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Upper Tribunal (Administrative Appeals Chamber)
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Cite as:  AACR 16,  UKUT 301 (AAC)
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DECISION OF THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
The claimant's appeal to the Upper Tribunal is disallowed. The decision of the Wakefield First-tier Tribunal dated 26 January 2010 did not involve any error on a point of law and accordingly stands.
REASONS FOR DECISION
1. The tribunal was concerned with the local authority’s decision notified on 5 August 2009 that the claimant was not entitled to housing benefit on her claim of 28 April 2009. Since housing benefit and council tax benefit had apparently been awarded with effect from 13 April 2009 on 26 June 2009, the decision must in substance have been a revision of that initial decision. The ground given for non-entitlement was that she had owned the dwelling in question within the previous five years and it had not been shown that she could not have continued to occupy the dwelling without relinquishing ownership. Accordingly, under regulation 9(1)(h) of the Housing Benefit Regulations 2006 she was to be treated as not liable to make payments in respect of the dwelling.
2. In the letter of appeal dated 12 August 2009, the claimant’s then representative, from Worklink – Dewsbury, explained the background as follows:
“[The claimant] would like you to consider fully that she could not have continued to occupy the dwelling without relinquishing ownership. In your decision, you do not state why her reasons for selling are not sufficient.
[The claimant] and her husband [H] got married in 1981. By 1993 the relationship had broken down irretrievably and the couple continued to live separate lives in the same home. [H] moved out in 1994 (ordered by law). In August 1998, the divorce was finalised. [The claimant] was taking care of the children and the home and the court ordered that she should continue to occupy it. It was a few years after that [the claimant] took on some debts whilst in work, to carry out home improvements; mainly to the kitchen and bathroom.
[The claimant] suffers from long term depression, and in 2007 she was off work for 12 months receiving sick pay then Incapacity Benefit. Through the CAB she negotiated with creditors (the financial statement has been sent to you as evidence). In summer 2007, both [the claimant and H] agreed to put the property on the market but were not made any serious offers (all £20,000 below the asking price).
Eventually, due to the stress and burden placed on her by her complicated debts, she reluctantly agreed to sell her interest in the property to her ex-husband in October 2007. I enclose evidence of a debt owed to Nationwide of £15,532.98 where a company called Shoosmiths took County Court action and were granted an interim charging order. This charging order, if made absolute, would therefore have affected her ex-husband’s interest also as they were then joint owners. At that time she felt that there was no option but to sell, in order to allow herself to pay this off without involving her ex-husband.
[Details were then given of how the claimant had spent the proceeds of £55,000, and that she had gone back to work, but become ill again in February 2009 and had to reclaim incapacity benefit]
[The claimant] sold her share as an absolute last resort. She would have preferred to keep it as a form of pension and was hesitant about having her ex-husband as her Landlord when she would have preferred a complete clean break, financially and emotionally. She could not, at that time, see any way of settling debts and bills and remaining in the family home which she vested time and money, and her own effort, into improving. Although suffering from depression is not an excuse, it is a factor that should be taken into consideration as to why [the claimant] was in pursuit of a financial clean slate together with some stability by remaining in her own home. [The claimant] was not in a fit state to rent anywhere unfamiliar at that time.”
3. Some of that information had already been made known to the local authority in the course of an unsuccessful claim for housing benefit and council tax benefit in 2007. The authority had obtained a copy of the Land Registry entries, showing H on the proprietorship register as sole proprietor with absolute title from 5 September 2007. There was also evidence that transfer of the claimant’s interest, subject to a liability on mortgage including additional lending by the Halifax, took place on 28 August 2007.
4. Following the provision of further information about the disposal of the proceeds of sale, the view taken by the local authority representative in the written submission to the tribunal and in a covering letter dated 6 October 2009 was that, although regulation 9(1)(h) was still relevant, more weight should be given to regulation 9(1)(c)(i):
“(1) A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where—
(c) his liability under the agreement is—
(i) to his former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners; or
(ii) to his partner’s former partner and is in respect of a dwelling which his partner and his partner’s former partner occupied before they ceased to be partners;”
In my view it makes no difference whether or not there had been a new decision on revision based on regulation 9(1)(c)(i) rather than regulation 9(1)(h), as suggested in the letter of 6 October 2009. There would have been no change in the outcome decision as a result and there was nothing to stop the local authority from relying on additional parts of regulation 9(1) in its submissions about the decision that the tribunal should make.
5. Attached to the written submission was a copy of the decision of Mrs Commissioner Jupp, as she then was, in case CH/2207/2006, in which she briefly discussed the interpretation of the predecessor of regulation 9(1)(c) in the Housing Benefit (General) Regulations 1987. I shall come back to that decision below.
6. In response, the claimant’s representative put in a submission that regulation 9(1)(c)(i) was inconsistent with article 14 of the European Convention on Human Rights in conjunction with her article 8 right to respect for her private life and home or article 1 of Protocol 1, in that it disproportionately affected women. Women were more likely to be given an interest in the matrimonial home on divorce and, if forced to sell to the ex-spouse, would apparently be automatically excluded from eligibility for housing benefit no matter how genuine the circumstances or how long ago they ceased to be partners. Although it was accepted that regulation 9(1)(c)(i) had a legitimate aim, it was submitted that its exclusions were disproportionate to that aim and that the claimant should be able to rely on regulation 9(3). In its express terms, regulation 9(3) only applies to cases falling under regulation 9(1)(e) or (g) (liability to a company or trust with which the claimant has a connection and former non-dependant of another resident in the dwelling) and takes a claimant out of those provisions if it is shown that the liability was not intended to be a means of taking advantage of the housing benefit scheme.
7. At the hearing on 26 January 2010 the claimant gave some more details of the property adjustment order made on divorce, which she said had been a Martin order. As I understand it, that meant that the former matrimonial home was to be held jointly on trust for the claimant’s sole use during her lifetime or until her remarriage or voluntary removal from the property, and thereafter to be held on trust for sale for her and H jointly. She also gave details of how the mortgage interest and capital repayments had in practice been made down to 2007 and of why H agreed to buy out her interest and allow her to stay as a tenant.
8. The First-tier Tribunal disallowed the appeal. In its statement of reasons it found that the claimant’s situation fell squarely within regulation 9(1)(c), because her liability was to her former husband and was in respect of a dwelling that they had occupied before they ceased to be partners. It was stated that H was a former partner and that it did not matter whether or not there had been other former partners during the relevant period. On the human rights argument, it was stated that a breach of the legislation could not be found on the basis of a general assertion of a disproportionate effect on women without any evidence in support.
9. Permission to appeal was granted to the claimant by Upper Tribunal Judge Lane, on the basis that the tribunal may have given insufficient reasons for rejecting the human rights argument. She invited the Secretary of State for Work and Pensions to become a party to the appeal, which invitation was taken up. Following a round of written submissions, Judge Lane directed an oral hearing and the production of written skeleton arguments. That hearing took place at Doncaster County Court on 14 December 2010. The claimant was represented by Mr T Royston of Kirklees Law Centre. Kirklees Metropolitan Borough Council was represented by Mr D Pearson, solicitor, accompanied by colleagues from the authority. The Secretary of State was represented by Mr S Cooper, solicitor, instructed by DWP/DH Legal Services. I am grateful to all the representatives for wide-ranging submissions. I directed further submissions on 18 January 2011 on the question of whether the amending regulations that inserted the predecessor of regulation 9(1)(c) into the 1987 Regulations in January 1999 were invalid to that extent on the ground of a defect in the procedure by which the Social Security Advisory Committee (SSAC) agreed not to have the proposal for the amending regulations referred to it. I regret that those submissions and my consideration of them have taken so long.
10. I first address the interpretation of regulation 9(1)(c) free of any considerations as to validity or compatibility with the European Convention on Human Rights. Then I consider the issues of whether the provision with that meaning was validly made and whether it either has to be given a different interpretation or disapplied for inconsistency with a Convention right.
The meaning of regulation 9(1)(c) of the Housing Benefit Regulations 2006
11. What I say below applies as much to regulation 9(1)(c)(ii) as to regulation 9(1)(c)(i), but for simplicity I shall refer below only to a claimant, without each time mentioning the extension to a claimant’s current partner. The submission for the Secretary of State and the local authority was that the tribunal of 26 January 2010 was correct in law and that regulation 9(1)(c) applied to any former partner, no matter how long ago that status came to an end and no matter how many other partners either the claimant or the former partner had had in between. Mr Royston’s submission for the claimant was that it should have a narrower construction, to apply only to an immediate former partner, and that that required the liability of the claimant to make payments to the former partner to have arisen immediately on their ceasing to be partners. I cannot accept that submission.
12. I rather agree with Mr Royston that the decision in CH/2207/2006 does not provide any conclusive authority. The case was a strange one, in that in the unrepresented claimant’s appeal to the Social Security Commissioner he sought to challenge a decision on overpayment recoverability that had not in fact been under appeal to the tribunal below, while accepting that he was not entitled to housing benefit for the period in question, which had been the burden of the decision that the tribunal in fact dealt with. Nonetheless, the Commissioner, now Upper Tribunal Judge Jupp, obtained submissions on the application of what was then regulation 7(1)(c) of the 1987 Regulations to the circumstances where the claimant been away from the former matrimonial home for four years, living with another partner for at least some of that time, before returning to rent a room in the home owned by his ex-wife. She asked whether the provision should be construed narrowly, to exclude those circumstances. Paragraph 12 of her decision was as follows (correcting an obvious typing error):
“On the first point, as to whether `former partner’ is to be interpreted as meaning all former partners, the Secretary of State submits that by reference to section 6 of the Interpretation Act 1978, the phrase `former partner’ relates to all former partners. Section 6 states:-
`In an Act, unless the contrary intention appears—
(a) words importing the masculine gender include the feminine;
(b) words importing the feminine gender include the masculine;
(c) words in the singular include the plural and words in the plural include the singular.’
On consideration, I accept that the words `former partner’ must include all former partners. Had it been intended to limit this regulation to a claimant’s most recent partner, it would have been a simple matter to do so and to indicate a contrary intention, so that although the words `his former partner’ are in the singular, they must be taken to include the plural. This has the result that the claimant had no entitlement to HB.”
13. However, the mere adding of an “s” to the word “partner” would not seem necessarily to result in the position suggested on behalf of the Secretary of State in CH/2207/2006. Apart from the vanishingly rare cases of a tenancy being granted by a consortium of former partners or possibly by a number of former partners in a polygamous marriage, regulation 9(1)(c) must always refer to the particular person to whom the claimant is liable to make payments. The use of the singular is therefore appropriate. The question to be answered in the circumstances of CH/2207/2006 was then whether the reference to “his former partner” in its context was restricted to the most recent partner. In my judgment, Judge Jupp’s instinct was entirely right that the use of such general words and the absence of some specific restriction meant that that could not be the result. But that was not a matter of a contrary intention not being expressed to what the Interpretation Act would otherwise have required, but a matter of giving the words their proper meaning in context. Judge Jupp’s shortly expressed conclusion, not necessary to her decision and based on limited argument, would not, though, have stood in the way of my deciding the other way after consideration of the much fuller argument in the present case.
14. Mr Royston raised the particular point that if the drafter of the predecessor of regulation 9(1)(c) had intended the result argued for by the Secretary of State the position could have been made clear by using words like “any former partner of his” or “a former partner of his”. He submitted that to read the provision as having that meaning required the insertion of words like those and that that was a strong factor against such an interpretation. I disagree. Giving the words such a meaning is merely a spelling out of what is one of the possible ordinary meanings of “his former partner”. By contrast, Mr Royston’s submissions were in danger of requiring even more words to be inserted into the provision. I accept that a possible ordinary meaning of “his former partner” is that it refers to the person who has most recently had the status of partner of the claimant, but no longer does so. However, Mr Royston did not argue merely for that meaning, possibly because there had been no evidence before the First-tier Tribunal of whether the claimant had had anyone living with her as husband and wife (see the definitions of “partner” and “couple” in regulation 2(1)) since separating from H in 1993 or 1994 and he had not made any inquiries to her about that issue. Instead, he argued for the meaning being “immediate former partner”, in the sense of the liability to make payments to the former partner having arisen immediately on the parties ceasing to be a couple. That in my judgment is going beyond the mere spelling out of one of the possible ordinary meanings and could only be adopted if some other principle of interpretation required it.
15. One principle relied on was that applied by Mr Commissioner, now Upper Tribunal Judge, Jacobs in decision CH/716/2002. That case was to do with the predecessor of regulation 9(1)(h), which at the time excluded liability in respect of a dwelling that the claimant had previously owned except where the claimant showed that she could not have continued to occupy the dwelling without relinquishing ownership. An amendment from May 2001 restricted the operation of the regulation to five years from ceasing to be an owner, as is now reflected in regulation 9(1)(h). The Judge said that the provision was capable of two readings, one that it did not matter whether or not there had been continuity of residence and one that the provision only applied when the claimant had remained in occupation of the dwelling despite the change in ownership. He preferred the second, narrower, reading, as consistent with reading both parts of the provision as a whole and as producing a more rational result. But he continued:
“(c) It is consistent with the obvious policy underlying regulation 7(1). It is clearly designed to identify cases in which there is a risk of abuse of the housing benefit scheme. The categories may be drawn in a way that can produce rough justice. No doubt, that was based on a policy decision to err on the side of protection for the scheme rather than fairness in an individual case. However, given that the categories can produce rough justice, it is appropriate to give them the narrowest interpretation that is consistent with the policy of protecting the scheme. (d) It takes account of the other categories of exclusion in regulation 7(1). My preferred reading, if taken in isolation, undoubtedly excludes from its scope cases in which there is an obvious risk of abuse. For example, a claimant may have been out of occupation for only a few days rather than for a few years. However, the other categories will be sufficient to exclude those cases where there is an abuse. In particular, the case is almost certain to fall under regulation 7(1)(l) as an attempt to take advantage of the housing benefit scheme. There may be exceptional circumstances in which a sudden change of circumstances allows the claimant to occupy the dwelling shortly after selling it. If there is a genuine reason that shows that advantage is not being taken of the scheme, there is no need for the claimant to be excluded from entitlement. So, the second reading of regulation 7(1)(h) produces an interpretation that takes account of the operation of the exclusions as a whole.”
16. Mr Royston said that the same principle applied to regulation 9(1)(c), especially as it was not one of the sub-paragraphs that was subject to regulation 9(3) and had no time restriction as in regulation 9(1)(h). Thus, it could on the Secretary of State’s interpretation apply although the parties had ceased to be partners 30 or 40 years ago, regardless of there being no intention to take advantage of the housing benefit scheme. He submitted that very rough justice indeed was involved, which required his favoured narrow construction to be given.
17. I accept that that is a factor to be taken into account, but it is important both that Judge Jacobs was choosing between two approaches to the ordinary meaning of the provision in question and that he did not under his head (c) say that the narrowest interpretation was to be taken, but the narrowest interpretation consistent with the policy of protecting the scheme. As he himself put it later in paragraph 25 of decision CH/1205/2003:
“25. Regulation 7 [now 9] is an anti-abuse provision. It excludes two categories of cases from housing benefit. One category consists of cases in which the housing benefit scheme is being abused. The other category consists of cases in which there is a risk that the housing benefit might be abused. In this category, actual abuse does not have to be shown. The risk and the difficulties of proof justify a provision that is not limited to actual abuse.”
There is therefore no inconsistency with Judge Jupp’s approach in paragraph 15 of CH/2207/2006 that “this is an anti-avoidance provision and it would be wrong to give it an artificially narrow construction”. In my judgment, to interpret regulation 9(1)(c) as applying only to the immediate former partner either in Mr Royston’s sense or in the sense of the most recent former partner would be going beyond merely adopting the narrowest appropriate ordinary meaning into applying an artificially narrow meaning.
18. Mr Royston further stressed the importance of the context of the other categories of deemed absence of liability in regulation 9(1). The existence of those other categories has the relevance pointed out by Judge Jacobs in CH/716/2002, that a narrower interpretation of a category such as that in sub-paragraph (c) does not prevent instances of actual abuse of the scheme being picked up by sub-paragraph (a) (not on a commercial basis) or (l) (liability created to take advantage of the housing benefit scheme). Mr Royston submitted further that a common theme ran through the other sub-paragraphs that did not have the possible let-out under regulation 9(3) or a built-in time limit. He referred to sub-paragraphs (b) (liability to a person who resides in the dwelling and is a close relative), (d) (claimant responsible for a child of the person to whom she is liable), (f) (liability to a trustee of a trust of which her or her partner’s child is a beneficiary) and (i) (occupation of the dwelling is a condition of employment by the landlord). His submission was that in all those situations there was likely to be an active and close relationship between the tenant and the landlord and therefore likely to be a high risk of an abusive claim, so that for consistency with the context of regulation 9(1) as a whole sub-paragraph (c) should also be interpreted in a way that restricted it to situations in which there was likely to be such an active and close relationship. Mr Royston argued that that did not allow an interpretation that could apply to any former partner, no matter how long ago the partnership ceased to subsist and that there was no logical stopping place before a restriction to the immediate former partner either in his sense or in the sense of the most recent former partner.
19. I reject that submission. Mr Royston did not refer to sub-paragraphs (j) (wholly maintained by a religious order) or (k) (in residential accommodation, ie a care home or an independent hospital). When taken with sub-paragraphs (h) and (ha) about previous ownership of the dwelling by the tenant, it does not seem to me that all of the categories in regulation 9(1) beyond sub-paragraphs (a) and (l) can be described as covering situations where there is an active and close relationship that gives rise to a risk of an abusive claim. Rather, the categories cover a variety of situations where there was considered to be a sufficient risk of a claim being allowed on the basis of a liability that ought not to be covered by the housing benefit scheme to take the circumstances out of the general and difficult arguments about a commercial basis or an intention to take advantage of the housing benefit scheme. In some of those situations the risk does arise from the nature of the current or recent relationship between the tenant and the landlord. In some, the risk arises from other factors, as in sub-paragraphs (h), (ha), (j) and (k). Sub-paragraph (c) is somewhere in the middle. It is notable that it does not cover any liability to a former partner (however defined), but only a liability in respect of a dwelling which had been occupied by the landlord and tenant when they were partners. Thus, in my judgment there is not anything definite enough in the context of regulation 9(1) as a whole to indicate that the scope of sub-paragraph (c) must be restricted as Mr Royston suggests. Rather, it seems to me that it might represent a situation similar to those in sub-paragraphs (e), (f) and (i), where there is a likelihood of rights arising under some other legal regime which might entitle the tenant to occupy the dwelling in question without being liable to pay for that occupation, or at least not to the same extent. If the partners have been married and separated or divorced, there will commonly be court orders regulating the rights in the former matrimonial home, such as the one made in the present case giving the claimant the right to occupy the former matrimonial home. The effect of such an order would survive any cohabitation by the claimant with a subsequent partner or partners. If the partners have not been married, the same legal regime does not apply, but there is the possibility of rights to occupation after separation arising either through prior express agreements or through the principles of resulting or constructive trusts. There is also plainly an argument that unmarried partners should not be in a more advantageous position in relation to housing benefit after separation than if they had been married.
20. Mr Royston finally referred to the policy intention, as shown, according to him, in the Housing Benefit and Council Tax Benefit Circular HB/CTB A1/99 issued on behalf of the Secretary of State in January 1999. Paragraph 14 was as follows:
“Where a couple, whether married or unmarried, separate and the one remaining in the joint home (or his partner if he has one) is charged `rent’ by the one who has left, then he is to be treated as not liable for housing costs. This provision equalises the treatment for married and unmarried couples. Where the couple are married, the remaining partner is not under an obligation to make payments in order to live in the home. Note that the landlord can be the ex-partner of the claimant or of his partner.”
Mr Royston submitted that that showed that the mischief aimed at in the introduction of the predecessor of regulation 9(1)(c) was the purported creation of a tenancy immediately on the separation of the partners or, typically the departure of the male partner (with the title in the property), leaving behind the female partner, often with the children, in the former joint home.
21. Mr Royston could also have referred to the witness statement of a Mr Andrew Carter, a deputy section head of the then Department of Social Security, in R (on the application of Painter) v Carmarthenshire County Council Housing Benefit Review Board and R (on the application of Murphy) v Westminster City Council and others  EWHC Admin 308  HLR 27, which included the following:
“7. The regulation was a response to the extreme difficulties local authorities had in obtaining evidence to determine whether arrangements had been contrived to take advantage of the housing benefit scheme. In the situations listed in regulation 7(1) the nature of the relationship between the parties can facilitate the contriving of documents and other evidence to indicate a bona fide tenancy. It is extremely difficult for the local authorities to rebut such evidence. An authority can have little or no evidence to weigh against that put forward by the Claimant and his/her landlord and yet there may be strong doubts as to the credibility and integrity of the evidence indicating entitlement. In such situations refusals to award housing benefit and vulnerable to review. The new regulation gave local authorities a firm basis on which to decline to award housing benefit in circumstances where the risk of abuse is very considerable.
15. It is my belief that regulation 7(1)(c)(i) was intended to catch those in the Claimant’s position [a lodger who started to live with his landlady as husband and wife and then on separation resumed occupation of his separate bedroom]. As I have said above the regulation is an anti-abuse provision. In particular, it is intended to prevent abuse of the system where a couple have separated and one former partner charges rent to the other partner for living in the former home. This is an inappropriate use for Housing Benefit. Even if there are two dwellings at the Claimant’s address, his dwelling is part of the dwelling that was formerly shared. The guidance given in paragraph 14 of Circular HB/CTB A1/99 illustrates the typical type of case likely to be covered by the regulation – ie where one former partner leaves the home. It does not rule out other types of case such as the one here, where both former partners continue to reside at the same address.”
22. However, in Painter, Lightman J found in paragraph 14 that reference to the Circular (and by implication the witness statement) was inappropriate for the purpose of construing regulation 7(1)(c). He found the language of the regulation clear and unambiguous. In principle, the views of the Secretary of State expressed after the making of the amending regulations cannot be of any authority as to what the provision means. But even if I could look at those documents for present purposes, they would not help the claimant in the way that Mr Royston suggests. As Mr Carter said in the witness statement, the identification of a primary or typical case to which regulation 9(1)(c) would apply does not exclude an intention to cover a wider range of cases.
23. Accordingly, I find nothing in Mr Royston’s submissions to divert me from applying what in my view is the plain and ordinary meaning of the words of regulation 9(1)(c), that they apply where the liability is to anyone who at any time has been a partner of the claimant (or the claimant’s partner), providing that the liability is in respect of a dwelling that they occupied together while they were a couple. To adopt any narrower meaning would involve an artificially strained construction that cannot be justified on the ordinary principles of statutory interpretation.
Are the 1998 amending regulations ultra vires in relation to what is now regulation 9(1)(c)?
24. This is the issue on which I sought further evidence and submissions after the oral hearing. Mr Royston had not raised it, no doubt because a challenge to the validity of the amendments on grounds of irrationality had been rejected by the Court of Appeal in Tucker v Secretary of State for Social Security  EWCA Civ 1646,  HLR 27 and a challenge under the Howker principle had been rejected by the Court of Appeal in Campbell and others v South Northamptonshire District Council and Secretary of State for Work and Pensions  EWCA Civ 409,  3 All E R 387, R(H) 8/04. In Howker v Secretary of State for Work and Pensions  EWCA Civ 1623,  ICR 405, R(IB) 3/03, the Court of Appeal held that if, where the SSAC had agreed under section 173(1)(b) of the Social Security Administration Act 1992 not to require proposals for regulations to be formally referred to it for consultation, the material placed before the SSAC by the Secretary of State was so misleading that there was a real possibility that the SSAC would have required a reference if aware of the true effect of the proposals, the subsequent regulations were not validly made (see the authoritative explanation of the effect of Howker by the Tribunal of Commissioners in R(IB) 2/07).
25. In Campbell, the concern was the effect of the amendments made by regulation 3 of the Housing Benefit (General) (Amendment) (No 2) Regulations 1998 (the 1998 Regulations) in so far as the new provisions put into what was then regulation 7 of the Housing Benefit (General) Regulations 1987, and in particular the new category (a) (agreement not on a commercial basis), affected religious groups living communally. The particular case was about members of the Jesus Fellowship Church. The proposal to make the amending regulations needed to be referred to the SSAC under section 172(1) of the Social Security Administration Act 1992, but the SSAC agreed under section 173(1)(b) that there should not be a reference. I shall come back below to the documents put before the Committee. For the moment I need only set out the reasons given for rejecting the Howker argument.
26. Jacob LJ said this:
“51. Although there was no specific marking of “neutral” here [as there had been in Howker against a proposal actually adverse to claimants], Mr Goudie suggests that certain passages in the material supplied to the Committee in the case here had the same effect. He particularly points to that part of the Department’s letter of 2 September  saying that the proposed amendment “does not change the policy intention on who should be treated as not liable”, and the statement that there was “clarification, not a change of direction”. He also submits that the word “abuse” in the papers was used merely to describe the conduct of those who tried artificially to arrange things so as to be entitled to HB. Thus, he submits, the Committee did not appreciate that people such as his clients (whose arrangements are not made for the purpose of obtaining HB) were or might be excluded when they had been included before.
52. I reject that submission. I do so for two reasons. Firstly it seems to me to be clear that in general the Committee were not told by implication that the proposals were wholly neutral. On the contrary there were clear indications that they might not be in some cases. The reference to “saving provisions” in the letter of 2 September can only refer to this. Moreover the same letter explicitly referred to “additional categories”. The Local Government Association’s comment about making the regulation “tighter” shows that it too understood that the scope would be narrowed. And that comment was itself before the Committee.
53. Secondly it seems to me clear that the position of religious groups who lived communally was explicitly drawn to the Committee’s attention in the Department’s comments on the Local Authority Associations observations. The Committee was told that it was expected they would be caught by the “non-commercial arrangements” provision. True it is the same comment describes that as “abuse” but, I think it is clear that the term in context is not being used in a pejorative sense – in context it means those who as a matter of policy ought not to receive HB. That particularly appears, for instance, from the draft regulation itself which began with a general reference to “abuse” in sub-paragraph (1) and went on to particularise instances in sub-paragraph (1A).
54. I therefore conclude that the Committee was not misled and reject the ultra vires point.”
27. Peter Gibson LJ said this:
“64. I accept that some of the remarks made by the officials to the Committee, for example that the amendments were merely to simplify and clarify the existing regulations, could have been better expressed. Nevertheless, I do not see the facts of the present case as being comparable with those in Howker. In the Department’s letter of 2 September 1998, it was stated that the proposed amendment included `additional categories’, that is to say categories additional to those already covered by regulation 7. The reference to `abuse’ was not, to my mind, intended to define who should now become excluded from benefit. It was made plain (in the document headed SSAC 44/98 Annex C) to the Committee that by the terms of their residence some religious groups living communally might be caught by regulation 7(1)(a) because the tenancy agreements did not satisfy the test of commerciality. It is clear that members of the Committee focused specifically on the effect of the amendment. In my judgment the Commissioner was right to conclude that the Committee was not misled.”
28. It seemed to me, following the oral hearing in the present case, that it could be argued that the conclusion in Campbell turned to some extent at least on the specific references to the potential effect of the commerciality test on religious groups living communally. The extracts cited in the judgments from the documents put before the SSAC did not make any specific mention of what is now regulation 9(1)(c) or its effect. There was some acceptance by Jacob and Peter Gibson LJJ of a generally misleading description of the effect of the amendments. That had been put rather more strongly by Lightman J in Painter where he said this at paragraph 18:
“There is some confusion as to the object and effect of the regulation in the [letter of 2 September 1998]. For it contains the statement that the regulation should have no effect on genuine HB claimants. That is not correct. What the regulation does is preclude abuse of the system by excluding from entitlement to HB a tenant who is in a situation or relationship where experience has proved there is the potential for abuse. The question whether there is a genuine arrangement with the landladies or any contrivance or abuse in the present case has not been investigated and does not need to be decided because it is no longer relevant. The past relationship between the applicants and their landladies disqualifies the applicants from a claim to HB in respect of payments made to their landladies for their current dwellings. There is no personal bar on Mr Murphy claiming HB if he moves elsewhere. He however complains that he should not be required to move, most particularly since such a move will disturb his existing access to and sharing a dwelling with his daughter, and his move will have to be to single bedroom accommodation where his daughter cannot stay, since his HB will be limited to the rental value of single bedroom accommodation.”
Accordingly, I directed the Secretary of State to produce all the SSAC- related documents that had been put before the Court of Appeal in Campbell (as listed in paragraphs 43 and 49 of Jacob LJ’s judgment), with the opportunity to make a submission on any potential Howker argument.
29. The documents were supplied with a detailed submission that they showed that the SSAC had not been misled in any material respect about the general effect of the introduction of a list of categories in which there would be deemed to be no liability, regardless of whether the claimant could establish a lack of intention to take unwarranted advantage of the housing benefit scheme. In his reply Mr Royston submitted first that Howker stood for the principle that it was not open to the Secretary of State to lay draft regulations before Parliament when he had misrepresented their effect to the SSAC with the consequence that there was no report to accompany them and that there had been such a misrepresentation in the present case. He submitted that the position was worse than in Campbell because it was implied in the information given to the SSAC that any groups of genuine claimants who might be caught by any of the new categories had been explicitly mentioned with an explanation of the reasoning behind the inclusion of the category. There had been such an explanation in relation to commerciality and religious groups, but not in relation to former partners. Mr Royston submitted second that there was a difference in that what is now regulation 9(1)(a) is legally unambiguous (although giving rise to considerable factual difficulties), while the meaning of what is now regulation 9(1)(c) is unclear. He said that in those circumstances the interpretation making the least change to the existing legislation should be adopted.
30. Mr Royston’s first submission in my judgment founders on the point that there would have been a report if the SSAC had not been misled, ie as explained in R(IB) 2/07 that the Committee would have required a reference. The substance of the letter of 2 September 2008 was set out in the judgments in Painter and Campbell and there is no need to set it all out again. Having read the whole letter, there is nothing else in it relevant to the present case. That letter, despite its misleading aspects as identified in those cases, did clearly state that the draft regulations provided a list of situations in which there was to be deemed to be no liability, including new situations that were not already covered by the existing Regulations. I can see nothing in that letter or in the other documents before the SSAC to imply a statement that all such situations that had a potential effect on genuine claimants had been specifically mentioned. Draft regulations setting out that list were put before the SSAC, whose members were plainly more than capable of working out the meaning of its provisions for themselves. Although a focus of the SSAC’s concern was the vagueness of a proposed general deeming of non-liability where the substance of the liability amounted to an abuse of the housing benefit scheme, which did not in the end survive into the regulations as laid before Parliament (being replaced by the new sub-paragraph (l) on liabilities created to take advantage of the scheme), it is evident that the members of the SSAC subjected the whole of the draft regulations to close analysis. In my judgment, the SSAC was not misled as to the specific effect of what became regulation 9(1)(c). There was generally misleading information provided to the SSAC, but since it decided not to require a reference after the expressions of concern it raised and the limited assurances it received, it would have made no difference to that conclusion if those general matters had been more accurately stated.
31. The second part of Mr Royston’s submission does not work either. In relation to the Howker argument on validity, I cannot see that it would make any difference whether the new provision applies to liabilities to all former partners in respect of a formerly shared home or only to liabilities created immediately on ceasing to be partners. The argument for a material misleading of the SSAC would be much the same in the former case as in the latter, and in any event my rejection of the argument would cover both. Although it can be an aid to the interpretation of a provision that one interpretation would lead to the conclusion that it was validly made and one that it was not, that is of no assistance in the present case. The amending regulation introducing what became regulation 9(1)(c) was validly made whichever interpretation is adopted.
32. Accordingly, I do not have to decide the intriguing question of whether, if there had been invalidity under the Howker principle, that defect was cured by the revocation of the 1987 Regulations, as amended by the 1998 Regulations and others, and the re-enactment of its provisions in the 2006 Regulations, proposals for which did not need to be referred to the SSAC. My provisional view is that would not have cured the defect. The reason why proposals for the 2006 Regulations did not have to be referred to the SSAC was that they were exempted under paragraph 10 of Schedule 7 to and section 172(1) and (30 of the Social Security Administration Act 1992 as regulations “made for the purpose only of consolidating other regulations revoked by them”. Principle would then suggest that, if a provision that had formed part of the revoked regulations was not validly made, it should not be valid in its form in the consolidating regulations either. It would be different if new regulations were made, not purely as a consolidating measure, that the SSAC agreed not to have referred in full knowledge of their effect. That would render any Howker defect in the old regulations irrelevant to the new regulations.
33. There is one further oddity about the 1998 Regulations. The preamble to the regulations, after setting out the enabling powers relied on and stating that there had been consultation with representative local government organisations (as the SSAC papers showed there had been), continued “and after reference to the Social Security Advisory Committee [with a note referring to section 172(1) of the Social Security Administration Act 1992], hereby makes the following Regulations”. There had of course been no reference to the SSAC, with its agreement. There was no mention of a report by the SSAC as would have had to be laid before Parliament with the Regulations if there had actually been a reference to the SSAC, except in cases of urgency. When a report has been made by the SSAC under this process that is normally mentioned in the preamble. Does that mistake affect the validity of the 1998 Regulations?
34. The representative of the Secretary of State, in paragraph 13 of the submission dated 18 March 2011, says no. He says that all the statutory duties in sections 172 and 173 of the Social Security Administration Act 1992 were complied with and that was good enough. Mr Royston in his reply dated 18 April 2011 says yes. He submitted that the normal form of words in the preamble setting out the agreement of the SSAC to the proposals not being referred to under the specific authority of section 173(1)(b) was not otiose:
“Where the SSAC have not scrutinised a set of Regulations, Parliament may wish to scrutinise them itself more carefully, in the knowledge that they have not benefited from the expertise and guidance of SSAC.”
He also cited a passage from the judgment of Hale LJ in Howker, at , where she said that:
“The procedures laid down by Parliament for exercising the power to make delegated legislation which it has conferred upon Ministers must be properly observed, and particularly where it is the purpose of those procedures to enhance the effectiveness of Parliament’s scrutiny of that delegated legislation.”
35. There appears to be no direct authority on this point. The Secretary of State’s representative referred to the decision of the Court of Appeal in Vixiba Ltd v Komori UK Ltd and others  EWCA Civ 536,  1 WLR 2472. There the court, at , disagreed with the simple statement taken from the 8th edition of Craies on Legislation (2004) that “the preamble has no legal effect”. But its concern was with the effect of general enabling words – “and of all his other enabling powers” – after the list of specific enabling powers in the preamble to a statutory instrument. The court held that such general enabling words could in certain circumstances be interpreted as referring to an enabling power that had not been expressly invoked, such as where that power must necessarily have been used for the instrument to take effect or the operative provisions make it clear that the power must have been invoked or to secure compliance with European Union law or rights conferred by the European Convention on Human Rights. However, such words would not be interpreted in that way just because the specific power could have been used. While it appears from the citation in the submission that Craies has been amended in the 9th edition to take account of that decision, I do not find any part of the decision of any real assistance on the effect of a mistake such as that in the present case.
36. Hale LJ’s statement relied on by Mr Royston by no means gets him home. All the statutory procedures were properly observed in relation to the 1998 Regulations. I have held that there was no defect in the SSAC’s agreement not to have the proposals referred to it. In consequence, there was no report that the Secretary of State was obliged by section 174 of the Social Security Administration Act 1992 to lay before Parliament with the regulations and a statement about how far any recommendations of the SSAC had been adopted. I think that the test then must be whether Parliament was materially misled. Parliament can be assumed to be familiar with its own procedures and to know that when there has been a reference to the SSAC there will be a mention in the preamble to the regulations laid before it of the resulting report and to the Secretary of State’s statement, which are conventionally published in a Command Paper. The preamble to the 1998 Regulations described something that would not happen and in my view fairly obviously involved a mistake of some kind. In those circumstances, if a Member of Parliament wondered about what had in fact happened, either enquiries would have revealed the SSAC’s agreement not to have the proposals referred or there would not, because of the uncertainty, have been any diminished level of scrutiny. Thus, although the mistake in the preamble was unfortunate, it could not have misled Parliament in any material respect in any way that could affect the validity of the 1998 Regulations.
Is what is now regulation 9(1)(c) to be given a narrow construction by virtue of section 3 of the Human Rights Act 1998?
37. It was conceded on behalf of the Secretary of State that entitlement to housing benefit was a “possession” for the purposes of article 1 of protocol 1 to the European Convention on Human Rights, so that article 14 on discrimination could be engaged in relation to the conditions of entitlement to housing benefit. On behalf of the claimant, Mr Royston conceded, for the purposes of the current stage of the case, that any difference of treatment of the claimant (within his proposed disadvantaged category of women, rather than men) under regulation 9(1)(c) would be justified if the provision had the narrow meaning he put forward. That was on the basis that the Court of Appeal in Tucker had held that what became regulation 9(1)(d) pursued a legitimate aim (the eradication of abuse in the housing benefit scheme) and any differential treatment bore a reasonable relationship of proportionality to that aim. No doubt the upholding of other provisions within regulation 9(1) or its predecessor as not inconsistent with the Convention was also of some influence. However, he submitted that, if the wider meaning put forward by the Secretary of State were otherwise to be adopted, the differential treatment would no longer be proportional to the legitimate aim. Accordingly, section 3 of the Human Rights Act 1998 required regulation 9(1)(c) to be given the narrower construction and that distinguished the present case from Tucker, where the argument had been for complete disapplication of the predecessor of regulation 9(1)(d). He acknowledged that the human rights case made for the claimant had developed and been refined over time. Thus, for instance, it was no longer submitted that regulation 9(1)(c) could somehow be made subject to regulation 9(3).
38. With all due respect to the wide range of the arguments about whether there was sufficient evidence of a difference in treatment between men and women to satisfy article 14, I prefer, as did Lightman J in Painter, to look at the issue of discrimination by combining consideration of justification with the existence of differential treatment, and within that consideration to concentrate on the issue of justification. Nor do I see the need for any analysis of the case-law. That is because I cannot see how there would be any less powerful justification in relation to the wider meaning of regulation 9(1)(c) than in relation to the narrower.
39. It is relevant, as was submitted by Mr Cooper at the hearing, that there would be not be any lesser difference of treatment if regulation 9(1)(c) applied only to liabilities created at the point of separation. If, as alleged, women would tend to be more affected than men by the wider interpretation of the rule (because of the likelihood of the female partner being the main carer of any children and therefore left in occupation of the home), then they would also tend to be more affected than men by the narrower interpretation, the source of the alleged difference in treatment being the circumstances prior to separation. Then Mr Royston’s submission, given his inevitable acceptance of the general legitimacy of the aim of preventing abuse of the housing benefit scheme, in the sense of not allowing eligibility in circumstances where liabilities ought not to be covered, was that the response in the form of the wider meaning of regulation 9(1)(c) was not proportional to that aim. He had also inevitably accepted that formulating rules in a way that identified circumstances in which there was a risk of abuse and could catch genuine claimants did not in itself make the response disproportionate. The main burden of the submission was that the wider meaning would catch a larger number of claimants than appropriate when an alternative more tightly focused response was available in the form of the narrower interpretation.
40. I agree that the existence of some alternative response with a narrower scope can be a relevant factor in judging proportionality. However, that must always be subject to a judgment about how far the proposed alternative does the job of meeting the legitimate aim in question. Here, there would be obvious practical difficulties and opportunities for avoidance in Mr Royston’s suggested alternative, of interpreting regulation 9(1)(c) as applying only where the liability arises immediately on separation of the partners. He accepted in argument that to have used the criteria of the existence of an active and close relationship or of a recent separation would have been too uncertain. However, there would inevitably be difficulties in determining not only just how immediate is immediate, but when a separation took place. Bearing in mind that it is quite possible in law for a husband and wife to live in separate households under the same roof (and so not to be partners in the housing benefit definitions), that the provision also applies to couples who were not married to each other but had been living together as husband and wife and that changes in the nature of a relationship often happen in messy and imprecise ways, the establishment of a date for the start of Mr Royston’s proposed rule might often be difficult. If it was argued that the test should be whether a partner had left the house altogether, there would be similar problems in distinguishing between temporary departures and something more permanent. Perhaps more importantly, if the effect of the rule could be avoided by delaying the imposition of the liability for a few weeks or months (so that it was not immediate on separation) then there would be an easy route for avoidance, leaving a local authority to fall back on the more open-ended (and time-consuming to investigate and determine) provisions on commerciality and taking advantage of the housing benefit scheme. Further, the proposed rule would not catch a number of situations where the former partner left in occupation could have a right to occupy the property without the creation of a new liability to the other former partner. For all those reasons, my judgment is that Mr Royston’s proposed alternative would not be adequate as a response to the legitimate aim of regulation 9(1). For similar reasons, an interpretation restricting the operation of regulation 9(1)(c) to the liability to the most recent former partner would not do the job, because rights of occupation linked to previous former partners could survive intervening cohabitations.
41. The Secretary of State could have chosen some further limitation on the operation of what became regulation 9(1)(c) beyond the restriction to a dwelling that had been occupied while the couple were still partners. I have already explained why I consider that that is quite a significant limitation, especially as a clear indication that the provision was not simply aimed at the possibility of an active and close relationship subsisting between former partners. Without it, the proportionality of the provision might have been much more questionable. There could have been, for instance, a time limit of a period of so many years since separation (as in regulation 9(1)(h) and (ha)) or an application of the regulation 9(3) exception. However, arguments can plainly be made that a time limit would not be appropriate when rights of occupation arising from family law and property law can subsist for very many years after a separation and that it would be too difficult in practice to determine whether or not the liability in question had in fact been created to take advantage of the housing benefit scheme. In any event, that choice, just like the choice between Mr Royston’s proposed alternative and the wider interpretation of regulation 9(1)(c) that I have accepted above, would fall pre-eminently to be made by the Secretary of State and Parliament and not by judges in tribunals or courts. It would be within the margin of appreciation enjoyed by States in securing compliance with Convention rights.
42. Any difference of treatment of the kind alleged in the present case therefore does not amount to discrimination contrary to article 14 of the Convention because it is justified as a proportionate response to a legitimate aim. Accordingly, I do not need to express any conclusions on whether the claimant required further statistical evidence to establish a difference in treatment between men and women. There being no inconsistency with a Convention right, section 3 of the Human Rights Act 1998 does not require any different approach to the interpretation of regulation 9(1)(c) than I have set out above.
43. The tribunal of 26 January 2010 did not apply any wrong principle of law in the interpretation and application of regulation 9(1)(c) of the 2006 Regulations. The claimant’s appeal against its decision must therefore be dismissed.
(Signed on original): J Mesher
Judge of the Upper Tribunal
Date: 26 July 2011