Tag Archive for 'Benefits'

Ibrahim/Teixeira guidance

Published by NL on 18/05/2010 in Benefits, Community care, Homeless and Housing law - All. 8 Comments Tags: , , , , .

The DWP has issued guidance to decision-makers on benefit entitlement in the wake of Ibrahim and Teixeira (our report here) in the European Court, for when there is a likely Article 12 Regulation (EEC) No 1612/68 derived right for a child or children to remain to complete education. A copy of the guidance can be found here [link to PDF. Thanks to Disability Alliance]. The guidance is interesting not just for benefit entitlement, but it is a fair guess that housing authorities would follow a similar line.

A couple of things strike me about the guidance. One is the insistence that the Claimant must be primary carer AND parent (or step-parent) to be eligible. See para 7 and elsewhere. I’m not sure that this is so. Granted on the facts of Ibrahim and Teixeria, the carers were parents, but the Art 12 right belongs to the child, and, while a parent must have been a worker in the UK at some point, I can’t see how the ratio of those cases requires the primary carer to be a parent. The benefit/housing entitlement stems from the child’s right to remain and to be supported and cared for while they do. On that basis, the usual primary carer for the children would be the relevant claimant. Will this take another case to resolve?

Secondly, although I’m a lot less sure of my grounds here, the guidance is firm that children of A8/A2 nationals will not gain Art 12 rights unless the migrant worker has completed the necessary 12 months registered work. (Para 10). This would mean that although such a child might have been in school for a year, no Art 12 right to continue that education. Again, on the basis that the Art 12 right is the child’s, not the parents, I can’t see how this would work. I suppose the counter argument is that the accession migrant is not an EU worker during the ‘qualifying’ period, and thus the child can’t accrue Art 12 rights through their residence. I’m not convinced, but I am happy to have it explained to me. Preferably using short words.

Straws in the wind

Published by chief on 22/05/2009 in Benefits, FLW case note and Housing law - All. 2 Comments Tags: , , , .

Yesiloz v London Borough of Southwark [2009] EWCA Civ 415 was concerned with whether a Turkish asylum seeker was entitled to housing benefit.

Ms Yesiloz arrived in the UK in the late 1990s and claimed asylum.  She moved into premises in Camden and claimed HB on 11 April 2006.  Her claim was rejected on the ground that she did not have a right to reside in the UK.  In January 2007 an Appeal Tribunal held that she was entitled to HB, but the Social Security Commissioner allowed the local authority’s appeal in June 2008.  Ms Yesiloz then appealed to the Court of Appeal.

In February 2008 she was granted exceptional leave to remain and was then succesful with a new claim for HB, so at issue was her entitlement from April 2006 to February 2008.

Legislation

The Immigration and Asylum Act 1999, s. 115 excludes entitlement to benefits, including HB, for persons subject to immigration control, “unless he falls within such category or description, or satisfies such conditions, as may be prescribed”: s. 115(3).

Regulation 2(1) of the Social Security (Immigration & Asylum) Consequential Amendments Regulations 2000 (SI 2000/636) states that s. 115 does not apply to people within four categories.  The fourth category includes people who are nationals of states that have ratified the European Convention on Social and Medical Assistance (ECSMA) and are lawfully present in the UK.  Turkey has ratified ECSMA.  Therefore Ms Yesiloz is saved by the Regulations from disentitlement under s. 115 of the 1999 Act.

However, that is not the end of her problems as it does not automatically qualify her for HB under s. 130 of the Social Security Contributions & Benefits Act 1992.  At the material time this was governed by Housing Benefit Regulations 2006 (SI 2006/213).  Regulation 10 of these Regulations provides that an individual who has no right to reside in the UK shall not be treated as habitually resident.  They are therefore a “person from abroad” for the purposes of Paragraph 1 of Regulation 10 and should not be treated as liable to make payments in respect of a dwelling.  It follows that they would not therefore be entitled to HB.

Paragraph 3B of Regulation 10 specifies a number of categories of people who should not be classified as “persons from abroad”.  Nationals of ECSMA countries are not included in this list.

So the central issue is whether Ms Yesiloz had a right to reside.

Right to Reside

It was accepted by Camden that Ms Yesiloz was lawfully present in the UK, but in Abdirahman v SSWP [2007] EWCA Civ 657 the distinction between a right to reside and a right to admission (or lawful presence) was drawn by Lloyd LJ, when considering a different set of regulations:

It seems to me plain that UK law makes a distinction between a right to reside … on the one hand, and any lesser status, in particular that of an EEA national who is in this country having entered lawfully, has committed no breach of immigration law, but is not a qualified person and therefore does not enjoy the benefit of … a “right to reside”.

On behalf of Ms Yesiloz it was argued that as people in the first three categories identified in the 2000 Regulations had a right to reside, then people in the fourth category should be treated the same way.  The exclusion of ECSMA nationals from the groups of people who should not be classified as persons from abroad was accidental and there was no public policy reason to exclude those in the fourth category from having the right to reside.  Pill LJ disagreed with this line of reasoning:

31.  Whether the appellant has a right to reside in the United Kingdom depends on the construction of the appropriate statute or statutory instrument, in this case regulation 10 of the 2006 Regulations. The appellant must establish that she has a right to reside. Otherwise she is a “person from abroad” and not entitled to housing benefit. Regulation 10(3B) specifies many categories of persons who are not “persons from abroad”. It was, and was intended to be, a comprehensive list. The need, in this context, for a clear and specific classification is obvious.

32.  The categories do not include nationals of states party to ECSMA. In those circumstances, such persons cannot be said to have a right to reside either because of their position in the schedule to the 2000 Regulations, or because the introduction of the concept of right to reside was primarily aimed at nationals of A8 states, or because there is no powerful reason in public policy for depriving them of the right to reside, or by reason of any combination of those factors. The inclusion of paragraph 4 in part 1 to the schedule to the 2000 Regulations, whatever its purpose, does not, in my view, carry for paragraph 4 persons the implication of entitlement to a right to reside.

33.  The points relied on are straws in the wind and, well though Mr Berry has attempted to make the most of them, they do not permit the words “right to reside” in regulation 10 of the 2006 Regulations to be construed so as to include the appellant.

Smith and Wall LLJ agreed with Pill LJ.  Appeal dismissed.

But I was getting Jobseekers…

Published by NL on 12/05/2009 in Benefits, FLW case note and Housing law - All. 0 Comments Tags: , , , .

R (Prince) v Social Security Commissioners & SoS for the DWP & London Borough of Southwark (Interested parties)[2009] EWHC 1181 (Admin) concerns what can only be described as a bit of a chancer.

Mr Prince had claimed Jobseekers Allowance. He had also claimed Housing Benefit and Council Tax Benefit. He was found to have been in paid employment for 20 months while claiming JSA. The DWP told Southwark, who then found he had been overpaid £1000 HB etc.

Mr Prince attempted to appeal Southwark’s decision to the Social Security Tribunal who dismissed the appeal. The Social Security Commissioners refused leave to appeal and Mr P sought JR of that decision .

The grounds were that that under the Housing Benefit (General) Regulations 1987 reg.2(3A), and the Council Tax Benefit (General) Regulations 1992 Sch.4 para.4, he was on JSA, as he was paid JSA, and therefore he was entitled to have his income disregarded by Southwark in calculating his entitlement to HB/CTB.

Alas for Mr P, a classic trap for the litigant in person is to mistake the commonsense effect of statute for what it actually says. And that is what he did.

The High Court made short shrift of this, pointing out that the relevant Reg., Reg 2(3A) stated that a person was ‘on’ JSA if JSA was ‘payable to’ the person on that day. Mr P might have been paid JSA, but as he was not entitled to it, it was not ‘payable’. Therefore his actual income for the period was not to be disregarded for his HB/CTB claim. JR claim dismissed.

Mr P goes down fighting, asking for permission to appeal on the basis that ‘The obvious fallacy in that, my Lord, is right at the start where your Lordship says that not being in remunerative employment is a requirement for JSA, which is entirely wrong’.

Permission to appeal refused, on the basis that this is just wrong, but no order as to costs because the authority had only served grounds a day or several before the hearing and had no schedule of costs.

Eligibility for benefits

Published by chief on 01/12/2008 in Benefits, FLW case note and Housing law - All. 1 Comment Tags: , , .

Once again the issue of an applicant’s eligibility for benefits has come before the courts in Sylwia Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310.  I am sure that all those with an interest in housing law will appreciate the importance of entitlement to benefits for many people within this field.

Ms Kaczmarek came to the UK from Poland, which was an EEA country at the material time.  It was argued on behalf of Ms Kaczmarek that although she clearly was not eligible under domestic legislation, she was entitled to income support relying on Articles 12 and 18 of the EU Treaty, when read in conjunction with part of Trojani v Centre Public d’aide sociale de Bruxelles (Case C-456/02) [2004] ECR I-7573.  The Court of Appeal unanimously rejected this argument.

The appellant came to this country as a student in April 2002. She later worked on a part-time basis from June 2003 until April 2004 and then on a full-time basis from May 2004 until July 2004. She then went on maternity leave until February 2005, giving birth to a daughter in October 2004.  She was not initially available to return to work as her baby daughter was sick and she could not afford a childminder. She therefore applied for income support. Her application was rejected but she appealed successfully to the Independent Appeal Tribunal. The Secretary of State then succesfully appealed this decision to the Social Security Commissioner. Ms Kaczmarek has since returned to work and has been in employment since October 2006. Her income support claim was therefore for May 2005 to October 2006.

Article 12 of the Treaty states:

Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

While the relevant part of Article 18 is:

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect …

On behalf of Ms Kaczmarek Natalie Lieven QC relied heavily on para 43 of Trojani:

… with regard to [certain social security benefits], a citizen of the Union who is not economically active may rely on Article 12 EC where he has been lawfully resident in the host Member State for a certain time or possesses a residence permit …

At [16] Maurice Kay LJ said that:

The question in relation to Article 12 is a narrow one. It is: Does the reference to lawful residence “for a certain time” in paragraph 43 of Trojani open the door to eligibility based on residence of unspecified but significant duration and of a type which evidences a degree of social integration in the host Member State? In my judgment, it does not.

He agreed with the Social Security Commissioner that:

[T]he reference to “a certain time” is a reference to specific qualifying periods which give rise to an express right of residence.

Maurice Kay LJ then considered whether it was disproportionate to deny a right of residence to a person in the position of the appellant, particularly in the light of Baumbast v Secretary of State for the Home Department [2002] ECR I-7091.  In that case a lucana had been filled because it would be disproportionate for a Directive and domestic legislation to undermine Article 18.  In his judgment:

It is abundantly clear that the facts of Baumbast were more susceptible to “lacuna filling” than the facts of the present case where, at the material time, the appellant was no longer a worker and nor was she at all self-sufficient.

Maurice Kay LJ also agreed with the Social Security Commissioner that Council Directive 2004/38/EC shed some light on the matter.  This Directive did not come into force until 30 April 2006 and therefore does not strictly apply to Ms Kaczmarek’s case.  As this Directive allows for a right of permanent residence after five years’ lawful presence without the applicant being economically active “it would be inappropriate and presumptuous for us to characterise something as a lacuna when it was not identified as such by the Council when it most recently moved to enlarge eligibility.” [23]

Stanley Burton LJ and Sir Anthony Clarke MR agreed with Maurice Kay LJ.

One can’t but help feel sorry for the claimants in this case and in Zalewska.  Neither of them seem to be “benefits tourists”, yet both have missed out.  On balance it is Ms Zalewska who appears to have got the rawest deal – she had actually completed the required period in employment, but had simply failed to register one part of it – which of course meant that her employer was committing a criminal offence, but she was the one who was hit hardest.

Access to benefits and proportionality

Published by chief on 13/11/2008 in Benefits, FLW case note and Housing law - All. 10 Comments Tags: , , , .

While Zalewska v Department for Social Development (Northern Ireland) [2008] UKHL 67 is not a housing case as such, I hope that many of our readers will still find this useful and interesting.  It is the second time in a fortnight (after RJM) that the House of Lords has had to consider whether UK legislation preventing someone from accessing benefits is compatible with European emanations, but this time it is EC law that is under consideration.

The issue was whether a Polish applicant was entitled to income support having worked in the UK for 12 months without interruption.  She was required to register her periods of employment and had not done this for all of them.  Her claim was disallowed as her failure to register for some of the time meant that she had no right to reside.

By a 3-2 majority their Lordships (Lords Hope, Carswell and Brown) held that she was not habitually resident (Baroness Hale and Lord Neuberger dissenting).

Facts

Ms Zalewska, a Polish national, went to Northern Ireland to look for work on 1 July 2004.  Between 9 July 2004 and 7 January 2005 she worked picking mushrooms.  From 8 January 2005 for a period of about three weeks she worked for a well know vodka producer.  From the end of January 2005 she started working for a company called Linwoods.  At about this point her three year old daughter joined her in Northern Ireland.  In April her daughter’s father also moved to Northern Ireland.  Ms Zalewska and her daughter moved in with him in May 2005.  She continued to work for Linwoods until 10 July 2005, at which point she stopped.  On 22 July 2005 she applied for income support for her and her daughter.  Before Paul Dacre starts jumping up and down at this point, it should be pointed out that Ms Zalewska had left the family home due to domestic violence before she stopped working for Linwoods.  As Baroness Hale notes two points follow on from this factual history [51]:

first, that she was going through a very difficult time when she ceased work; and second, that there is nothing at all to suggest that she came here to work with a view to claiming benefits in due course. Indeed, the Tribunal which heard her case in November 2005 stated that she was continuing to seek work although not required by the benefit rules to do so.

However, her claim for income support was rejected as she had not been registered as working for an authorised employer for an uninterrupted period of 12 months, as required by the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219).  Although she had correctly registered the employment picking mushrooms for Monaghan Mushrooms Ltd, she had not done so while working for either Smirnoff Vodka or Linwoods.  In the case of Smirnoff this was not a problem – she was with them for less than a month so this period was covered by reg 7(3).  By failing to register her employment with Linwoods, Ms Zalewska was no longer entitled to be treated as a “worker” for the purposed of the Regulations.  Consequently she had no right to reside and could not become habitually resident.

Arguments

On behalf of Ms Zalewska, Mr O’Hara QC argued that art 39EC and art 7(2) of Regulation 1612/68 entitled her to the same social and tax advantages as workers who are UK nationals.  Therefore her failure to comply with the registration requirements should just be disregarded.  As a secondary argument Mr O’Hara suggested that the right to reside test that is applied, including the registration requirements for employment, is unnecessary and disproportionate.  This second argument was supported by the interveners, the Child Poverty Action Group and the Public Law Project.

On behalf of the Department of Social Development Mr Lewis QC argued that the question of whether national rules were a disproportionate restriction of EC rights did not arise due to the derogation.

Held

The measures taken were compatible with the authority given by the Treaty of Accession, but they were still subject to the EC requirement of proportionality.  All of their Lordships agreed on these two points (see [25]-[30]).  Where the majority and the minority differed was in their treatment of proportionality, acknowledged by Lord Hope as “the most troublesome aspect of this case” [31].  Lord Hope’s view, adopted by the majority, was that when the whole context was examined the measures and their consequences were neither unreasonable nor disproportionate.

As Lord Hope stated at [31]:

The principle of proportionality requires that the means employed to achieve an aim recognised by Community law as legitimate correspond to the importance of that aim and are necessary for its achievement.

In this case, the legitimate aim was to enable the UK to monitor and review arrangements for access by A8 nationals to the labour market, in order that the UK could determine whether further steps needed to be taken to prevent disruption to the labour market during the accession period.  The argument against the measures is that they were not proportionate to achieving this aim, specifically that the requirement to re-register was unnecessary.

In Lord Hope’s view this argument focussed too much on “access” to the labour market simply meaning point of entry.  In his judgment, a complete picture of the impact of A8 workers on the UK labour market could only be obtained by gathering information about the sectors in which they were employed over the whole 12 months.  The requirement to have worked “legally” for 12 months before benefits could be claimed was a rational way of imposing pressure on A8 nationals to register their different periods of employment in order to build up this picture (see [41] endorsing Commissioner Rowland’s assessment of proportionality).

Baroness Hale, with whom Lord Neuberger agreed, applied proportionality differently.  Baroness Hale noted that various parts of the scheme “could have been better designed and implemented” for the purpose of the principal aim of monitoring ([55]).  She cited the one month rule (reg 7(3)), which could mean that some A8 workers were never counted; the long delay in issuing certificates of registration; and the fact that the £50 fee charged to applicants could be a deterrent to applying.

Above and beyond that though, Baroness Hale felt that it was difficult to see how the future denial of benefits to a person who has worked in the UK for at least 12 months was a suitable means of achieving the aim of monitoring [56].  Baroness Hale went on to say:

57.  It is even more difficult to see how denial of benefits can be a necessary means of achieving the monitoring aim. The consequences for the worker’s right to freedom of movement are severe. She was allowed to come and to work here for 12 months. But she has been denied what she would otherwise be entitled to, having worked for so long. And by that stage the benefits for the monitoring scheme scarcely exist, but could in any event be achieved by allowing retrospective registration. The worker would still, of course, have to prove that she had indeed qualified by having worked here for the required period. The consequences of the sanction are particularly severe in a case such as this, where the claimant has registered once. She has therefore been counted for the main purpose of the scheme, which is to count heads rather than jobs.

58.  Even if encouragement to join the formal economy were an aim, a more suitable and proportionate means of achieving it would be by criminal sanctions against employers. The scheme does provide for sanctions against employers and an extended time limit for prosecution applies. But we have no information about how vigorously this has been pursued, either in general or in this particular case. If the agency (or Smirnoff or Linwoods) had been clear that they would be prosecuted for every A8 worker they took on without a certificate, the appellant would not have been in the predicament in which she found herself on 22 July 2005. The perils for them would not be disproportionate whereas the perils for her undoubtedly were.

While this case will be of interest to those who deal with the decreasing numbers who might be caught up in a similar factual situation, it is also very interesting to compare the two different approaches to proportionality, see [31]-[44] & [63]-[65] on the one hand and [48]-[59] & [68]-[69] on the other.  As this concept continues to make inroads into UK public law the tensions between the two treatments will inevitably crop up again and again.  That is something that housing lawyers can’t afford to ignore.

Rough Sleepers, Rough Justice

Published by chief on 04/11/2008 in Benefits, FLW case note, Homeless and Housing law - All. 4 Comments Tags: , , , .

R (RJM) (FC) v Secretary of State for Work and Pensions [2008] UKHL 63

This House of Lords judgment is now just under two weeks old, but I think it is still worthy of comment here.  It is a discrimination case dealing with benefits and rough sleepers, but has some important implications in much broader areas, at least in my opinion.  It is somewhat tangential to what is usually covered, so we would doubtless welcome comments on whether this is of interest to our astute and loyal band of readers.*

The facts, briefly (some of them from the CA decision):

The claimant, RJM, suffers from mental health problems.  During the period before 2004 he received income support, including a disability premium.  In August 2004 RJM became homeless, i.e. street homeless.  Under the Income Support (General) Regulations 1987 those without accommodation are not entitled to receive the disability premium and that part of his payment was consequently stopped.  The difference to RJM was about £23 a week.

Legal Framework

The criteria for entitlement to Income Support are contained in s. 124 of the Social Security Contributions and Benefits Act 1992:

(1) A person in Great Britain is entitled to income support if – …
(e) he falls within a prescribed category of person;
…
(4) Subject to subsection (5) below, where a person is entitled to income support, then –
(a) if he has no income the amount shall be the applicable amount; and
(b) if he has income the amount shall be the difference between his income and the applicable amount.

The applicable amounts are set out in regulation 17 of the Regulations:

17. Applicable Amounts
Subject to regulations 18 to 22A and 70 (applicable amounts in other cases and reductions in applicable amounts and urgent cases), a claimant’s weekly applicable amount shall be the aggregate of such of the following amounts as may apply in his case:
(a) an amount in respect of himself or, if he is a member of a couple, an amount in respect of both of them, determined in accordance with paragraph 1(1), (2) or (3), as the case may be, of Schedule 2;
…
(d) the amount of any premiums which may be applicable to him, determined in accordance with Parts III & IV of Schedule 2 (premiums);
(e) any amounts determined in accordance with Schedule 3 (housing costs) which may applicable to him in respect of mortgage interest payments or such other housing costs as are prescribed in that Schedule…

Under regulation 21(1), paragraph 6 of Schedule 7 provides that for “a claimant who is without accommodation”, the amount applicable to him is only that under regulation 17(1)(a).  Therefore, a claimant without accommodation has no entitlement to the premiums that they would otherwise be entitled to under regulation 17(1)(d), which as mentioned above was worth about £23 a week to RJM.

RJM claimed that the Regulations are incompatible with article 14 of the ECHR and article 1 of the First Protocol to the ECHR (A1P1), which everyone will know, but for ease of reference they are, as far as is relevant:

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 – A1P1

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 – Art 14

The Claim

There were three issues in the case before the House of Lords :

1. Does disability premium come within the scope of A1P1?
2. Is homelessness covered by “other status” in article 14?
3. If the answer to 1 and 2 is “yes”, is any discrimination justified?

Their Lordships (Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Mance and Lord Neuberger of Abbotsbury) unanimously agreed that all three questions could be answered “yes”, thereby dismissing the appeal.

Lord Neuberger gave the leading judgment.  Lords Walker and Mance chipped in with some supplementary points.

A1P1

In the CA Ms Lieven QC for the Secretary of State had conceded that RJM’s claim was covered by A1P1, although she criticised the ECtHR’s reasoning.  She also stated that this concession would be repeated in the House of Lords.  Mr Howell QC, now leading for the Secretary of State in the House of Lords thoroughly withdrew this concession.

Lord Neuberger discussed a series of ECtHR cases.  In Kopecky v Slovakia (2005) 41 EHRR 944 it was said that A1P1 “does not guarantee the right to acquire property”.  Therefore, for a claim to come under A1P1 the claimant needed to own, or at least enjoy a legitimate expectation to, property.  There could be no legitimate expectation unless there was a “currently enforceable claim that was sufficiently established”.  The logical conclusion, expressed in von Maltzan v Germany (2006) 42 EHRR SE92, is that if A1P1 is not engaged then article 14 can not apply.

However, in Gaygusuz v Austria (1996) 23 EHRR 364, the ECtHR had held that an Austrian scheme of emergency assistance was covered by A1P1, although this was partly based on the fact that entitlement to the benefit was “linked to the payment of contributions to the unemployment insurance fund”.

But in Stec v UK (2005) 41 EHRR SE295, the ECtHR decided that it was “artificial to hold that only benefits financed by contributions to a specific fund fall within the scope of [A1P1].”  Furthermore:

“… the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law to receive the benefit in question … Although [A1P1] does not include the right to receive a social security payment of any kind, if a state does decide to create a benefits scheme, it must do so in a manner which is compatible with art 14.”

Mr Howell invited their Lordships to refrain from following Stec and to apply the Kopecky and von Maltzan line of reasoning.  Lord Neuberger rejected this invitation saying (at [31]) that Stec was:

“a carefully considered decision, in which the relevant authorities and principles were fully canvassed, and where the Grand Chamber of the ECtHR came to a clear conclusion, which was expressly intended to be generally applied by national courts.  Accordingly, it seems to me that it would require the most exceptional circumstances before any national court should refuse to apply the decision.

[32] I do not consider that any exceptional circumstances can fairly be said to arise here.”

Mr Howell accepted that it was illogical to distinguish between funded social welfare payments (the Gaygusuz scenario) and unfunded social welfare payments (the Stec scenario).  Accordingly, he sought to argue that both types were outside of the scope of A1P1.  Therefore, not only was Stec wrongly decided, but so was Gaugusuz and the line of cases that followed on from that.  Lord Neuberger had little difficulty in agreeing with Mr Drabble QC, on behalf of RJM, that it was “inconceivable that Gaygusuz would not be treated as good law by the ECtHR.”

Homelessness and Art 14

The Secretary of State argued that in order to succeed under article 14 a claimant must show that they are being discriminated against on the grounds of a “personal characteristic” and homelessness does not count as such a characteristic.  On behalf of RJM it was argued that the ECtHR’s jurisprudence establishes that there is no requirement for an applicant to show that they are being discriminated against on the grounds of a “personal characteristic”.  Alternatively, homelessness is such a characteristic, so any such requirement is satisfied.  It may be remembered that the phrase “personal characteristics” comes from Kjeldsen, Busk, Madsen and Pedersen v Denmark (1976) 1 EHRR 711.

In Lord Neuberger’s opinion the first part of the claimant’s argument failed.  There was no case to support this proposition.  Mr Drabble sought to rely on a number of ECtHR decisions where article 14 claims had been dismissed without deciding whether the alleged discrimination was on the grounds of a personal characteristic.  However, this was dismissed by Lord Neuberger at [38]:

“The absence of any reference in those judgments to the need for the alleged discrimination to be on grounds of a personal characteristic is just as easily explained on the grounds that it was unnecessary to consider the point, as the claim failed on other grounds, or that the point was irrelevant as there was no dispute on that issue in the particular case.”

However, on the issue of whether homelessness was a personal characteristic so as to qualify as “other status” under article 14, Lord Neuberger sided with RJM.

It should be noted that the ‘homelessness’ in this case is the much narrower definition that most members of the public probably associate with the word, rather than the Housing Acts definition.  Lord Walker at [4] refers to the ODPM’s figures of 459 rough sleepers in England and Wales in 2005 (this is probably a mistake and should refer to England only – according to the Department of Communities and Local Government there were 483 people sleeping rough in England in June 2008.  In Wales there was between 128 and 165 people sleeping rough in March 2008.  Of course, I’m sure that we all know that these figures are to be taken with a pinch of salt).

Lord Neuberger noted that a wide and generous interpretation should be applied to the words “or other status” in article 14.  He cited the examples of military rank, as against civilian; residence or domicile; and previous employment within the KGB.  Furthermore, the concept of “personal” in the phrase suggested that one should be concentrating on what somebody is rather than what is being done to them.

Lord Walker said that the phrase “personal characteristics” from Kjeldsen is not a precise expression and to his mind “a binary approach to its meaning is unhelpful.”  Anyone interested in article 14 should take a couple of minutes to read [5] in its entirety, but in essence “personal characteristics” are like a series of concentric circles.  Those closest to the centre are those characteristics that are innate, largely immutable and closely connected with an individual’s personality.  Other acquired characteristics are further out in the circles.  This is important as the “more peripheral or debateable any suggested personal characteristic is, the less likely it is to come within the most sensitive area where discrimination is particularly difficult to justify”.

In Lord Neuberger’s opinion the CA’s reasoning on this point was flawed as they had been influenced by the fact that being homeless was a voluntary choice.  As Lord Neuberger acknowledged that in itself is quite clearly not true in every case, but his Lordship preferred to concentrate on whether voluntariness was determinative:

“I do not accept that the fact that a condition has been adopted by choice is of much, if any, significance in determining whether that condition is a status for the purpose of Article 14.” [47]

The CA was also influenced by the fact that homelessness had not been recognised as a status by the ECtHR, but Lord Neuberger viewed that as a neutral point as the issue did not appear to have been raised.

Justification

This left the question of whether in the discrimination could be justified.  The Secretary of State advanced two arguments to justify the practice.  Firstly, the Secretary of State should encourage the disabled homeless to seek shelter, rather than making it easier, in financial terms, for them to remain without accommodation.  Secondly, those without accommodation are less likely to require a supplement than those who do have accommodation.  In the words of the Secretary of State’s witness:

“Claimants in accommodation have a range of expenses and financial pressures related to that accommodation that claimants without accommodation do not have.”

While much can be said against these attempts at justification, in Lord Neuberger’s opinion neither of them are unreasonable.  He referred to the fact that “policy concerned with social welfare payments must inevitably be something of a blunt instrument, and social policy is an area where a wide measure of appreciation is accorded by the ECtHR to the state” [54] and that this “is an area where the court should be very slow to substitute its view for that of the executive” [56].

Lord Mance stated that he found the issue of justification difficult, but that, with some residual doubt, he had come to the conclusion that the discrimination in the Regulations had legitimate aims and was sufficiently proportionate to be justified.

The ECtHR and domestic doctrine of precedent

Lord Neuberger then dealt with the situation where the Court of Appeal is faced with an otherwise binding decision of the House of Lords or an earlier Court of Appeal, but there is a subsequent conflicting ECtHR judgment.  In the process he laid down a slight adjustment to the famous principles in Young v Bristol Aeroplane Co Ltd [1944] KB 718.

Where the otherwise binding decision is from the House of Lords then, unless there are wholly exceptional circumstances, the CA should follow the HL decision.  Effectively then there is no change to the position in Kay v LB of Lambeth [2006] UKHL 10.  For exceptional circumstances Lord Neuberger referred back to Lord Bingham at [45] in Kay.

Where the otherwise binding decision is one of its own then the CA is “free (but not obliged) to depart from that decision.” [66]

Interestingly s. 2(1)(a) of the Human Rights Act 1998 is referred to by Lord Neuberger at [34] as part of the discussion on Stec, but does not get mentioned at all in this discussion on precedent.

Lords Hope, Rodger and Mance all agreed with Lord Neuberger and Lord Walker.

Counsel was Richard Drabble QC and Zoë Leventhal for RJM; John Howell QC and Natalie Lieven QC for the Secretary of State; and Rabinder Singh QC made written submissions on behalf of the Equality and Human Rights Commission.

*As this is the first report I have written up for Nearly Legal I am hoping that flattery will get me everywhere.

What is a locality?

Published by NL on 03/08/2008 in Benefits, FLW case note and Housing law - All. 1 Comment Tags: , , , .

R (on the application of Heffernan) (FC) (Appellant) v The Rent Service) (Respondents) [2008] UK 58 concerns the meaning of locality in para 4(6) of Part 1 Schedule 1 Rent Officers (Housing Benefit Functions) Order 1997.

Locality serves to define the area by reference to which the Local Reference Rent was established and hence the level of Housing Benefit. As the definition of locality is effectively the same for the new system of Local Housing Allowances, the issue is still of importance.

The appeal was from a Court of Appeal judgment upholding a rent officers determination that a locality could be the whole of Sheffield, with outlying rural areas.

Para 4(6) of Part I of Schedule 1 to the 1997 Order provides:

“For the purposes of this paragraph and paragraph 5 ‘locality’ means an area—

(a)  comprising two or more neighbourhoods, including the neighbourhood where the dwelling is situated, each neighbourhood adjoining at least one other in the area;

(b)  within which a tenant of the dwelling could reasonably be expected to live having regard to facilities and services for the purposes of health, education, recreation, personal banking and shopping which are in or accessible from the neighbourhood of the dwelling, taking account of the distance of travel, by public and private transport, to and from facilities and services of the same type and similar standard; and

(c)  containing residential premises of a variety of types, and including such premises held on a variety of tenancies.”

Lords Hope, Neuberger and Scott held that 4(6)(a) set a minimum number of neighbourhoods – two – but that additional neighbourhoods must be justifed by the need to meet the requirements of (b) and (c), i.e. where the variety of tenancies and residences in the two neighbourhoods is not sufficient to establish the highest and lowest rents. Para (b) sets a geographical limit on the selection of neighbourhoods, so the criterea of para (b) must be applied to each proposed additional locality. Appeal allowed.

Lord Rodger disagreed. If a neighbourhood met the criteria in paras (a), (b) and (c), there was no reason why the rent officer could not use it in establishing the rent, and no requirement to justify adding more than two neighbourhoods to the locality [para 28-29]

Lord Walker, bewildered by the absence of guidance on where a locality would actually stop, agreed with Lord Rodger.

Aaargh

Published by NL on 30/07/2008 in Benefits, Housing law - All, Possession and Trusts and Estoppel. 6 Comments Tags: , , , , .

Started on Doherty, but on closer inspection, the Lords have also given me R (On The Application of M) (Fc) V Slough Borough Council and R (On The Application of Heffernan) (Fc) V The Rent Service to deal with, and possibly also Yeoman’s Row Management Limited and Another V Cobbe. All here.

Damn them, damn, damn, damn. Thankfully, the Court of Appeal held off handing down anything of interest – for here at least.

Discretionary Housing Payments

Published by NL on 09/04/2008 in Benefits, FLW case note, Housing law - All and secure-tenancy. 0 Comments Tags: , , , .

A short note on Gargett, R (on the application of) v London Borough of Lambeth [2008] EWHC 663 (Admin) which was an application for Judicial Review on Discretionary Housing Payments.

The applicant had applied for a DHP to cover rent arrears, being at risk of losing her home. She was refused as

i) she was in receipt of full housing benefit.

ii) the arrears built up during a period when she was not in receipt of HB and that “therefore Housing Benefit may not be awarded as in accordance with the Discretionary Financial Assistance Regulations 2001: 2(1) and (3)”.

The applicant contended that:

(1) The Council fettered its discretion and misapplied the Regulations in excluding lump sum DHPs from those in receipt of full housing benefit.

(2) The Council failed to have regard to the claimant’s circumstances.

(3) The Council failed to consider its own prevention of homelessness strategy.

Regulation 4 of Discretionary Financial Assistance Regulations 2001 sets the limit on the amount of the DHP. It provides

    4. The amount of a discretionary housing payment (if calculated as a weekly sum) shall not exceed, in a case where the need for further financial assistance arises as a consequence of the liability to make—

        [(a) periodical payments in respect of the dwelling which a person occupies as his home, other than payments in respect of council tax, an amount equal to the amount of the aggregate of the payments specified in -

            (i) regulation 12(1) of the Housing Benefit Regulations less the aggregate of the amounts referred to in regulation 12(3)(b)(i) to (iii) of those Regulations, calculated on a weekly basis in accordance with regulation 80 and 81 of those Regulations; or.

[...]

Thus a DHP shall not exceed the maximum eligible rent for HB purposes, so that where maximum HB is in payment and satisfying the relevant housing costs, there can be no DHP award.

The applicant contended that the phrase ‘if calculated as a weekly sum’ meant that a lump sum could be paid where full HB was in payment.

The applicant also contended that the calculation should be made for the period when the arrears arose, when HB was not in payment.

The Court didn’t agree. The regulation gives a means of calculation, not a circumstance of entitlement.

The point where the calculation was to be made was the present shortfall (if any), not a past moment of shortfall, even if there was a discretion to make back payments. The applicant was not presently eligible for a DHP, so the option of a discretionary back-payment did not arise.

Grounds 2 and 3 not considered as not arising.