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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Secretary of State for Work and Pensions v Hockley & Anor [2019] EWCA Civ 1080 (24 June 2019) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1080.html Cite as: [2019] PTSR 2246, [2019] WLR(D) 351, [2019] HLR 40, [2020] 2 All ER 20, [2019] EWCA Civ 1080 |
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ON APPEAL FROM UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
Mrs Justice Knowles, Upper Tribunal Judge Jacobs, Upper Tribunal Judge Hemingway
CH/1987/2016
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE HICKINBOTTOM
and
LADY JUSTICE NICOLA DAVIES DBE
____________________
THE SECRETARY OF STATE FOR WORK AND PENSIONS |
Appellant |
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- and - |
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(1) RACHEL HOCKLEY (2) NUNEATON AND BEDWORTH BOROUGH COUNCIL |
Respondents |
____________________
Tom Royston (instructed by Child Poverty Action Group) for the First Respondent
Alison Meacher (instructed by Nuneaton and Bedworth Borough Council) for the Second Respondent
Hearing date: 21 May 2019
____________________
Crown Copyright ©
Lady Justice Nicola Davies:
Regulation B13
"Determination of a maximum rent (social sector)
B13.
(1) The maximum rent (social sector) is determined in accordance with paragraphs (2) to (4).
(2) The relevant authority must determine a limited rent by
(a) determining the amount that the claimant's eligible rent would be in accordance with regulation 12B(2) without applying regulation 12B(4) and (6);
(b) where the number of bedrooms in the dwelling exceeds the number of bedrooms to which the claimant is entitled in accordance with paragraph (5), reducing that amount by the appropriate percentage set out in paragraph (3); and
(c) where more than one person is liable to make payments in respect of the dwelling, apportioning the amount determined in accordance with sub-paragraphs (a) and (b) between each such person having regard to all the circumstances, in particular, the number of such persons and the proportion of rent paid by each person.
(3) The appropriate percentage is
(a) 14% where the number of bedrooms in the dwelling exceeds by one the number of bedrooms to which the claimant is entitled; and
(b) 25% where the number of bedrooms in the dwelling exceeds by two or more the number of bedrooms to which the claimant is entitled.
(4) Where it appears to the relevant authority that in the particular circumstances of any case the limited rent is greater than it is reasonable to meet by way of housing benefit, the maximum rent (social sector) shall be such lesser sum as appears to that authority to be an appropriate rent in that particular case.
(5) The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant's dwelling as their home (and each person shall come within the first category only which is applicable)
(a) a couple (within the meaning of Part 7 of the Act);
(b) a person who is not a child;
(c) two children of the same sex;
(d) two children who are less than 10 years old;
(e) a child,
and 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 each of them is)."
Social policy background
The facts
The decision of the Upper Tribunal
"9. The regulation operates to reduce the amount of the claimant's otherwise eligible rent by reference to the number of bedrooms in excess of the claimant's entitlement. Paragraph (5) provides that that entitlement depends on 'the categories of person' occupying the dwelling as their home. That depersonalises the assessment so that the characteristics of the actual individuals concerned are irrelevant. The first task in applying paragraph (5), therefore, is to identify the individuals who occupy the dwelling as their home and then to place them into the categories listed. That was not in dispute.
10. The argument for the Secretary of State and the local authority was that the next task is to identify the number of bedrooms in the dwelling without reference to the categories of person who would have to occupy them.
12. First, to us that is not the natural meaning of the language of paragraph (5). On Mr Brown's approach, the paragraph sets up a calculation by reference to the actual occupants as classified into particular categories but then ignores the inevitable characteristics of the categories, such as that they consist of two people or people of a particular age. The paragraph provides that the claimant is entitled to a bedroom for each category. The natural expectation of that language is that the room would be a bedroom for the persons bearing the characteristics of that category, not a room that ignored those characteristics. This leads on to our second reason. If the legislation were to produce the result that Mr Brown and Ms Meacher contended for, it would need much clearer language to show that it was necessary to sever the claimant's entitlement from the characteristics of the categories as set out in paragraph (5). The language does not do that."
Relevant decisions of the courts or the Upper Tribunal
Secretary of Work and Pensions v Nelson and Others [2014] UKUT 0525 (AAC)
"19. When an ordinary or familiar English word such as 'bedroom' is used in a statutory test and is not defined in the legislation:
i) the test should not be re-written or paraphrased, and
ii) the ordinary or familiar word should be construed and applied in its context having regard to the underlying purposes of the legislation.
The decision of the House of Lords in Utratemp Ventures Ltd v Collins [2002] 1 AC 301 which was relied on by the Secretary of State is an example of this well established approach.
21. It follows that the underlying purposes of the relevant test using such language and the context in which the language is used are important and often determinative factors to be taken into account in determining whether on the facts of a given case the relevant test is satisfied.
The application of this approach to Regulation B13
24. The underlying purpose is to limit the housing benefit entitlement of those under occupying accommodation and the language as a whole shows that the trigger for a reduction is set by reference to the entitlement of a tenant to bedrooms for the occupation of the people listed in sub-paragraphs (5) and (6). Sub-paragraphs (7) to (9) set out how that entitlement is to be assessed.
27. In our view, when read as a whole Regulation B13 provides that in determining whether there is under occupancy that triggers a reduction in housing benefit:
i) the use or potential use of the relevant room or rooms can be by any of the people listed in sub-paragraphs (5) and (6),
ii) the impact of this is that it has to be considered whether the relevant room or rooms could be used by any of the listed people, and
iii) designation or choices made by the family as to who should occupy rooms as bedrooms or how rooms should be used is unlikely to have an impact on the application of the regulation.
(We have not expressed point (iii) in absolute terms because it was not the focus of argument in this case and without such focused argument we do not consider that it would be appropriate to say that such designation or choice can never be relevant and the qualification made in paragraph 29 below is relevant.)
28. As to the points made in paragraph 27(ii) and (iii). It is in our view clear:
i) that the underlying purpose of Regulation B13 would be undermined if this was not the case, and
ii) that purpose and that interpretation of the regulation shows that the test is focused on the availability of rooms that could be used as bedrooms by any of the listed people and thus essentially the assessment of a property when vacant; rather than how it is actually being used from time to time. It seems to us that this is so because a part of the underlying purpose must be to free up homes that are being under occupied so that they can be used by others with an entitlement to the number of bedrooms in the property or to encourage the existing occupiers to make under occupied bedrooms available to others.
31. When an issue arises as to whether a particular room falls to be treated as a bedroom that could be used by any of the persons listed in Regulation B13 (5) and (6) a number of case sensitive factors will need to be considered including (a) size, configuration and overall dimensions, (b) access, (c) natural and electric lighting, (d) ventilation, and (e) privacy.
60. As already indicated under the heading 'The application of this approach to Regulation B13' we do not agree that the language or purposes of the regulation supports the conclusion that under it a bedroom must generally be reasonably fit for full-time occupation of this nature, as opposed to short-term or irregular occupation as a visitor or overnight guest. Rather, as we have said, we consider that the language and purposes of the regulation point firmly in favour of the view that each room should be assessed by reference to occupation by any of the persons referred to in sub-paragraphs (5) and (6) of Regulation B13."
Secretary of State for Work and Pensions v City of Glasgow Council and IB [2017] CSIH 35
"19. There was no real dispute in this case about the purpose of the Regulations and we consider that purpose would be frustrated if a tenant who rented what was objectively classified, for example, as a three bedroom property could by his use or unilateral structural changes to the property change the classification to a two or one bedroom property.
20. In our opinion the classification and description of a property used as a dwelling is a matter of fact to be determined objectively according to relevant factors such as size, layout and specification of the particular property in its vacant state. That classification cannot be changed except by structural alterations made with the landlord's approval which have the result of changing the classification of the property having regard objectively to its potential use in a vacant state. Thus the classification of a property as having one or more bedrooms does not change depending on the actual needs of the occupants or how they use the rooms for whatever reason from time to time. ...
21. The issue was raised directly at tribunal level in a number of cases. A three judge panel was convened in SWP v Nelson against a background that there were a number of different approaches taken by First-tier Tribunals to the interpretation of the word "bedroom" in Regulation B13. We consider that there is merit in the approach of the Upper Tribunal to the extent that they recognised that the assessment should focus on the property when vacant rather than how it is actually being used from time to time (paragraph 28) and in their practical approach to considering what may be relevant factors illustrated in paragraphs 30 to 33. To the extent however that the Upper Tribunal entertained the possibility that the designation or choices made by family members as to who should occupy bedrooms or how rooms should be used had any relevance, we do not agree."
R (Carmichael & Others) v Secretary of State for Work and Pensions [2016] UKSC 58
"15. The proper approach to justification in cases involving discrimination in state benefits is to be found in the Grand Chamber's decision in Stec v United Kingdom 43 EHRR 47.
16. The court repeated the well-known general principle that:
'A difference of treatment is, however, 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.' (para 51)
18. The same test was applied by Lord Neuberger of Abbotsbury in R (RJM) v Secretary of State for Work and Pensions [2009] AC 311 . He concluded, at para 57:
'The fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable.'"
At [32] and following Lord Toulson stated:
"32. The fundamental reason for applying the manifestly without reasonable foundation test in cases about inequality in welfare systems was given by the Grand Chamber in Stec (para 52). Choices about welfare systems involve policy decisions on economic and social matters which are pre-eminently matters for national authorities.
33. The claimants seek to counter that point by arguing that this case involves no challenge to a decision of that kind. They have no quarrel with the policy of Reg B13. Their complaint is at a lower level and involves no question of economic or social judgment. Their complaint is simply that the manner of implementation of the policy discriminates against a vulnerable group, and that it is right to require weighty reasons to justify the discrimination rather than the broader policy itself.
34. Rejecting that argument, Lord Dyson MR said (paras 54 to 55) that although the precise detail and scope of the Regulations may not be matters of high policy in themselves, they formed an integral part of a high policy decision and could not be dismissed as technical detail; that the law in this area would suffer from undesirable uncertainty if the test were to vary according to whether the challenge were to high level policy or lower level policy; and that there was no hint of such a distinction in the European or domestic case law."
At [41] Lord Toulson concluded:
"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."
The appellant's case
i) Objectively identify the number of bedrooms in the dwelling, it is accepted in this case that there are three;
ii) Pursuant to the criteria set out in B13(5) interpret the size criteria.
The first respondent's case
i) The use of proxies is an inevitable part of social security legislation;
ii) For the purpose of the Regulation B13 calculation the property has to be considered in a vacant state;
iii) The UT was correct to find that B13(5) depersonalises the assessment to be performed such that the characteristics of the actual individuals concerned are irrelevant.
Discrimination
The second respondent
Discussion
Conclusion
Lord Justice Hickinbottom:
Lord Justice Longmore: