GW v Dumfries and Galloway Council & Anor [2025] UKUT 354 (AAC)

Appeal No. UA-2024-SCO-000026-HBIN THE UPPER TRIBUNAL NCN [2025] UKUT 354 (AAC).ADMINISTRATIVE APPEALS CHAMBER
Between
GWAppellant- v –
Between
Dumfries and Galloway CouncilRespondentSecretary of State for Work and PensionsRespondentBefore: Upper Tribunal Judge WrightDecided on the papersOn appeal from:Tribunal: First-tier Tribunal (Social Entitlement Chamber)Tribunal Case No: SC942/19/00469Tribunal Venue: AyrDecision Date: 15 August 2023SUMMARY OF DECISIONThis case is about whether the changes to the regulations 2(1) and 13D(3)(za) of the Housing Benefit Regulations 2006, in respect of “members of a couple who cannot share a bedroom”, brought in after the Supreme Court’s decision in R(Carmichael) v SSWP [2016] UKSC 58, discriminated against a claimant who could not meet the statutory test on human rights grounds.The key part of the definition of “member of a couple who cannot share a bedroom” that the claimant did not meet was the need to be in receipt of a specified disability benefit (in his case the highest or middle rate of the care component of Disability Living Allowance), as he had been refused an award of that part of DLA and had not sought to reclaim it.The FTT dismissed the claimant’s appeal. His further appeal to the Upper Tribunal was also dismissed for two reasons. First, because there was no difference in treatment based on the personal characteristic of disability. The difference between the appellant and someone with similar disabilities to him, but who was receiving the relevant care component of DLA, was not based on the appellant’s and the comparator’s disabilities but was because of the appellant’s choice not reclaim the care component of DLA. Claiming or not claiming DLA was not a form of “other status” under Article 14 of the ECHR as that would be to define the status solely by reference to the difference in treatment complained of. As such, justification did not arise. Second, if justification was in issue, the requirement to be in receipt of a specified disability benefit found in regulation 2(1)(a) of the HB Regs had objective and reasonable justification given what Carmichael had held was needed.KEYWORD NAME (Keyword Number) HOUSING AND COUNCIL TAX BENEFITS (16); RENT RESTRICTIONS (16.8); HUMAN RIGHTS LAW (17); ARTICLE 14 (NON-DISCRIMINATION) (17.9)Please note the Summary of Decision is included for convenience of readers. It does not form part of the decision. The Decision and Reasons of the judges follow.DECISIONDate 2025-10-16
[1]This appeal is fundamentally about whether the Housing Benefit Regulations 2006 (“the HB Regs”) unlawfully discriminated against the appellant under the Human Rights Act 1998 (”the HRA”) and Article 14 of the European Convention on Human Rights (“the ECHR”) by providing that his entitlement to housing benefit could not extend to a second bedroom.[2]It is also about whether the First-tier Tribunal materially erred in law in deciding that the material provisions of the Housing Benefit Regulations 2006, and “the definitional requirements of a “member of couple who cannot share a bedroom” found in regulation 2(1) of those regulations, did not unfairly discriminate against the appellant.

The First-tier Tribunal proceedings

[3]Most of the necessary relevant background is sufficiently described in the First-tier Tribunal (“the FTT”) proceedings and related documents.[4]The appellant was in receipt of income-related employment and support allowance at the time of the decision under appeal to the FTT. In addition, at the material time the appellant was also in receipt of the higher rate of the mobility component (“hrmc”) of Disability Living Allowance (“DLA”). He had been entitled to that hrmc award for an indefinite period from 12 November 2007. Materially, the appellant had applied for but had been found not to be entitled to any rate of the care component of DLA.[5]The appellant’s landlord increased the appellant’s rent with effect from 1 October 2019 to £4,800 per annum, which equates to a weekly rent of £92.31. Before that increase the housing benefit awarded to the appellant covered his rent in full. However, after the increase his maximum rent was assessed for housing benefit purposes under the local housing allowance rules at £86.54 per week.[6]The decision under appeal to the FTT was one made by Dumfries and Galloway Council, as the relevant housing benefit authority, on 5 September 2019. That decision, however, related to the increase in the appellant’s rent from 1 October 2019. The material part of the 5 September 2019 decision was that the appellant’s entitlement to housing benefit was to be assessed on the basis that he and his wife only needed one bedroom.[7]It was this decision which the FTT upheld when it dismissed the appellant’s appeal on 15 August 2023.[8]The relevant parts of the FTT’s reasoning as set out in its Decision Notice of 15 August 2023 read as follows:
“4. [The appellant] argues that by reason of his disabilities he is unable to share a bedroom with his partner and as a consequence he should be entitled to housing benefit for a second bedroom. 5. The [Council] accepts that [the appellant] is unable to share a bedroom with his partner but he is not entitled to housing benefit for a second bedroom as he does not meet the definition of a member of a couple who cannot share a bedroom as set out in regulation 2 of the [HB Regs]. That is because he is not in receipt of any of the specified qualifying benefits. 6. [The appellant’s] secondary argument is that given the [Council’s] acceptance of his disabilities he is directly discriminated against as a disabled person by the terms of regulation 2….. Findings in fact 12. The [Council] accepts that the appellant is unable to share a room with his wife (page 78). 13. [The appellant] was previously entitled to disability living allowance at the higher rate of the mobility component only from 12/11/2007. At the date of the decision under appeal he was not entitled to any of the disability benefits specified in regulation 2 [of the HB Regs]. Reasons 14. The test to be applied by this tribunal in relation to justification in cases involving discrimination in state benefits is to be found in the Grand Chamber’s decision in Stec v Unitec Kingdom (2006) 43 EHRR 1017 which held that a difference in treatment is discriminatory if it has no objective and reasonable justification. 15. [The appellant did] not argue that the government’s objective of paying an enhanced amount of housing benefit only to claimants with significant and material disabilities is unjustified. Nor does he argue that trivial or minor disabilities necessarily mean that a disabled claimant cannot share a bedroom with his or her partner. To that extent he accepts that treating disabled claimants with serious and material disabilities differently from those who have minor or trivial disabilities is objectively justifiable. His argument is more narrowly focused on the terms of the Reg 2 definition which he argues unfairly discriminates against claimants with serious disabilities who are not entitled to a disability benefit. 16. A housing benefit claimant with a significant and material disability may be unable to share a bedroom with his or her partner and a scheme is necessary to identify those who fall into this category, so that additional benefit, reflective of their needs, can be made available to them. A disabled person who meets the eligibility criteria of any of the range of disability benefits specified in the regulation 2 definition is likely to have a significant and material disability and linking disability enhancements of housing benefit to entitlement to a specific disability benefit is a reasonable, proportionate and objectively justifiable way of identifying housing benefit claimants who have additional disability needs. 17. Not every person with a disability who meets the eligibility criteria of the listed benefits will be unable to share a bedroom with his or her partner. For example, a claimant who qualifies for PIP because he/she requires supervision and prompting from their partner with some of the ordinary activities of daily life is not likely to be unable to share a bedroom with that same partner. Part b of the regulation 2 definition is a mechanism requiring a local authority to consider he nature and extent of the claimant’s disabilities in the context of sharing a bedroom. It is not a substitute test of disability for those who do not have a qualifying benefit. 18. [The appellant] has a range of health conditions which may give rise to significant disability. Indeed, the respondent accepts that his medical conditions are such that he is unbale to share a bedroom with his wife. The functional impact of the disabilities arising from his diagnosed condition has, however, not been assessed. The available medical evidence only describes [the appellant’s] diagnosed conditions with little or no detail of the disability/disabilities arising and the functional impact of those disabilities on daily life. These are maters specifically tested to meet the conditions of entitlement of the specified benefits and the GOP letter…., while evidentially useful is not, of itself, determinative of the nature and extent of the appellant’s disabilities. 19. Assessment of [the appellant’s] disabilities is the key to this appeal. No UK disability benefit is awarded without independent assessment of the claimant’s disabilities. The government has decided that disability in relation housing benefit should be assessed via the range of specified disability benefits, not by assessment by local authorities and not by requiring claimants to produce, at their own expense, medical evidence to support their claim. That process applies to all claimants with disabilities, no matter their nature or extent of the disability. It is objectively justifiable and does not unfairly discriminate against [the appellant] as a disabled person or otherwise offend against his human rights. 20. [The appellant’s] argument that he is being unfairly discriminated against as a disabled person does not bear scrutiny. He has disabilities and the respondent accepts that. If an issue of discrimination arises it relates not to disability but to his status as someone who might be entitled to disability benefit but has not made a claim. If that is the case, then there can be no assault upon his human rights as there is no barrier to him making a claim.”
Findings in fact

Reasons

[9]In its later reasons for decision the FTT added materially to the above reasons in the following terms:
“10. [The appellant] argues he should not be compelled to apply for a disability benefit as a gateway to claiming housing benefit and part (a) of regulation 2 is directly discriminatory because the [Council] accepts he meets part (b). The definition and its application in regulations discriminates against him as a person with disabilities who has chosen not to apply for a disability benefit and the discrimination is not justified…. 15. The tribunal rejects [the appellant’s] primary argument. To meet the definition of ‘member of a couple who cannot share a bedroom’ [the appellant] has to meet both parts (a) and (b) [in regulation 2 of the HB Regs]. The component parts of the further test are inclusive and are not severable. [The appellant] accepts that he does not have entitlement to any of the qualifying benefits and the tribunal holds that as a consequence he cannot meet the description of being a member of a couple who cannot share a bedroom….”
[10]The FTT itself gave the appellant permission to appeal against its decision, on 6 February 2024, on the basis that he had been unfairly discriminated against by the application of the HB Regs.

The Upper Tribunal proceedings

[11]The appellant’s written grounds of appeal argue, in summary, that the FTT failed to take his rights under articles 8 and 14 of the ECHR into consideration, the FTT had failed to apply comparators of others with similar disabilities, it had failed to take his disabilities seriously and the FTT had erred in law in not disapplying regulation 2(1)(a) of the HB Regs. The appellant further argued that his case was not based solely on claimants with serious disabilities who were not in receipt of specified disability benefits but was also about those who do not wish to claim those disability benefits.[12]The Secretary of State for Work and Pensions was joined as a second respondent to the Upper Tribunal appeal on 19 July 2024, and filed detailed submissions opposing the appeal on 9 October 2024. Those submissions were updated and to an extent amended by way of a further submission made on behalf of the Secretary of State on 16 July 2025. The further submissions rightly resiled from the request made in the 9 October 2024 submission that the appellant pay the Secretary of State’s reasonable expenses of the appeal if the appeal was to be dismissed. Such a request ought never to have been made: see rule 10(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 and paragraphs [22]-[28] of AM v SSWP (JSA, IS and HB) [2019] UKUT 361 (AAC); [2020] AACR 17.[13]The further submissions were made by the Secretary of State following my directions of 23 June 2025. Prior to this date the appeal had been due to be decided following a remote oral hearing on 16 July 2025. However the appellant, who had originally sought the oral hearing, became unable to attend it (for reasons which I do not need to set out), and in my directions of 23 June 2025 I sought the views of the two respondent about deciding the appeal instead on the written arguments. Both respondents agreed with deciding the appeal on the papers. The 23 June 2025 directions provided that in that circumstance the parties would have until 16 July 2025 to make any further written submissions on the appeal.[14]The appellant also made his further written submissions by 16 July 2025. He has in addition made a number of further applications, some of which were made after the 16 July cut-off date. I will address these as necessary below.[15]I think it is probably not unfair to say that Dumfries and Galloway Council (“the Council”) has allowed the Secretary of State to take the lead on the arguments opposing the appellant’s appeal.[16]The Council did not file any further submissions by 16 July 2025. What it did do, by an email of 8 July 2025, was to inform the Upper Tribunal of a change of circumstances that affected the appellant in terms of his eligibility for housing benefit with effect from 25 June 2025. That information is not relevant as it would not have been relevant to the FTT’s decision about what the correct entitlement decision should have been on 5 September 2019: see paragraph 6(9)(b) in Schedule 7 to the Child Support, Pensions and Social Security Act 2000.

Relevant law

[17]The foundation for entitlement to housing benefit is section 130 of the Social Security Contributions and Benefits Act 1992, which provides so far as is material as follows :
“Housing benefit. 130.-(1) A person is entitled to housing benefit if— (a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home; (b) there is an appropriate maximum housing benefit in his case; and (c). either— (i). he has no income or his income does not exceed the applicable amount; or (ii) his income exceeds that amount, but only by so much that there is an amount remaining if the deduction for which subsection (3)(b) below provides is made. (2) In subsection (1) above “payments in respect of a dwelling” means such payments as may be prescribed…..”
[18]Regulation 2(1) of the HB Regs stated relevantly at the material time (in 2019) that: “Interpretation “2.-(1) In these Regulations- “member of a couple who cannot share a bedroom” means a member of a couple—(a) who is in receipt of— (i) attendance allowance at the higher rate in accordance with section 65(3) of the [Social Security Contributions and Benefits Act 1992]; (ii) the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the [Social Security Contributions and Benefits Act 1992]; (iii) the daily living component of personal independence payment in accordance with section 78 of the [Welfare Reform Act 2012 Act]; or (iv) armed forces independence payment; and(b) whom the relevant authority is satisfied is, by virtue of his or her disability, not reasonably able to share a bedroom with the other member of the couple” (I have underlined the word “and” to emphasise that to satisfy the definition of being the member of such a couple the appellant not only had not reasonably to be able to share a bedroom with his wife but had also to be in receipt of one of the specified benefits.) (i) attendance allowance at the higher rate in accordance with section 65(3) of the [Social Security Contributions and Benefits Act 1992]; (ii) the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the [Social Security Contributions and Benefits Act 1992]; (iii) the daily living component of personal independence payment in accordance with section 78 of the [Welfare Reform Act 2012 Act]; or (iv) armed forces independence payment; and[19]This definition of a ‘member of a couple who cannot share a bedroom’ was added into the HB Regs by regulation 4(2)(a) of the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 with effect from 1 April 2017. As the Explanatory Note to those 2017 Regulations set out, the definition was added in to the HB Regs to give effect to the judgment of the Supreme Court in R(Carmichael and Rourke) (formerly known as MA and others) v Secretary of State for Work and Pensions and R (Rutherford and another) v Secretary of State for Work and Pensions [2016] UKSC 58; [2016] 1 WLR 4550.[20]The Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 also, by regulation 4(4)(a)(i), changed regulation 13D of the HB Regs, and for the same reason. At the relevant time in 2019 regulation 13D provided, as amended and insofar as relevant, as follows:
“Determination of a maximum rent (LHA) 13D.—(1) Subject to paragraph (3) to (11), the maximum rent (LHA) shall be the local housing allowance determined by the rent officer by virtue of article 4B(2A) or (4) of the Rent Officers Order which is applicable to— (a) the broad rental market area in which the dwelling to which the claim or award of housing benefit relates is situated at the relevant date; and (b) the category of dwelling which applies at the relevant date in accordance with paragraph (2). (2) The category of dwelling which applies is…… ….. (c) in any other case, the category which corresponds with the number of bedrooms to which the claimant is entitled in accordance with paragraphs (3) to (3B) up to a maximum of four bedrooms. (3) The claimant shall be entitled to one bedroom for each of the following categories of occupier (and each occupier shall come within the first category only which applies to him)— (za) a member of a couple who cannot share a bedroom….”
[21]The statutory effect of the amended versions of regulation 2(1) and 13D of the HB Regs was (and is) thus, that to be assessed for housing benefit purposes on the basis of having two bedrooms instead of just one bedroom, the appellant had to meet the definition, under regulation 2(1) of the HB Regs, of being a ‘member of a couple who cannot share a bedroom’. It is these regulations which are in issue in the appellant’s case.[22]It is not disputed that the appellant (and his wife) at the material time was not in receipt of one of the benefits specified in part (a) of the definition of a ‘member of a couple who cannot share a bedroom’. (Indeed the appellant’s case is positively based on this being the case.) Accordingly, the sole issue on this appeal is whether having to meet that ‘receipt of a specified benefit’ criterion unjustifiably discriminated against the appellant as a matter of human rights law.[23]Although regulations 2(1) and 13D of the HB Regs were amended following the Supreme Court’s decision in Carmichael, it is important to understand that these amendments went wider than those strictly required by the particular legislation in issue in Carmichael. What was in issue in Carmichael was regulation B13 of the HB Regs, which was (and is) concerned with determining the maximum rent in the social sector. Broady speaking, the “social sector” covers rents for tenants of local authorities and registered housing associations. By contrast, regulation 13D is concerned with determining the maximum rent in local housing allowance (LHA) cases: see regulation 11(1) of the HB Regs in general for the “social sector” and “LHA” (and other) classifications and distinctions.[24]There can be no dispute that the appellant’s case falls under the LHA rules and regulation 13D of the HB Regs Very late in the day and well outside the time for making submissions on the appeal, the appellant by an email of 13 October 2025 has sought to argue that his status as a private tenant meant that regulations 2(1)(a) and 13D of the HB Regs did not apply to him. Even ignoring the lateness of this submission and it being about evidence, there is nothing in this argument. The LHA rules in regulation 13D of the HB Regs apply (and applied at the material time) to private tenants, as did regulation 2(1)(a) of the HB Regs. . However, this does not make Carmichael irrelevant, as the appellant has latterly sought to contend, as (a) Carmichael was about a person who could not share a bedroom with their partner due to their disability, and (ii) in response to Carmichaelboth the ‘social sector’ rules and the ‘LHA’ rules in the HB Regs were amended. Thus as well as regulation 2(1) being amended to provide the definition of “a member of a couple who cannot share bedroom” for application potentially across the HB Regs as a whole, regulation B13 of the HB Regs was also amended with effect from 1 April 2017 to allow the determination of the maximum rent (social sector) to be based, per regulation B13(5)(za), on a claimant’s entitlement to one bedroom each where there is “a member of a couple who cannot share a bedroom”. Both the extension of the social sector rules in regulation B13(5)(za) and the LHA rules in regulation 13D(3)(za) are thus rooted in claimants satisfying the definition of ‘a member of a couple who cannot share a bedroom’ in regulation 2(1) of the HB Regs.[25]Given this legislative history and Carmichael’s place in it, it is worth setting out more of the Supreme Court’s decision in Carmichael. The relevant passages from Carmichael read as follows. I have underlined parts of the Supreme Court’s reasoning to show that(i) the Supreme Court was well aware of the similarity between regulations B13 and 13D of the HB regs, and(ii) following Gorry, the Supreme Court recognised that only a limited exception to the HB Regs was required to make them human rights compliant. “16. The evolution of Reg B13 is described in detail in the judgments given in the case of MA and others by the Divisional Court (paras 20 to 33) and the Court of Appeal (paras 15 to 36). Paragraphs 20 to 33 of the judgment of Laws LJ in the Divisional Court are reproduced at appendix 2 to this judgment. In summary, as part of its policy for curbing public expenditure the government aimed to ensure that social sector tenants of working age who were occupying premises with more bedrooms than they required should, wherever possible, move into smaller accommodation. It was recognised at an early stage that a policy based purely on numbers of rooms and occupants would cause problems for some with disabilities, and there was a debate within government and Parliament about how such problems should be addressed. The government initially decided that, rather than creating general exceptions for persons with disabilities (or certain categories of persons with disabilities), their needs should be met as necessary through a scheme of discretionary housing payments based on individual assessments…. 19. Parts of Reg B13 in its current form owe their origin to the decision of the Court of Appeal in Burnip v Birmingham City Council [2012] EWCA Civ 629; [2013] PTSR 117. This arose from a provision in Reg 13D(3) of the Housing Benefit Regulations 2006 (introduced by regulation 7 of the Housing Benefit (Local Housing Allowance and Information Sharing) Amendment Regulations 2007 (SI 2007/2868) and amended by regulation 2(6) of the Housing Benefit (Amendment) Regulations 2010 (SI 2010/2835) which came into force on 1 April 2011), in similar terms to Reg B13(5). The court heard appeals in three cases. In Burnip and a second case the claimants were adults with disabilities who required the presence of a carer throughout the night. By the time that the matter reached the Court of Appeal, there had been a legislative amendment which met those cases (by allowing an additional bedroom where the claimant or claimant’s partner required overnight care). The third case, Gorry v Wiltshire County Council, concerned a family including two children of the same sex who suffered from severe disabilities which made it inappropriate for them to share a bedroom. 20. The court held that in each case there had been discrimination under article 14, because Reg B13 had a disparate adverse impact on persons with disabilities, and that the discrimination had not been justified. The court recognised that DHPs had a valuable role to play but it did not consider that they provided an adequate response to the problem in the types of case with which the court was concerned. The reasons for the court’s decision that the discrimination was not justified were given by Henderson J, with whom Maurice Kay LJ (para 23) and Hooper LJ (para 25) agreed. Henderson J emphasised (para 64) that he was not suggesting a general exception from the normal bedroom test for disabled people of all kinds. The exception, he said, was sought only for a very limited category of claimants, namely those whose disability was so severe that an extra bedroom was needed for a carer to sleep in, or in cases like that of Mr Gorry where separate bedrooms were needed for children who, in the absence of disability, could reasonably be expected to share a room. He observed that such cases were by their nature likely to be relatively few in number, easy to recognise, not open to abuse and unlikely to undergo change or need regular monitoring. He added that the fact that Parliament had now legislated for cases like that of Mr Burnip could be viewed as recognition by Parliament of the justice of such claims. Ten months later, Reg B13 was amended to insert para (5)(ba), which covered Mr Gorry’s case. 21. In the MA proceedings the Court of Appeal accepted that Reg B13 had a discriminatory effect on some people with disabilities, but it held that the discrimination was justified, primarily because the Secretary of State was entitled to take the view that it was not practicable to exempt an imprecise class of persons to whom the bedroom criteria would not apply because they needed extra bedroom space by reason of disability. The DHP scheme had the benefit of flexibility and was also appropriate because the nature of a person’s disability and disability-related needs may change over time….. 40. The impact of Reg B13 on those with disabilities was considered by the government and Parliament in depth. This is apparent from Laws LJ’s resume of the evolution of the policy (appendix 2). The reasons for the decision not to apply a general exemption from Reg B13 for those suffering from disabilities, but instead to make good the shortfall in cases where it would be inappropriate to expect someone with a disability to move house (or make good the shortfall by other means such as taking a lodger), were also explained in witness statements by Beverley Walsh, a senior civil servant in the Department of Work and Pensions. The essential point she made was that the impact of Reg B13 on those with disabilities was not uniform, but depended to a large degree on the nature and extent of their disabilities, as well as on their personal and social circumstances (such as whether they relied heavily on a local support network and whether suitable alternative accommodation was available, particularly if their present accommodation had been adapted to meet their individual needs). Some with disabilities would be significantly affected by the cap based on bedroom criteria; others would be no more affected than someone without disability. 41. In MA the Divisional Court and the Court of Appeal concluded after careful scrutiny that the Secretary of State’s decision to structure the scheme as he did was reasonable.In general terms I agree. There was certainly a reasonable foundation for the Secretary of State’s decision not to create a blanket exception for anyone suffering from a disability within the meaning of the Equality Act (which covers anyone who has a physical or mental impairment that has a more than minimal long term effect on the ability to do normal daily activities) and to regard a DHP scheme as more appropriate than an exhaustive set of bright line rules to cover every contingency. 42. However, that is not the end of the matter, for there are some people who suffer from disabilities such that they have a transparent medical need for an additional bedroom. Burnip and Gorry were in that category. Even before the decision in those cases there had been an amendment of the Regulations to “… include one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care (or in any case where both of them are)”. Burnip was such a case. Gorry was a case where children required separate bedrooms for disability reasons. In those cases, which were rightly identified by the Court of Appeal as ones where the individuals’ medical condition was easy to recognise and gave rise to the need for a separate bedroom, there was no reasonable cause to apply the same cap on HB as if the bedrooms were truly under-occupied. (Henderson J said that such cases were likely to be few, but I do not see that as a significant factor in itself.) 43. That brings me to the cases of Jacqueline Carmichael and the Rutherford family. They are counterparts to Gorry and Burnip respectively. 44. Mrs Carmichael cannot share a bedroom with her husband because of her disabilities. Her position is directly comparable to that of the Gorry children, who could not share a bedroom because of their disabilities. But Mrs Carmichael is caught by Reg B13 because para (5)(ba), which was introduced to meet the Gorry situation is confined to “a child who cannot share a bedroom”. 45. The Rutherfords need a regular overnight carer for their grandson who has severe disabilities. Their position is comparable to that of Mr Burnip, who needed an overnight carer. But the Rutherfords are caught by Reg B13 because para (6)(a), which covers the Burnip situation, does not extend to a child who requires overnight care. 46. There is no reasonable justification for these differences. The Court of Appeal in MA was persuaded (para 79) that there was an objective reasonable justification for treating Mrs Carmichael less favourably than a child in like circumstances, because the best interests of children are a primary consideration. I can see that there may be some respects in which differential treatment of children and adults regarding the occupation of bedrooms may have a sensible explanation. Expecting children to share a bedroom is not the same as expecting adults to do so. But I cannot, with respect, see a sensible reason for distinguishing between adult partners who cannot share a bedroom because of disability and children who cannot do so because of disability. And the same applies also to distinguishing between adults and children in need of an overnight carer.”[26]The only other case law to which I need to refer at this stage is the Supreme Court’s decision in R(SC) v SSWP [2021] UKSC 26; [2022] AC 223. This must now be seen as the definitive starting point in UK case law for consideration of Article 14 arguments, in social security cases at least. The general approach is summarised by Lord Reed at paragraph [37] of SC as follows:
“The general approach adopted to article 14 by the European court has been stated in similar terms on many occasions, and was summarised by the Grand Chamber in the case of Carson v United Kingdom (2010) 51 EHRR 13, para 61 (“Carson”). For the sake of clarity, it is worth breaking down that paragraph into four propositions: (1) “The court has established in its case law that only differences in treatment based on an identifiable characteristic, or ‘status’, are capable of amounting to discrimination within the meaning of article 14.” (2) “Moreover, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.” (3) “Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.” (4) “The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.”
The parties’ arguments The appellant

The parties’ arguments

[27]I have summarised the appellant’s key arguments in paragraph 11 above. In addition, he makes the following submissions.[28]The benefits specified within regulation 2(1)(a) of the HB Regs in themselves gave rise to discrimination because a higher level of disability was required in respect recipients of attendance allowance compared to those in receipt of the middle rate of the care component of DLA or the daily living component of the Personal Independence Payment.[29]The appellant’s health conditions have deteriorated since 2007 and so he would have met the relevant care component criteria of DLA or any new benefit by 2019. Further, his concern is not about the ‘spare room subsidy’ itself (i.e., the ‘no second bedroom for couples’ rule) but the detail of the implementation of regulation 2(1)(a) of the HB Regs following Carmichael. As to that detail, he has a rational basis for not reapplying for the care component of DLA, given the “distressing, and often protracted nature of [the] reassessment processes administered by the [DWP]”. His decision not to reapply is not one of omission but self-preservation. To penalise that decision was in breach of Article 14 of the ECHR, and regulation 2(1)(a) of the HB Regs ought to be disapplied. This would leave only the test in regulation 2(1)(b) such that a “member of a couple who cannot share a bedroom” would mean a member of a couple “whom the relevant authority is satisfied is, by virtue of his or her disability, not reasonably able to share a bedroom with the other member of the couple.[30]Regulation 2(1)(a) excludes disabled claimants with a clear functional need for a separate bedroom solely because they do not receive a narrow list of specified benefits. It thus unlawfully interfered with the appellant’s protected status (as a disabled person) by narrowing the concept of disability to receipt of specific qualifying benefits.[31]Further, discretionary housing payments (DHPs) are simply another measure taken by the Secretary of State to remove a statutory right of appeal and breached Article 6 of the ECHR. The appellant had, moreover, applied for a DHP in 2023 and been given a one-off payment. His was therefore a sufficiently clear class of case that the HB Regs should (also) have made an exception. Additionally, DHP funding does not mitigate the discriminatory measures introduced by regulation 2(1)(a) of the HB Regs. And Carmichael had confirmed “that reliance on a discretionary safety net cannot justify structural discrimination embedded in subordinate legislation”.[32]The appellant further contends that in his case the correct comparator (for Article 14 ECHR purposes) is other people with similar disabilities. Further, neither respondent had provided objective and reasonable justification for the introduction of regulation 2(1)(a) (and 13D(3)(za)) of the HB Regs), and the “impact of the need for a second bedroom is precisely the same for disabled people regardless of whether they are in receipt of a qualifying benefit”.[33]In further submissions the appellant has asked the Upper Tribunal to require both respondents to provide evidence regarding the availability of DHPs in Scotland to support the claim that the Scottish Government has provided fully mitigation for the “spare room subsidy” since 2017. The appellant has also asked, to the same end, that the Scottish Government be joined to these proceedings.[34]In a yet further submission, made out of time, the appellant seeks to argue that housing benefit decisions are made in law in the name of the Secretary of State for Work and Pensions under the Carltona principle, as such only staff holding recognised statutory qualifications may lawfully act as decision makers on housing benefit cases, and the officer acting as the decision maker for Dumfries and Galloway Council in this case was not suitably qualified.[35]I will deal with this discrete and out of time submission now. Even had it been made in time, it would have had no relevance to my decision on this appeal for two reasons.(i) First, I am not concerned with whether Dumfries and Galloway lawfully made the 5 September 2019 decision. My concern is with whether the FTT erred in law in redeciding that matter afresh and standing in the shoes of the first respondent: see paragraph 8 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 (“the 2000 Act”), section 11 of the Tribunals, Courts and Enforcement Act 2007, CH 1129/2002 and paragraphs [19]-[26] of R(IB)2/04. (Moreover, decision-making on housing benefit matters as a matter of law is vested in local authorities and not the Secretary of State: see paragraph 1(2) of Schedule 7 to the 2000 Act).(ii) Second, a human rights challenge is concerned with the substance of the decision made and not the process by which (or by whom) the decision was made: see Belfast City Council v Miss Behavin' Limited [2007] UKHL 19; [2007] 1 WLR 1420.

The Secretary of State

[36]The key points in the Secretary of State’s argument opposing the appeal are as follows.[37]The Secretary of State first emphasised that at the material time the appellant was not in receipt of any qualifying benefit for the purposes of regulation 2(1)(a) of the HB Regs because he was not entitled to the care component of the DLA, and as such as a matter of the statutory scheme he was not a “member of a couple who cannot share a bedroom”. Further, as the relevant amendments to the HB Regs were made as a result of the decision in Carmichael, that decision had no direct application to the appellant’s case.[38]The second point the Secretary of State relied on was that the administration of discretionary housing payments (“DHPs”) is a matter which was at the material time devolved to the Scottish Government. Furthermore, the Scottish Government had been committed since 2017 to fully mitigating, as far as was possible, the impact of the housing benefit rules limiting the number of bedrooms on which claimants’ awards of housing benefit would be assessed, through the funding of DHPs to individual claimants affected by the rules. That was based on the following policy of the Scottish Government:
“DHPs are administered by local authorities, and they must decide on what basis they award DHPs and how much they will pay. However, we fully fund the mitigation of the bedroom tax and benefit cap as far as possible within devolved powers through DHPs. So if you are affected by either of these you may apply for a DHP and should receive one.”
That commitment and individualised approach to awarding DHPs remained relevant to whether any discrimination arising from the ‘receipt of specified benefits’ part of the definition of “member of a couple who cannot share a bedroom” was justified, whether or not the appellant had applied for or been awarded DHPs.[39]Thirdly, the mitigating value of DHPs had been accepted by the Supreme Court in Carmichael. It had held (at paragraphs [29] and [38]) that a court or tribunal will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation”. Furthermore, the Supreme Court had, in general terms, agreed that there was a reasonable foundation for the HB Regs not creating a blanket exception for anyone suffering from a disability within the meaning of the Equality Act and for the DHP scheme to be regarded as more appropriate mitigation than an exhaustive set of bright line rules to cover every circumstance. It was in this way that Carmichael remained (indirectly) relevant to this case. The Secretary of State further contended that this ‘general’ approach which was validated by the Supreme Court in Carmichael applied to the appellant because(a) he had the opportunity to apply for DHPs (whether or not he had taken that opportunity) and(b) he did not fall within the bright line exceptions to the ‘no second bedroom rule’ which Parliament had made after, and in response to, Carmichael.[40]Fourthly, and relatedly, the Secretary of State relied on paragraphs [21] and [41] of Carmichael as establishing an acceptance, again in general terms, that although regulation B13 of the HB Regs did discriminate against some people with disabilities, such discrimination was justified because the Secretary of State could properly conclude that it was not practicable to exempt an imprecise class of persons to whom the bedroom criteria would not apply because they needed extra bedroom space due to their (or another’s) disability. Related to this, the DHP scheme provided flexibility because the nature of a disability and the associated needs may change over time.[41]The Secretary of State also drew on R (T) v Secretary of State for Work and Pensions [2022] EWHC 351 (Admin) and its view that a holistic approach to Article 14 discrimination challenges was called for, that “[i]n many instances, discrimination claims are better decided considering all….matters as part of a single exercise that includes justification, rather than taking each in turn as one of a series of discrete preconditions standing in the way of the need for any justification” and that “[i]n most instances the issue will not simply be whether some distinction can be drawn between the claimant and his comparator, but whether any distinction is a relevant distinction. This can require consideration of all evidence, including what is said by way of justification”. From this the Secretary of State argued that the appellant could not be said to have suffered unlawful discrimination. This was for the following reasons:(i) the appellant had been assessed in accordance with a proper statutory scheme and it could not be said that he had suffered any difference in treatment due to his particular disability;(ii) it was not for Dumfries and Galloway Council to assess whether the appellant met the disability conditions so as to qualify for an additional bedroom, and this was why qualification for particular benefits was necessary to comply with the definition in regulation 2(1) of the HB Regs; and(iii) the Appellant was not entitled to any of the qualifying benefits required in order to be considered for an additional bedroom when calculating entitlement to HB. Moreover support through the DHP scheme was available for circumstances such as the appellant's.[42]The Secretary of State further argued, following the proper approach to an Article 14 complaint in laid down in paragraph [101] of R (TP) v Secretary of State for Work and Pensions [2022] EWHC 123 (Admin), that the appellant could not properly be considered to have suffered a breach of either his Article 8 or 14 rights under the European Convention on Human Rights (as incorporated into domestic law by the Human Rights Act 1998). This was because it could not be said that the appellant had been treated less favourably because he had every opportunity to apply again to be awarded the relevant level of the care component of DLA. Moreover, the class of persons is that to which regulation 2(1) of the HB Regs applies, and the appellant could not suffer any difference in treatment because he was not in that class.[43]Furthermore, and following paragraph [28] of AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434, the appellant had failed to provide any evidence in support of his personal circumstances, apart from medical evidence, that would refer to his personal circumstances as a form of other personal status under Article 14.[44]Lastly, there was plainly a reasonable justification for any difference in treatment. The appellant had not made any further applications for an appropriate qualifying benefit or a DHP, and had failed to provide any explanation for those omissions. In these circumstances the refusal in accordance with the HB Regs was proportionate. There was always a high threshold for judicial interference into matters of social and economic policy and the bright line rule of requiring receipt of the one of the specified disability benefits was justified even if it resulted in unfairness in an individual case.[45]In a further submission of 16 July 2025, the Secretary of State “complemented” the above arguments by way of reference to the Supreme Court’s decision in (SC). The further submission accepted that disability constitutes a ‘suspect’ ground for justifying discrimination under Article 14 of the ECHR: per paragraphs [132] and [136] of SC. It argued that the correct approach to such a suspect ground in the context of matters of social policy was set out in paragraphs [151]-152] of SC, as follows (I have placed those paragraphs in the wider context in which they appear in SC):
“148. The fact that some grounds of differences in treatment can only be justified by “very weighty reasons”, whereas others can more easily be justified, was also discussed in some of the early cases in the House of Lords. For example, in R (RJM) v Secretary of State for Work and Pensions, para 56, Lord Neuberger of Abbotsbury, having noted that the ground of the differential treatment in relation to a social security benefit was homelessness, observed that the context was “an area where the court should be very slow to substitute its view for that of the executive, especially as the discrimination is not on one of the express, or primary, grounds”. 149. The case which led to some divergence from the reasoning of the European court, as it now appears, was Humphreys [2012] UKSC 18; [2012] 1 WLR 1545, which concerned indirect discrimination on the “suspect” ground of sex. The argument was that the payment of child tax credit to the parent with primary responsibility for the child, in cases where the child lived part of the time with one parent and part of the time with the other, adversely affected more men than women, as most children in that situation lived mainly with their mothers. It was common ground that the relevant question was whether the legislative policy was “manifestly without reasonable foundation”
. The only European cases cited were Stec and Runkee, which concerned a difference of treatment on a “suspect” ground but in the special context of transitional arrangements, and Carson, which did not concern a “suspect” ground. It is unfortunate that cases concerned, like Humphreys, with non-transitional measures and a “suspect” ground, such as Zeman, Luczak and Andrejeva, were not cited. 150. Lady Hale (with whom the rest of court agreed) interpreted Stec, in accordance with the appellant’s submission, as applying what she described as “the ‘manifestly without reasonable foundation’ test” (para 17) to discrimination on the ground of sex. Referring to the fact that in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173 a distinction had been drawn between discrimination on so-called “suspect” grounds, such as race and sex, and discrimination on less sensitive bases, she stated at para 19:
“But that was before the Grand Chamber’s decision in the Stec case 43 EHRR 1017. It seems clear from Stec, however, that the normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the ‘manifestly without reasonable foundation’ test in the context of state benefits. The same principles were applied to the sex discrimination involved in denying widow’s pensions to men in Runkee v United Kingdom [2007] 2 FCR 178, para 36. If they apply to the direct sex discrimination involved in the Stec and Runkee cases, they must, as the Court of Appeal observed, at para 50, apply a fortiori to the indirect sex discrimination with which we are concerned.”
Lady Hale stated at para 22 that “the [manifestly without reasonable foundation] test is less stringent than the ‘weighty reasons’ normally required to justify sex discrimination”, but added that that did not mean that the justifications put forward for the rule should escape “careful scrutiny”. In the event, the differential treatment was held to be justified, and the challenge to the legislation was dismissed. 151. I do not doubt the correctness of that decision, but it now appears to me that the reasoning on justification, following the submissions made, did not reflect the Strasbourg jurisprudence entirely correctly. First, it seems to me that the “manifestly without reasonable foundation” formulation, as used in the Strasbourg judgments, does not express a test, in the sense of a requirement whose satisfaction or non-satisfaction will in itself necessarily be determinative of the outcome. The phrase indicates the width of the margin of appreciation, and hence the intensity of review, which is in principle appropriate in the field of welfare benefits, other things being equal. As I have explained, however, a number of other factors may also be relevant in the circumstances of particular cases, some of which may call for a stricter standard of review. One might then ask, for example in a case concerned with “suspect” grounds, whether “very weighty reasons” have been shown, having regard to the wide margin generally available in that field…….However it is put, the question is more complex than a “test” of whether the policy choice is “manifestly without reasonable foundation” might appear to be if that were regarded as the entirety of the inquiry. 152. Secondly, the reasoning departed from the Strasbourg approach in its interpretation of Stec and Runkee, and its consequent rejection of a distinction between “suspect” and other grounds of differences in treatment in the field of welfare benefits (matters which could only be appreciated in the light of other Strasbourg authorities which were not before the court). As explained at paras 100-113, 117-124 and 136-142 above, differential treatment on a suspect ground, if it is capable of justification at all, generally (but not always) requires to be justified by “very weighty reasons”. That is so even in the context of measures of social and economic policy which would usually benefit from the “manifestly without reasonable foundation” approach. The “manifestly without reasonable foundation” approach does not, therefore, replace or supersede the requirement for “very weighty reasons” where “suspect” grounds are in issue. Instead, the degree of deference usually appropriate in relation to social or economic policy choices may have to be taken into account in assessing whether “very weighty reasons” have been shown. 153. Nevertheless, Lady Hale’s insistence on the need for “careful scrutiny” was capable of ensuring an appropriate balance between the competing considerations. In Humphreys itself, Lady Hale carried out a scrupulously careful and balanced analysis. Although her judgment was not expressed in the same language as the European court would have employed, I do not doubt that it was Convention-compliant.” “But that was before the Grand Chamber’s decision in the Stec case 43 EHRR 1017. It seems clear from Stec, however, that the normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the ‘manifestly without reasonable foundation’ test in the context of state benefits. The same principles were applied to the sex discrimination involved in denying widow’s pensions to men in Runkee v United Kingdom [2007] 2 FCR 178, para 36. If they apply to the direct sex discrimination involved in the Stec and Runkee cases, they must, as the Court of Appeal observed, at para 50, apply a fortiori to the indirect sex discrimination with which we are concerned.”[46]The Secretary of State argued that such “weighty reasons” did exist, and had been advanced by him, to justify the policy choice made in the legislative scheme following Carmichael.[47]The further submission of the Secretary of State concluded by pointing out that the definition of “member a couple who cannot share a bedroom” in regulation 2(1)(a) of the HB Regs had been amended by regulation 3 of the Social Security (Miscellaneous Amendments) Regulations 2025 so that either rate of Attendance Allowance counted as a qualifying benefit. However, that legislative change occurred well after the decision under appeal this case.

Discussion and Conclusion

[48]I broadly agree with the arguments made by the Secretary of State.[49]There is no real need to take up time on whether the appellant’s case about the effect of the HB Regs comes within the ambit of Article 8 of the ECHR. The FTT proceeded on the basis that the appellant’s case came within the ambit of Article 1 of the First Protocol to the ECHR and it was right to do so: see, relatedly,PR v Secretary of State for Work and Pensions (UC) [2023] UKUT 290 (AAC) and paragraph [17] of CD v Secretary of State for Work and Pensions (UC) [2024] UKUT 256 (AAC). The key issue on the appeal is whether Article 14 of the ECHR was breached.[50]As I have set out already, the focus of the appellant’s case has to be on the part of regulation 2(1) of the HB Regs which required that in order to be a “member of a couple who cannot share a bedroom” he (or his wife) had to be in receipt of one of the specified benefits, such as the middle or highest rate of the care component of DLA. It is not disputed that the appellant (and his wife) was not in receipt of any of the specified benefit. It was perhaps unfortunate that the FTT used the language of “significant and material disabilities” in contrast to “minor and trivial disabilities, as the appellant has been offended by this as he has seen it as the FTT judging his disabilities to be minor and trivial. However, all I have understood the FTT to have meant by “significant and material” disabilities was disabilities that would warrant an award of one of the specified benefit in regulation 2(1)(a) of the HB Regs.[51]The focus needs to be on regulation 2(1)(a) of the HB Regs because it is that provision (and that provision alone) which stopped the appellant from having his award for housing benefit assessed on the basis of his needing two bedrooms. The sole issue on this appeal is therefore whether that ‘being in receipt of specified benefits’ rule was lawfully (in human rights terms) applied to the appellant. The appellant’s case is that the test found in regulation 2(1)(a) of the HB Regs ought to be sufficient, and a sufficient answer to that which was found wanting in the HB Regs in Carmichael. However, Parliament has legislated as it has by inserting both the regulation 2(1)(a) and the 2(1)(b) tests into the HB Regs, and both test have to be applied unless not human rights compliant.[52]It is a perhaps curious feature of this appeal that the appellant founds his case (at least in large part) on not being required to apply for any of the specified disability benefits. He therefore wishes the assessment of his disability I understand the appellant to accept that the need for a second bedroom to arise from disability is a lawful mechanism for providing for exceptions to the ‘no second bedroom rule’ for couples in the HB Regs. To argue otherwise and for wider exceptions would run contrary to all relevant case law, including the cases traversed in Carmichael and Carmichael itself. to be based not on the defined and readily identifiable categories of disability benefits specified in the regulation 2(1)(a) of the HB Regs part of the definition of a “member of a couple who cannot share a bedroom”, but on an individual assessment of his disability. There are of several problems with this approach.[53]First, it would (at least in theory) potentially allow the appellant to qualify to be assessed for housing benefit based on two bedrooms even if, had he in fact made a claim for one of the specified disability benefits, he had properly been found not to be entitled to that disability benefit. In other words, he would be extending the exceptions to the ‘no second bedroom for couples’ rule.[54]Secondly, such an individualised approach to assessment of disability would run counter to the general acceptance of the Supreme Court in paragraph [41] of Carmichael not to have a general exception for anyone with a disability or an exhaustive set of rules covering every contingency.[55]Thirdly, the appellant’s approach would leave indeterminate and opaque on what easy and clear basis the qualifying disability is to be assessed or identified by a relevant housing benefit authority. As Carmichael and the earlier case law it discusses shows, the need for the disability exception to be “easy to recognise” (paragraphs [20] and [42] of Carmichael) or being based on a “transparent need” for a second bedroom” (para. [42]), was (and is) a key feature of crafting the exception(s). That was in the context of DHPs covering the less obvious or recognisable cases, and that such an approach overall would provide a reasonable foundation (and thus justification) for any differences in treatment and discrimination such a housing benefit scheme might give rise to.[56]Fourthly, a further, and logically anterior, problem with the appellant’s approach concerns the relevant person in comparison to whom the appellant may be said to be being discriminated against. As SC reiterates, it is only differences in treatment based on an identifiable characteristic, or ‘status’, that are capable of amounting to discrimination within the meaning of Article 14: see point(1) in paragraph [37] of SC. Moreover, the difference in treatment based on status has to be in respect of someone in a relevantly similar situation: point(2) in paragraph [37] of SC.[57]The relevant “other status” for the purposes of Article 14 of the ECHR on the appellant’s case is ‘disability’, or as he puts it someone who has similar disabilities to him. However, if the comparator is someone who is disabled (or similarly disabled to the appellant) but who has not claimed one of the disability benefits specified in regulation 2(1)(a) of the HB Regs, or has claimed such a benefit but been refused it, that person and the appellant are being treated the same, and there is therefore no difference in treatment. If instead the comparator is a disabled person who has claimed and been awarded one of the regulation 2(1)(a) ‘specified benefits’ (and so is in receipt of it), I struggle to see on what basis the difference of treatment between that person and the appellant arises because of disability. The difference is because one person has claimed and been awarded a specified benefit and the appellant has not. That is not therefore a difference in treatment based on the appellant’s status as a disabled person.[58]The difference in treatment arose, initially, from the refusal (in 2007) not to award the appellant the middle or the highest rate of the care component of DLA. As a matter of law, that was a final decision determining the appellant’s entitlement to DLA in 2007: see section 17(1) of the Social Security Act 1998. But a person who was similarly disabled compared to the appellant at that time ought also to have been refused the middle or highest rate of the care component of DLA. So there would have been no difference in treatment between the appellant and his comparator at that time.[59]In fairness to the appellant, his case is really about the level of his disability at the time of the housing benefit decision on 5 September 2019 and someone else with similar disabilities at that time. Again, however, if that other person had also not (re)claimed DLA in September 2019, there would be no difference in treatment between the appellant and that other person because they both would not have satisfied regulation 2(1)(a) of the HB Regs.[60]The crux of the appellant’s case is, however, that had he reclaimed DLA (or sought supersession of the 2007 DLA awarding decision on the basis that his condition had deteriorated since 2007) in September 2019, he would have qualified for at least the middle rate of the care component of DLA (or one of the other specified benefits, such as the Adult Disability Payment). But the appellant did not reclaim DLA (or seek supersession of the DLA awarding decision) in 2019 (or since then). A difference in treatment would only arise in this situation where the other person with similar disabilities to the appellant had claimed and been awarded one of the specified benefits in September 2019. In that circumstance, however, the difference in treatment would (again) not be based on the status of disability but because the appellant had chosen not to reclaim DLA. As a result, Article 14 does not apply, as there is no difference in treatment which calls for justification. In other words, and to use the categorisation summarised in paragraph [37] of SC, there is no difference in treatment which is capable of amounting to discrimination, and therefore the question of whether a difference in treatment has objective and reasonable justification does not arise.[61]I have considered instead whether the relevant other status under Article 14 is the requirement to claim one of the specified disability benefits set out in regulation 2(1)(a) of the HB Regs. At times it is this requirement to claim the disability benefit which has been the focus of appellant’s complaint, albeit he has consistently said the relevant status is disability. However, the legislative requirement to claim a disability benefit in order to be entitled to it, and thus receive it, which is found in section 1 of the Social Security Administration Act 1992 (“the SSAA”), is not a personal characteristic of the appellant. To so hold would be to define the relevant ‘other status’ solely by the difference in treatment complained of: per paragraph [69] of SC. Putting this in a slightly different way, and again no borrow from paragraph [69] of SC, it is not in my judgement possible to identify a ground for the difference in treatment in terms of a personal characteristic of the appellant which is not merely a description of the difference in treatment itself, namely the need to claim the specified disability benefit. It was this lack of an “other status” under Article 14 of the ECHR which I consider the FTT was adverting to, and deciding, in paragraph 20 of its Decision Notice.[62]I have further considered, and again in the alternative, whether the requirement to claim the disability benefits found in regulation 2(1)(a) of the HB Regs might be argued to indirectly discriminate against some disabled people; though no such argument has been advanced in this appeal. Even ignoring the difficulty for such an argument that the need to claim the benefit is mandated clearly by an Act of Parliament (per section 1 of the SSAA), no evidential case has ever been put forward in these proceedings to make good such an argument. And (per DH v Czech Republic 47 EHRR 3) it is not at all obvious that one group of people with disabilities (thus using the other status of disability), and of which the appellant is a member, would be adversely affected by the requirement to claim one of the regulation 2(1)(a) disability benefits when compared to another group of people with disabilities.[63]On this basis alone, the appeal must fail. The difference in treatment of which the appellant complains is not based on the status of disability (or any other personal characteristic).[64]However the FTT and the arguments before me have also addressed the justification for any discrimination, and I therefore do so as well. I do so in terms of general justification for regulation 2(1)(a) of the HB Regs given my clear judgement above that the appellant has failed to establish in his case any difference in treatment based on a status that calls for justification.[65]In my judgement, even adopting the more nuanced approach to justification laid down by the Supreme Court in SC (see paragraph 44 above), the requirement to be in receipt of one of the disability benefits specified in regulation 2(1)(a) of the HB Regs has an objective and reasonable justification. I say this for the following, cumulative, reasons.[66]Although the legislative amendments that brought in regulation 2(1)(a) and 13D(za) of the HB Regs were as a result of the decision in Carmichael, and therefore Carmichael was not about those amendments, in my judgement those amendments provide for what the Supreme Court in Carmichael considered was needed to make the HB Regs human rights compliant. I have set out the relevant passages from Carmichael in paragraph 25 above. It is plain in my judgement that the Supreme Court was endorsing the view (see paragraph [41] of Carmichael in particular] that, in terms of persons with disabilities generally and in the context of the legitimate approach of the Government to curb public expenditure (by trying to ensure that tenants with more bedrooms than they required moved into smaller accommodation), the structure of the then HB scheme was reasonable. There was an objective and reasonable foundation for the HB scheme as it then was not to create a banket exception from the ‘no second bedroom rule’ for all people with disabilities, and to regard a DHP scheme as more appropriate means of addressing individual cases rather than an exhaustive set of rules to cover ever contingency.[67]Pausing here, this last point from Carmichael stands flatly against the appellant’s argument that reliance on a discretionary safety net (DHPs) cannot justify discrimination in the HB Regs.[68]However, where the HB Regs in Carmichael unjustifiably discriminated against disabled people was in not having an exception (per paragraphs [20] and [42] of Carmichael) for where the claimant’s medical condition was easy to recognise and gave rise to the need for a second bedroom because of the severity of the disability. In such cases there was no objective and reasonable justification to apply the same cap on HB as if the bedrooms were truly under-occupied.[69]What comes out of Carmichael, therefore, is a need for an exception in the HB Regs based on(i) an easy to recognise severe disability, and(ii) the claimant (or their partner) being unable to occupy the same bedroom because of that severe disability. These two features of the ‘Carmichael needed exception’ are in my judgement, what regulation 2(1)(a) and (b) of the HB Regs provides for. The objective and reasonable justification for the need to be in receipt of specified disability benefit in regulation 2(1)(a) is because of the need to have an easy to identify class of person with a severe disability, given the Supreme Court’s view that not all (Equality Act) disabilities required an exception. Further, the FTT has explained why regulation 2(1)(b) of the HB Regs is also required, because not all people receiving one of the regulation 2(1)(a) specified benefits would be unable to share a bedroom because of their severe disability.[70]The appellant has raised an argument that the specified benefits found in regulation 2(1)(a) do not cover the same extent of disability. However, this is not relevant to this appeal because the appellant’s case is not about any alleged unequal effect of regulation 2(1)(a), it is that he ought not to be required to claim any of those benefits (however they are calibrated).[71]In cases which do not fall within the above regulation 2(1) exceptions, the availability for DHPs would clearly in my judgement have been viewed by the Supreme Court in Carmichael as being justified in terms of ameliorating the effects of the ‘no second bedroom rule’ for those not in receipt of any of the specified disability benefits.[72]There is, moreover, no merit in the appellant’s arguments concerning now obtaining evidence about the availability of DHP’s in Scotland. There is no evidence that the appellant applied for and was refused on-going DHP payments after his housing benefit was reduced with effect from September 2019. The evidence of the one-off DHP payment the appellant received in April 2023 was well after the date of the 5 September 2019 decision under appeal to the FTT, could not as a result have been taken into account by the FTT (see, again, paragraph 6(9)(b) in Schedule 7 to the 2000 Act) and is not evidence of the first respondent not being able to make on-going DHP payments to the appellant from September 2019 to offset the effects of the ‘no second bedroom rule’ applying to him. The evidence as to that remains commitment of the Scottish Government that:
“DHPs are administered by local authorities, and they must decide on what basis they award DHPs and how much they will pay. However, we fully fund the mitigation of the bedroom tax and benefit cap as far as possible within devolved powers through DHPs. So if you are affected by either of these you may apply for a DHP and should receive one.”
[73]For all the reasons set out above, this appeal is dismissed. Stewart Wright 76. Judge of the Upper Tribunal Authorised for issue on 16th October 2025