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[2004] UKSSCSC CH_4574_2003 (24 February 2004)


     
    DECISION OF THE SOCIAL SECURITY COMMISSIONER
  1. My decision is that the decision of the Peterborough appeal tribunal, held on 10 July 2003 under reference U/42/143/2003/00318, is not erroneous in point of law.
  2. The issue

  3. The issue in this case is whether regulation 5(8B)(c)(i) of the Housing Benefit (General) Regulations 1987 discriminates against the claimant in that it applies to persons in bail hostels and does not extend to persons, like the claimant, who are on bail and who are required as a condition of bail to live at a specified address away from their 'home'.
  4. The appeal to the Commissioner

  5. The case came before me as an appeal to a Commissioner brought by the claimant against the decision of the appeal tribunal with the leave of a district chairman of tribunals. At that stage, the other party was the claimant's local authority, Peterborough City Council. I invited the Secretary of State to join the proceeding and this invitation was accepted.
  6. In view of the issue, I directed an oral hearing. It was held before me in London on 17 February 2004. The claimant was represented by Ms Manila Sergides of counsel, instructed by Kirkpatricks. The Secretary of State was represented by Ms Marie Demetriou of counsel, instructed by the Solicitor to the Department for Work and Pensions. The local authority wrote to say that it would not be represented as the issue was essentially one between the claimant and the Secretary of State.
  7. Both counsel provided written skeleton arguments in advance. I am grateful to them for those arguments and for their clear and helpful arguments at the hearing.
  8. The facts

  9. The facts are straightforward and not in dispute. The claimant was charged with an offence. At that time, she was living in, and receiving housing benefit in respect of, a dwelling that I will refer to as her council dwelling. She was granted bail on the condition that she lived with her daughter at a different address. I will refer to this as her daughter's home. The local authority terminated her housing benefit in respect of her council dwelling. As a result, she could not pay her rent. The local authority sought possession and obtained an order for possession. This was suspended on condition that the arrears of rent were cleared. They were not, with the result that the claimant in due course lost the dwelling.
  10. The adjudication history

  11. The local authority decided that the claimant was not entitled to the benefit of regulation 5(8B)(c)(i). There is no dispute that that decision was correct on the legislation as it stands. But the claimant appealed against that decision, arguing that the legislation was in violation of her Convention right under article 14 when read in conjunction with either article 8 or article 1 of Protocol 1.
  12. The housing benefit legislation

  13. Section 130(1)(a) of the Social Security Contributions and Benefits Act 1992 imposes occupation as a condition of entitlement to housing benefit. It provides:
  14. '(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'.
  15. It seems that no benefit can exist without deeming provisions. Section 137(2) contains a series of enabling powers that authorise regulations to be made on a variety of matters relevant to housing benefit. One of these powers relates to occupation. Section 137(2)(h) provides:
  16. '(2) Regulations may make provision for the purposes of this Part of this Act-

    (h) as to circumstances in which a person is or is not to be treated as occupying a dwelling as his home'.
  17. The relevant regulation made under this power is regulation 5 of the Housing Benefit (General) Regulations 1987. Regulation 5(1) provides:
  18. '(1) Subject to the following provisions of this regulation, a person shall be treated as occupying as his home the dwelling normally occupied as his home and shall not be treated as occupying any other dwelling as his home.'

    This provision in effect changes the condition of entitlement in section 130(1)(a) from occupation to normal occupation.

  19. It is expressly subject to the other provisions of regulation 5. They include provision dealing with absences from the home. The present provisions were inserted by amendment in 1995. Before that, the legislation allowed a 52 week period of absence. The amendments substituted a basic 13 week period of allowed absence, with an extension to 52 weeks in specified cases.
  20. It is convenient to start with regulation 5(8). It provides:
  21. '(8) Subject to paragraph (8C), a person shall be treated as occupying a dwelling as his home while he is temporarily absent therefrom for a period not exceeding 13 weeks beginning from the first day of that absence from home only if-

    (a) he intends to return to occupy the dwelling as his home; and

    (b) the part of the dwelling normally occupied by him has not been let or, as the case may be, sub-let; and

    (c) the period of absence is unlikely to exceed 13 weeks.'

    There is no limitation on the reasons for a person's absence from home, but they must be consistent with the dwelling remaining the person's home. That is inherent in the concept of temporary absence.

  22. Regulation 5(8) is expressly subject to regulation 5(8C), which in turns refers to regulation 5(8B). Regulation 5(8C) extends the period of 13 weeks to 'any period of absence not exceeding 52 weeks'. It applies in the circumstances set out in regulation 5(8B). Put loosely, this sets out a series of circumstances that merit longer periods of absence from home. Many, but not all, are circumstances in which the claimant has no choice but to be living elsewhere. The relevant parts of regulation 5(8B) provide:
  23. '(8) This paragraph shall apply to a person who is temporarily absent from the dwelling he normally occupies as his home ("absence") if -

    (a) he intends to return to occupy the dwelling as his home; and

    (b) while the part of the dwelling which is normally occupied by him has not been let or, as the case may be, sub-let; and

    (c) he is-

    (i) as a condition of bail, required to reside in a hostel approved under section 27(1) of the Probation Service Act 1993

    (d) the period of his absence is unlikely to exceed 52 weeks or, in exceptional circumstances, unlikely substantially to exceed that period.'

  24. Regulation 5(4A) is relevant to bail hostels. It was inserted into the regulation in 2000. It provides:
  25. '(4A) Where a person is required to reside in a dwelling which is a bail hostel approved by the Secretary of State under section 27 of the Probation Service Act 1993, he shall not be treated as occupying that dwelling as his home.'

    This links in with regulation 5(8B)(c)(i) and (8C), which together have the effect that the person is treated as occupying the person's former home as a dwelling. If the bail hostel were the dwelling occupied as a home during the person's stay, the person would not be entitled to housing benefit in respect of the former home. The reason is found in regulation 5(1). This provides that a person may only occupy one dwelling as a home at any time. There are exceptions in regulation 5(5) and (6), but none applies to the circumstances of a claimant who is on bail, whether or not the person is required to reside in a bail hostel.

    The Convention rights

  26. The claimant relies on a breach of article 14 when read in conjunction with either article 1 of Protocol 1 or article 8. They provide:
  27. Article 8
    Right to respect for private and family life
    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, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
    Article 14
    Prohibition of discrimination

    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.

    The first protocol
    Article 1
    Protection of property

    Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

    The arguments in outline

  28. I set out below in summary the arguments for the claimant and the Secretary of State. I deal with them in detail later. In view of my ultimate decision, I could have dealt with the case solely on the basis of justification for any discrimination that may have occurred. However, I deal with all the stages of the arguments that were put to me, partly out of courtesy to counsel and partly because I found them interesting.
  29. Ms Sergides' arguments

  30. Ms Sergides' arguments were these.
  31. The circumstances of the claimant's case were within the scope of article 1 of protocol 1. Housing benefit was not a contributory benefit. The Court of Appeal had decided that this article was limited to contributory benefits in R (on the application of Carson and Reynolds) v Secretary of State for Work and Pensions [2003] 3 All England Law Reports 577. But this had now been overtaken by the decision of the European Court of Human Rights in Koua Poirrez v France (Application 40892/98 judgment on 30 September 2003).
  32. The circumstances of the claimant's case were also within the scope of article 8. I was invited to follow the approach to this issue that I had taken in a number of cases and to distinguish the authorities relied on by the Secretary of State.
  33. Article 14 applied in conjunction with either of those articles. The claimant's chosen comparator was a person required to live in a bail hostel as a condition of bail. She was treated differently from that comparator. The difference was based on a status. There was no legitimate ground for the difference.
  34. I was invited to add words to remove the discrimination by way of interpretation under section 3 of the Human Rights Act 1998. Failing that, I should declare that regulation 5(8B)(c)(i) was not made with statutory authority.
  35. Ms Demetriou's arguments

  36. Ms Demetriou's arguments were these.
  37. The circumstances of the case were not within the scope of article 1 of Protocol 1. I was bound by the decision of the Court of Appeal in Carson and Reynolds.
  38. The circumstances of the case were not within the scope of article 8. My previous approach to this issue was wrong. I should follow R (on the application of Douglas) v Tyneside Metropolitan Borough Council [2004] 1 All England Law Reports 709 and R (on the application of Erskine) v London Borough of Lambeth and the Office of the Deputy Prime Minister [2003] EWHC 2479 (Admin).
  39. Different bail conditions did not create a different status for the purposes of article 14. Being required to live with her sister was not a personal characteristic of the claimant.
  40. Any difference was justified as representing clear distinctions that were easy for the housing benefit officials to apply.
  41. If I rejected all those arguments, I was invited to interpret the regulation 5(8B)(c)(i) in order to remove the discrimination and not to decide that it was made without statutory authority.
  42. Where was the claimant's home?

  43. In reply to Ms Demetriou's arguments, Ms Sergides pointed out that much of their arguments was at cross purposes. She was arguing for the protection of the claimant's home at her council dwelling, whereas Ms Demetriou's argument assumed that her home was with her daughter.
  44. I have considered the claimant's case both in respect of both dwellings. I have decided that it fails whichever is the claimant's home for the purposes of housing benefit. I deal first with the claimant's case that her home is her council dwelling. I then deal with the case on the assumption that her home is with her daughter.
  45. The doctrine of precedent

  46. The first issue I have to consider is how our domestic doctrine of precedent relates to the operation of the Human Rights Act 1998.
  47. The European Court of Human Rights does not operate a doctrine of precedent, although it only departs from previous decisions if there are cogent reasons: see Cossey v United Kingdom (1990) 13 European Human Rights Reports 622. Any other approach would be incompatible with the nature of the Convention as a living and developing instrument that takes account of changing conditions: see Tyrer v United Kingdom (1978) 2 European Human Rights Reports 1.
  48. The domestic courts, on the other hand, operate a hierarchical doctrine of precedent, in which courts are bound by the operative reasoning and decisions of higher courts.
  49. There is a problem with applying the strict domestic doctrine under the Human Rights Act. The reason lies in section 2(1) of the Act. This provides that courts and tribunals 'must take into account any' relevant Strasbourg jurisprudence. How is that statutory duty reconciled with, or accommodated by, the domestic doctrine? The higher courts have yet to answer this question.
  50. One possible answer is that the statutory duty must be applied within the domestic doctrine, so that I must follow decisions of the higher courts in preference to conflicting Strasbourg authority. But that renders section 2(1) redundant for all but the highest courts, the Court of Appeal or Court of Session and the House of Lords. That provision only requires that I take the jurisprudence into account. It does not require that I apply it: see Lord Justice Laws in Gough v Chief Constable of the Derbyshire Constabulary [2001] 4 All England Law Reports at paragraph 32. But it is an empty duty if it is entirely overridden by the doctrine of precedent.
  51. Another possible answer is that section 2(1) overrides and displaces the doctrine in all issues arising under the Human Rights Act. This would lead to no greater uncertainty than is inherent in the Strasbourg approach that a decision is binding unless and until cogent reasons, such as changing conditions, justify departing from it. It would, though, prevent the domestic courts developing authority that departs from the Strasbourg authorities. And it is implicit in section 2(1) that those authorities are not necessarily binding they only have to be taken into account.
  52. Neither of those answers is satisfactory for the reasons I have given. There must be (to borrow a useful phrase) a third way. My suggestion is this. As issues arise before the domestic courts and tribunals for the first time, the starting point for consideration is the Strasbourg jurisprudence, but it is not binding. The higher courts will eventually decide how each Convention right should be developed in domestic law. They will take account of the Strasbourg jurisprudence and will, no doubt, usually follow it. Those decisions of the higher courts will then be binding for the time being. But the duty under section 2(1) allows the lower courts and tribunals to respond more quickly over time to changing conditions and developing Strasbourg jurisprudence without waiting for those decisions to be overruled under the normal doctrine of precedent. This can be accommodated within the language of precedent as allowing the courts to distinguish the earlier, higher decision.
  53. On examination, this is not really a third way. It is a realistic view of the way in which the doctrine of precedent operates in practice, with the power to distinguish allowing considerably greater freedom to lower courts and tribunals than the theory recognises as possible.
  54. This is not idle theorising. It is relevant to two issues that arise in this case.
  55. First, the recent Poirrez decision is in conflict with the decision of the Court of Appeal in Carson and Reynolds. Should I follow Carson or am I free to follow the more recent approach in Poirrez?
  56. Second, the domestic courts appear to me to have taken too narrow an interpretation of the Strasbourg decision in Petrovic v Austria (2001) 33 European Human Rights Reports 307. Should I apply the Petrovic reasoning as I understand it or the approach in the domestic cases?
  57. Analysis 1 home at her council dwelling

    The scope of article 1 of Protocol 1

  58. It is convenient to deal with this article first.
  59. The Court of Appeal in Carson and Reynolds has decided that it is limited to contributory benefits, but the European Court of Human Rights in Poirrez has decided that some non-contributory benefits are possessions for the purposes of this article.
  60. I have decided that I should follow the decision of the Court of Appeal for the following reasons.
  61. First, it is a recent authority and is, I believe, under appeal to the House of Lords. That will provide an opportunity for that court to give an authoritative ruling on the position in domestic law.
  62. Second, although the Poirrez case extends the law as it was previously understood, it is a new departure and too soon to justify distinguishing a recent decision of the Court of Appeal on the ground that conditions have changed.
  63. Third, although it is clear that the European Court has extended the scope of possessions to include some non-contributory benefits, I cannot derive from Poirrez any clear indications of the criteria that have to be applied in order to distinguish those non-contributory benefits that are possessions from those that are not. The Court set out the factors that it had taken into account in paragraphs 39 to 42 of its judgment. But they are too case-specific to allow any useful analogies to be drawn.
  64. The scope of article 8 - respect for the claimant's home

  65. The most helpful Strasbourg decision on this issue is Petrovic v Austria. The facts and the court's reasoning appear from the following four paragraphs:
  66. '26. In this connection the Court, like the Commission, considers that the refusal to grant Mr Petrovic a parental leave allowance cannot amount to a failure to respect family life, since Article 8 does not impose any positive obligation on States to provide the financial assistance in question.

    '27. Nonetheless, this allowance paid by the State is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children.

    '28. The Court has said on many occasions that Article 14 comes into play whenever "the subject-matter of the disadvantage constitutes one of the modalities of the exercise of a right guaranteed", or the measures complained of are "linked to the exercise of a right guaranteed".
    '29. By granting parental leave allowance States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision. It follows that Article 14 taken together with Article 8 - is applicable.'
  67. I have always read Petrovic as setting out the established legal test in paragraphs 28 and 29, with paragraph 27 containing the Court's reasons why on the facts of the case that test was satisfied. Ms Sergides cited some, if not all, of the decisions in which I had taken that approach. As I told her at the hearing, I derive no comfort from repetition, as that may have been merely the repetition of error. I do, though, derive some comfort from the fact that Mr Commissioner Levenson's reasoning in CIS/4320/2002, paragraph 50 is consistent with my approach. On this basis, the provision of financial assistance to allow a claimant to obtain and maintain a home is a way of showing respect for a claimant's home.
  68. However, in two recent decisions the Court of Appeal and the High Court have put more emphasis on paragraph 27 of Petrovic.
  69. I put to Ms Demetriou that there was a difference between a legal test and the factors that determined whether the test was satisfied. She agreed, but argued that 'scope of the provision' or the other formulations of the test were not by themselves sufficiently specific to allow the test to be applied. Ms Sergides agreed. So do I. But that is not a reason for elevating the factors that were determinative in one particular case into generally applicable criteria.
  70. The cases I refer to are R (on the application of Douglas) v Tyneside Metropolitan Borough Council and R (on the application of Erskine) v London Borough of Lambeth and the Office of the Deputy Prime Minister [2003] EWHC 2479 (Admin). Both were discussed at the hearing.
  71. The issue in Douglas was whether the claimant was discriminated against under article 2 when read in conjunction with article 14. Article 2 provides that
  72. 'No person shall be denied the right to education. '

    The claimant was denied a loan on the ground that he exceeded the maximum age at which one was payable (55). Nevertheless, he was able to complete his studies. The Court of Appeal decided that article 2 applied to higher education, but that the loan arrangements were not within the scope of that article. Access to education might be more difficult without a loan, but it was not impossible, as the case showed. The Secretary of State's argument was based, as was Ms Demetriou's, on the wording of paragraph 27 in Petrovic. Lord Justice Scott Baker, who gave the only judgment, accepted that there was force in this argument and that the factors in paragraph 27 were important considerations in Petrovic (paragraph 56), emphasising that the 'right of access is not necessarily affected by the absence of a loan' (paragraph 60). Despite this, I can find nothing in the judgment to suggest that the factors used were intended to displace or define exhaustively the tests set out in paragraph 28 and 29 of Petrovic.

  73. The issue in Erskine was whether there was discrimination between tenants of public and private landlords in the enforcement procedures for unfit accommodation. The real argument underlying the case appears to be who should bear the cost of installing some additional electricity sockets in the claimant's kitchen. The argument was based on article 14 when read in conjunction with article 8. Mr Justice Mitting accepted that Petrovic 'provides a modern and reliable statement of what is required to engage Article 14' but identified the issue as whether the legislation in question had 'as its purpose, the furthering of a right which is in fact guaranteed by the Convention' (paragraph 33). The analysis of that legislation showed that the purpose of the legislation was 'to protect and promote public health, and to improve the condition of low cost housing stock' (paragraph 43).
  74. In view of the emphasis on the purpose of the legislation, I have considered the purpose of the housing benefit legislation in relation to a claimant's home, as understood for the purposes of article 8. The most authoritative domestic decision on the meaning of home in this article is Harrow London Borough Council v Qazi [2003] 4 All England Law Reports 461. The House of Lords there emphasised that the right to respect for a home is concerned with privacy in accommodation ('an Englishman's home is his castle') or enjoyment of a home free from interference, and not with accommodation as such. Lord Hope (paragraph 70) referred to the right
  75. 'as one which is directed in essence to his right to be respected by the public authorities in the enjoyment of his privacy'.

    Lord Millett (paragraph 89) saw it as

    'an important aspect of his dignity as a human being, and it is protected as such and not as an item of property.'

    Finally, Lord Scott (paragraph 120) identified the object of article 8(1) as

    'home life in all its aspects: privacy, family, home, correspondence.'
  76. These statements are in line with the European Convention as a guarantor of civic rights, not social or economic rights. They are also in line with the approach of the higher domestic courts. My impression on reading their decisions is that they are interpreting the Convention rights as a set of basic, but limited, constitutional rights that provide a minimum (and minimal) foundation for the rule of law. They have not gone further and developed wider criteria for social legislation that domestic law must satisfy in order to be compatible with the Convention rights.
  77. I find the distinction between civic rights and social or economic rights difficult to draw in practice. Ms Sergides provided a useful collection of authorities on the scope of this right. They seem to me at least to stretch the concept of privacy. I reject Ms Demetriou's argument that the removal of housing benefit must be outside the scope of article 8.
  78. Taking Lord Hope's language first, I notice that the passage I have just quoted continues:
  79. 'removal from his home is bound to interfere with his enjoyment of that right at least to some extent.'

    I accept Ms Sergides' argument that the termination of housing benefit from the claimant in the circumstances of this case had the inevitable effect that she would be unable to retain the tenancy of her council dwelling. Housing benefit provides income support for the housing costs of tenants. Withdrawing that support from the claimant for practical purposes involved the loss of her tenancy. Surely there is no greater invasion of a person's privacy within a home or enjoyment of that home than to take that home away whether directly or indirectly.

  80. Turning to Lord Millett's language, it is relevant to consider the wider purposes of housing benefit. At the micro level, it supports a tenant by contributing to the cost of housing. At a macro level, it encourages the existence and expansion of a rental sector and the potential for charging a rent that allows the provision and maintenance of homes of an appropriate standard. People can always rise above their circumstances, but it is difficult to maintain human dignity while sleeping rough or living in a slum. With respect to Mr Justice Mitting in Erskine, I do not understand why the state of accommodation cannot in principle be relevant to respect for a person's home.
  81. I do not consider that this conclusion elevates the right to respect for the claimant's home into the protection of a property right, which is the proper subject of article 1 of Protocol 1. The claimant lost her council home that she wanted to maintain through a combination of her disability, which prevented her going to a bail hostel, and a condition imposed on her grant of bail, which allowed her freedom at a time when she was still innocent in law. That surely brings the case within the ambit of a Convention right that is concerned to protect her privacy and dignity as a human being.
  82. Article 14 - different treatment

  83. On the basis that the case is within the scope of article 8, how does article 14 apply?
  84. Ms Sergides argued that the claimant had to be compared with someone who was subject to bail conditions, but was required to live in a bail hostel. In contrast, the claimant was subject to bail conditions, but required to live at a specified address that was not a bail hostel. There is clearly a difference in the way that the claimant was treated when compared to her chosen comparator.
  85. I am also prepared to assume that this difference is a ground or status for the purposes of article 14.
  86. Article 14 - justification

  87. It is at this stage, on my analysis, that the claimant's case fails.
  88. The Court of Appeal considered regulation 5(8B) in Waite v London Borough of Hammersmith and Fulham and the Secretary of State for Social Security (21 March 2002) [2002] EWCA Civ 482. The case concerned a person who was ordered to be detained at Her Majesty's Pleasure. He was then released on licence, but his licence was withdrawn pending consideration of his case by the Parole Board. At the time when his licence was withdrawn, he was living in rented accommodation and receiving housing benefit. His circumstances did not fall within regulation 5(8B). He argued that in this respect there was a breach of his Convention right in article 8 when read in conjunction with article 14. The circumstances of that case are very different from those of the claimant in this case. The case in nonetheless relevant for what the Court had to say about regulation 5(8B).
  89. The Court dealt with the case on the assumption that the circumstances of the case were within the scope of article 8. It decided that there was no discrimination between those subject to detention at Her Majesty's Pleasure and those within regulation 5(8B). The only judgment was given by Lord Justice Laws. The first relevant passage from the judgment refers to the 1995 amendments to regulation 5 on which the Court had affidavit evidence:
  90. '23. The initial policy decision leading to the 1995 amendments was that an appropriate balance was not struck by a 52 week period which paid no regard to the reason for absence. A lesser 13 week period which paid no regard to the reason for absence was introduced in its place. However, there was a recognition that certain categories of person should continue to benefit from the extended 52 week period even though this conferred on them a significant benefit, left properties unoccupied for a long period and imposed a significant burden on the taxpayer. The various categories inevitably involved some hard policy choices.'

    After quoting from the affidavit evidence, the judgment continues:

    '36. The extent to which the court should defer to the judgment of the democratic decision-maker in the context of the Convention rights has been the subject of a good deal of judicial consideration since incorporation on 2nd October 2000. It is, with respect, perhaps enough that I cite a well-known passage from the speech of Lord Hope . The reference is to the case of Kebilene [2000] 2 AC 326 at 381 as follows:
    "In this area difficult policy choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judicial will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involved questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection."
    '37. Here, in my judgment, the distribution of state benefit lies particularly within the constitutional responsibility of elected Government. In my judgment, however, there is nothing to suggest that the Secretary of State did not have well in mind the social implications of the distribution which he was to make. It is plain that he considered, and advisedly considered, the position in which different categories of potential beneficiaries found themselves.'

    I have emphasised the relevant passages. The deference shown to social and economic choices that are enshrined in legislation has been a feature of decisions by the Commissioners and the courts. The Court's reasoning in Waite is consistent with those authorities. Its reasoning is as applicable to the circumstances of this case as it was to the circumstances before it. I follow and apply that decision.

  91. The result of following Waite is that the difference in treatment between those required to live in a bail hostel and those required to live elsewhere is within the margin of judgment or deference that is allowed to the legislature. There is a difference in treatment between them, but no discrimination.
  92. Analysis 2 home with the claimant's daughter

  93. I now deal with the claimant's case on the assumption that her home is with her daughter. I can deal with the case on this basis more shortly.
  94. If the claimant's home was with her daughter, she was not in a relevantly comparable situation with her chosen comparator.
  95. A bail hostel cannot be a person's home for housing benefit purposes. There is express provision to that effect in regulation 5(4A). Once the bail condition comes to an end, the person has no choice but to move on. That justifies the public purse continuing to provide financial support for the dwelling to which the person on bail may return.
  96. There is no equivalent to regulation 5(4A) for those who are required as a condition of bail to reside at a specified address. A person residing at a specified address may establish a home at that address. And if the person pays rent for the accommodation there, housing benefit may be payable. (If it is, it cannot be paid for two dwellings, as bail conditions are not within the exhaustive list of circumstances in which this is possible.) When the bail condition comes to an end, the person may remain in that home until new accommodation can be found. Throughout this process, there is the potential for the claimant to receive financial support in respect of the current home.
  97. In so far as this analysis gives rise to differences of treatment, the answer again is to be found in the Court of Appeal's analysis in Waite.
  98. Summary

  99. Whether the claimant's home is her council dwelling or her daughter's home, the arguments put on her behalf fail, ultimately because the differences in treatment between claimants in different circumstances are within the province of the legislature, not the courts or tribunals.
  100. I dismiss the appeal.
  101. Signed on original Edward Jacobs
    Commissioner
    24 February 2004


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