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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Cotton & Ors, R (on the Application of) v Secretary of State for Work and Pensions & Ors  EWHC 3437 (Admin) (22 October 2014)
Cite as:  EWHC 3437 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
On the application of
|- and -
|SECRETARY OF STATE FOR WORK AND PENSIONS
- and -
NEW FOREST DISTRICT COUNCIL
DERBY CITY COUNCIL
COTSWOLD DISTRICT COUNCIL
Mr Jason Coppel QC and Mr Edward Brown (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 15th October 2014
Crown Copyright ©
Mr Justice Males :
a. a breach of Article 8 of the European Convention on Human Rights;
b. a breach of Article 8 of the Convention read with Article 14; and
Summary of the factual position
a. The children were living with each parent, with a bedroom at each parent's home, on a regular and ongoing basis. These are not cases of occasional overnight stays. From the children's point of view, it seems likely that they would regard themselves as having two homes, one with each parent, with a bedroom of their own at each.
b. Although there is no detailed evidence about this, it is very likely that these arrangements are in the best interests of the children. That was decided by the court which made the order in Ms Cotton's case (possibly despite opposition by one or both of the parents) even though, for whatever reason, the arrangement ended in August 2013. In the case of Mr Hutchinson and Mr Cohen the arrangements are voluntary, but it seems obvious that it is in the best interests of the children if they are able to enjoy family life with both parents. That is likely to promote their well-being and their social and psychological development.
c. If DHPs were to be withdrawn from Mr Hutchinson or Mr Cohen, there is at any rate a risk that they would be unable to continue to live in their present accommodation, and therefore that the current arrangements could not continue. Whether that would in fact happen would depend upon circumstances as they exist at whatever time in the future when DHPs may be withdrawn. It is possible that the claimants' circumstances, for example their ability to work or the funding available to them, may change. Indeed it is possible that their relationship with the children, or perhaps with a new partner, may change. All that is in the future and is speculation. However, if their circumstances remain as they presently are, the risk that the current arrangements could not continue in the absence of DHPs and that this would have an adverse impact on the claimants and on the children appears to be high.
d. Nevertheless, if that were to happen it is not suggested that the withdrawal of DHPs and the cessation of the existing arrangements would end the claimants' relationship with their children. The claimants would be able to continue seeing their children and overnight stays would in all probability be possible from time to time, although the children would no longer have a bedroom of their own with Mr Hutchinson or Mr Cohen and would no longer be able to live on a regular basis with them.
e. However, the fact is that the claimants have been receiving DHPs (save, it appears, for limited periods when Mr Hutchinson or Mr Cohen did not make the correct application). Consequently they have suffered no net loss of income at all as a result of the changes to housing benefit. All that has happened is that instead of receiving housing benefit as of right, they have received the same net amount made up by (i) a reduced amount of housing benefit plus (ii) DHPs making good the reduction. I accept that the possibility that DHPs may be withdrawn in the future has been a source of anxiety for Mr Hutchinson and Mr Cohen, and perhaps also for any of the children who are old enough to understand the position, but as of now that is the most that can be said, at any rate in the case of these particular claimants.
Discretionary Housing Payments
"can be used to provide support to claimants affected by some of the key welfare reforms, including:
- the benefit cap;
- removal of the spare room subsidy in social rented sector;
- reductions in local housing allowance."
"Additionally you should record the intended outcome when making an award. The outcomes are broadly grouped into the areas that cover the policy intention of DHPs:
- To help secure and move to alternative accommodation (e.g. rent deposit)
- To help with short-term rental costs until the claimant is able to secure and move to alternative accommodation
- To help with short-term rental costs while the claimant seeks employment
- To help with on-going rental costs for disabled person in adapted accommodation
- To help with on-going rental costs for foster carer
- To help with short-term rental costs for any other reason."
The previous challenges
The short answer
The need to engage with the Article 8 issues
"The right reverend prelate the Bishop of Norwich asked about non-resident children. Where the tenant has non-resident children, housing benefit may already be paying for a room for the child or children in the place where they usually reside. It would be double provision potentially to fund an additional room in both parents' properties."
Is Article 8 engaged?
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, or the prevention of disorder or crime, or the protection of health or morals, or for the protection of the rights and freedoms of others."
"We consider that article 8 is engaged by the cap, at the very least in that aspect of article 8 which confers a right to respect for private and family life. The Secretary of State accepts that the cap may place families in a position where they are unable to remain in their existing accommodation. One of its aims is to force persons who are out of work and in receipt of benefits to take decisions as to how they can live within the means of the capped benefits they receive. As a result, many families will be forced to find cheaper accommodation. In particular, it may be necessary for them to move away from areas of high cost accommodation and, therefore, away from the existing support networks provided by their wider families and friends. Although we have seen little evidence as to the actual effect of the cap in this regard to date, we were shown a memorandum in which an official in the Department for Communities and Local Government estimated that the operation of the cap could result in an additional 20,000 families being accepted by local authorities as homeless and requiring to be accommodated. In these circumstances, we consider that the measure does have a sufficient impact on the enjoyment of private and family life to engage article 8 in the sense that it falls within the ambit of the provision."
"The particular housing benefit with which we are concerned falls outside the ambit of article 8 because there is no obligation to provide the benefit and its provision is not the state demonstrating its respect for a claimant's home in the way that parental leave allowance was held to demonstrate respect for family life."
Is there an interference with the claimants' right to respect for their family life?
"It is clear from these authorities that the threshold for a positive obligation to provide welfare support under article 8 is set at a very high level."
"Secondly, the need for the court to be cautious about finding unlawful discrimination of a statutory instrument passed by affirmative resolution of Parliament is heightened by the fact that some of the principal complaints that are made by the claimants were expressly raised and discussed during the parliamentary debates and rejected."
"Our conclusion is that Sullivan J was correct to accept that article 8 is capable of imposing on a state a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, article 8 may require the provision of welfare support in a manner which enables family life to continue. Thus, in R (J) v Enfield London Borough Council  EWHC 735 (Admin), where the claimant was homeless and faced separation from her child, it was common ground that, if this occurred, article 8(1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the claimants' home in Bernard  LGR 423 and we consider that it was open to Sullivan J to find that article 8 was infringed on the facts of that case."
Are the Regulations necessary and proportionate?
i) First, the application of the Regulations to parents with shared care was not only raised by a consultation on various aspects of housing benefit reform before the Regulations were introduced, but was raised expressly during the passage of the legislation through Parliament.
ii) Second, there is no precisely defined group of individuals with shared care of children whose circumstances justify disapplication of the bedroom criteria by a specific exemption. In particular, there is no "bright line" to identify the extent of shared care which justifies an exemption, or determines whether any exemption should apply only to parents or to grandparents or other minority carers as well.
iii) Third, while shared care arrangements are not the primary focus of DHPs, local authorities are required to consider applications to alleviate hardship in any circumstances, including the application of the bedroom criteria to shared care arrangements. Thus, if a reduction in housing benefit in a particular case did threaten to infringe Convention rights, the relevant local authority would have a duty to consider awarding a DHP to avoid that infringement.
iv) Fourth, the principle of one person being responsible for a child in any benefit period, upheld by the Supreme Court in Humphreys, should also apply to housing benefit in the public sector as it applies to Child Tax Credit, which is intended to provide for the basic needs of children, and as it applies also to housing benefit in the private rental sector.
v) Fifth, therefore, in principle and in the absence of particular hardship, the state should pay housing benefit at a level which will provide a room for a child to one carer only.
i) As already indicated at  above, I accept that the particular issue now raised was expressly raised in Parliament. That was an important consideration in MA and is equally so here.
ii) I accept also that, like MA, this is a case where there is no readily definable category of persons who might be made the subject of an exemption. If parents whose children stay with them for about half the time, why not one or two nights a week? Why not grandparents or other close family members? Ms Lieven's response was that a line has necessarily to be drawn somewhere in welfare cases, that the claimants were only required to show that the Secretary of State had failed to justify the Regulations in their case, and that it was for the Secretary of State to bring forward appropriate proposals. I accept, however, that the difficulty of defining an appropriate category of persons with secondary responsibility in shared care cases to whom the Regulations should not apply is a relevant consideration, for the same reasons as given by the Court of Appeal in MA.
iii) For the purpose of this stage of the argument, I am proceeding on the basis that although the fact that the claimants have to move to a smaller property where their children cannot live with them will not of itself be an interference with their rights under article 8, there may be cases of particular hardship over and above the reduction in family life which that situation necessarily involves and that such cases of particular hardship may on appropriate facts pass over the high threshold required to amount to an interference with article 8 rights. In that event, I accept that local authorities would be required to consider applications for DHPs so that if in a particular case a reduction in housing benefit did threaten to infringe Convention rights, the relevant local authority would have a duty to consider awarding a DHP to avoid that infringement. In the light of MA, that is the appropriate approach to the question of justification. (Conversely, however, if -- contrary to my decision -- the appropriate assumption is that if the claimants have to move, that will of itself interfere with their article 8 rights, whether the availability of DHPs provides sufficient justification is less clear. Such a conclusion would be tantamount to deciding that in every case where a parent with significant secondary responsibility would otherwise be forced to move, there is an obligation on the state to make good the housing benefit shortfall by means of DHPs. That would appear to be a far-reaching conclusion, although on the view which I take it does not arise).
iv) The fourth and fifth points listed above go together. While I accept that there are differences between housing benefit and other benefits (such as Child Tax Credit) to which the principle of one person being responsible for a child in any benefit period applies, it cannot in my judgment be said to be irrational to harmonise the payment of housing benefit in the public sector with other benefits in this way, and to determine in current economic circumstances that in the absence of particular hardship, the state should pay housing benefit at a level which provides a room for a child to one carer only. Whether that is an appropriate policy is a matter for the legislature, not the judges.
Article 14 read with Article 8
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."