying convalescence: regulation 11(3)(a)(i) and (ii)
- Submissions Regulation 11(1)(b): assessment period beginning 24 February 2023
- Ground 1: interpretation of regulation 11(3)(a)(i)
- Ground 2: regulation 11(1)(b) and Article 14 ECHR
- No evidential basis for finding of indirect discrimination
- Justification
- A rule of this kind would necessarily expand the cohort of claimants who may retain
- Remedy
- Ground 2A: differences in Housing Benefit and UC rules and Article 14 ECHR
- Conclusion
- The Appellant and his wife were not entitled to UC from 24 March 2023 to 23 April 2023
- Analysis
- Ground 2A
- Ground 1
- Ground 2
- Justification
- Remedy
- Conclusions