I am awaiting a decision from the Upper Tribunal also in Scotland.
Judge Gamble in his opening remarks refered to these two decisions and that he and Judge May had followed MA in each case.
The case that I had before the UT was to defend a first tier decision that had allowed the appeal and which predated MA. A key issue distinguishing it from the other cases was that DHPs had been refused.
The argument I used followed the reasoning in the first tier tribunal SOR for Carmichael, adding the decision in Kiyutin v Russia ([2011] ECHR 439, paragraph 59) re the importance of using a comparison with someone in an analagous situation
(I also tried adding a ‘Scottish Dimension’ as the policy is aimed at underoccupation- MA para 2, which is a housing issue, which is devolved, and as HB satff are local authority employees, who by virtue of the Single Outcome Agreement are acting on behalf of Scottish Ministers, and therefore the Scotland Act in addition to the Human Rights Act needs to be considered, but I’d accept that this last bit is a long shot!)
The Secretary of State argued that the general availability of DHPs was sufficient regardless of whether the DHP was awarded or not. In effect that the tribunal need not have considered the individual circumstances of discrimination if the scheme as a whole was justified and relied on the decision of the supreme court in Humphreys. There is a distinction then between Section 14 cases and section 8 cases.
Will have to see how it goes but I don’t hold out a lot of hope. As Judge Gamble said in his opening remarks ‘It will take a lot to persuade me that MA should’t be followed’, although concluded that ‘it is a fine point of law that will require careful deliberation’