The Upper Tribunal, in the exercise of its statutory appellate jurisdiction, cannot rule on whether the Equality Act 2010 has been breached. Section 113 of the Equality Act 2010 allows the Upper Tribunal to address alleged contraventions of the 2010 Act under its judicial review jurisdiction but ousts its statutory appellate jurisdiction in that regard. Where an appeal is brought before the Upper Tribunal in which a section 149(1) argument is made, that part of the case will need to be determined by way of judicial review proceedings in the High Court (paras 60, 61, 62).

Where, therefore, an unsuccessful applicant for a social security benefit appealed to the Upper Tribunal on the ground that the statutory scheme governing entitlement to that benefit was discriminatory in breach of the public sector equality duty in section 149(1) of the Equality Act 2010—