The re-design of the administration of housing benefit has sought to address the scheme’s complexity in recent years – the local housing allowance is a particular example of this re-design, with the shift to flat rate payments according to household size.  Complexity has been constructed as bad for claimants, who are (or were) unaware of their maximum entitlement, and bad for the administration, which needs to be made more efficient.  All of this re-design can be subsumed within the rubric of “from discretion to rules” – discretion now being a “bad”, rules being a “good”, a remarkable turnaround from the position in the 1970s but there we go.  Rules create the so-called “bright lines” between entitlement and disentitlement; rules are also, by their nature,  insensitive to particular household circumstances.

In two recent decisions of the the Upper Tribunal, Administrative Appeal Chamber, the rules have been challenged as being insufficiently sensitive to individual household needs: RG v SSWP and North Wiltshire DC (HB) [2011] UKUT 198 (AAC) and IB v Birmingham CC [2011] UKUT 23 (AAC).  Both Claimants were represented by the CAB, so a major hat tip (if that’s possible) to them for running these interesting appeals.  In the former, the issue concerned the bright line in Reg 13D(3), HB Regs 2006, which entitles a claimant to one bedroom, among other categories, for “two children of the same sex” and “two children who are less than 10 years old”.  The Claimant and his wife have three children, aged 18, 10 and 8 respectively.  The 10 year old has Downs Syndrome and the eight year old Spina Bifida.  They were properly assessed according to the rules as being entitled to HB for a three bedroom property.  The problem was that the two younger children could not “reasonably share a bedroom” and the First Tier tribunal found that “There is a risk to the family if they are forced from their four bedroom home into three bedroom accommodation – either daughter might end up in care” (at [4]).  The council had made a discretionary HB payment, which made up some of the difference between HB and the rent.  The Claimant claimed that Reg 13D(3) should be modified by reference to Art 8, Art 1 of the First Protocol, and Art 14, Human Rights Act 1998.  The same argument was made in IB, where the Claimant required a team of carers to provide 24 hour care, but only qualified for HB for one bedroom accommodation as the carers did not occupy the property as their home (Reg 13D(12)).  The real issue in both cases was not about discrimination but whether the discrimination could be objectively and reasonably justifiable.

In IB, Judge Howell played a pretty straight bat to this argument (a cricketing analogy specially for J).  He noted that the claim, in essence was for a more favourable rule for IB than for other claimants (ie positive differentiation) but that in no case before the ECtHR had that been applied, other than Thlimmenos v Greece (2001) 31 EHRR 411.  We then have the well-worn resort to the “wide margin of appreciation in matters of social policy and the allocation of public resources” (at [45]), which was said to be of particular significance when the claim was for a greater amount.  Referring to AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634, in which it was said that hardship does not of itself render a matter disproportionate, especially where alternative provision for exceptional cases is made (Kay LJ, at [29]).  Elias LJ in that case drew attention to seven factors which justified the discrimination (against entitling a disabled person to have her partner enter the country to care for her): the courts are reluctant to interfere in matters of social policy; bright line rules are generally acceptable even though they might produce hardship; making an exception commits the further distribution of national resources which the court would be slow to do, even if the sums are small; it is difficult to know quite how significant an exception is opened up given the width of personal circumstances potentially falling within Article 14; there would be additional administrative costs; it was not a case of planned or direct discrimination; there was power in the SoS to make provision on compassionate grounds.  Judge Howell said that those considerations were equally present in IB’s claim, more so as the claim was for greater resources: “… the award of an additional cash benefit outside the rules altogether for which there is in fact no valid ‘system of reference'” (at [47]).  There was a legitimate aim – the control of the cost of HB on the “entirely rational” basis of the number of occupiers living in the property as their home (at [48]).  The evaluation and correction of anomalies was a matter for Parliament and not for the Tribunal.

The question for Judge Turnbull in RG was whether IB could be distinguished in any way.  Judge Turnbull noted some different features on the facts but found the principles in IB equally applicable.  It was a legitimate aim for HB to be limited not just by the numbers of occupiers but also by the ages and sex of children.  Although amending rules had been brought into effect to deal with the issue raised in IB, no such special provision had been made to deal with the issue in RG, but nothing could be read into that.  Four of the essential points made by Judge Howell were also present in this matter: the wide margin of appreciation in matters of social policy; hb was just one of the benefits to which RG and his household were entitled (although this might, in itself, have reaised a point of discrimination: at [28]); increased costs of administrations of difficult questions around whether children could reasonably share a bedroom (Judge Turnbull has obviously heard of my children, a case for a bright line in their own right); and finally, the mitigating factor of the discretionary hardship payment (at [27]).

Both IB and RG have been given permission to appeal to the Court of Appeal with the suggestion by Judge Turnbull that it might be sensible for them to be heard together.

Finally, hat tip to Adam Wagner for putting these appeals our way.