Cotton & Ors, R (on the Application of) v Secretary of State for Work and Pensions & Ors  EWHC 3437 (Admin)
This was the Liberty backed judicial review of the bedroom tax regulations on the basis that the regulations amounted to an article 8 breach, or an article 14 breach read with article 8, or that the regulations were irrational. At issue was the status of separated families where there was shared care.
One claimant’s situation was that:
In February 2012 Southampton County Court made a shared residence order providing that the children should reside for one week at a time with each parent. The order recorded that this would be in the best interests of the children. This arrangement was put into effect. From July 2012 Ms Cotton received child benefit for her daughter, while her ex-husband received child benefit for her son.
The result of these arrangements was that Ms Cotton had responsibility under the Regulations for her daughter, but not for her son. Accordingly, from 1 April 2013 she was entitled to claim housing benefit calculated by reference to the bedroom which her daughter occupies, but not her son’s bedroom. This meant a reduction of 14%, which amounts to £13.28 per week. However, in August 2013 Ms Cotton became the primary carer of both her children. There is no evidence as to why this happened – for example, whether for some reason the shared care arrangement was not working or because circumstances changed. As a result Ms Cotton’s housing benefit was reinstated to its pre-April 2013 level. (DHP had been in payment during the April August 2013 period).
The Second Claimant had care of a nine-year-old daughter and a ten-year-old stepson in a separated family at weekends and school holidays, but was facing the two bedroom deduction on a three bedroom property. DHP had been in payment, with interruptions, but was currently in payment.
The third claimant had roughly 50/50 shared care of his 13 yo son. The mother received the child benefit. The third claimant was subject to a one bedroom deduction. He was receiving DHP on a two monthly grant basis, which continued with a couple of interruptions in the past.
The Claimants’ argument was that a failure to include the bedrooms required for the children to stay within the assessment for HB amounted to a breach of article 8.
This did not get very far. The Court’s opening observation was:
A short answer to this claim is that as a result of the DHPs received by each of the claimants, which have completely compensated for the reduction in housing benefit paid to them (or would have done, in the case of Mr Hutchinson and Mr Cohen if the correct applications had been made), none of the claimants has suffered any interference with their family life capable of amounting to a breach of article 8. They continue to live where they lived before the changes in housing benefit. Their children continue to live with them to the same extent as they did before. They have the same net income. There is at most the possibility of a change in these circumstances in the future, coupled with a degree of understandable anxiety about this possibility and the stress involved in making further applications for DHPs. Ms Lieven submits in her skeleton argument that interference in the claimants’ article 8 rights comes at the point when the loss of their home becomes a real and immediate prospect. On any view that point has not yet been reached.
However, the court went on the consider the position based on the possibility of DHP being withdrawn in the future (and these were, on the whole, short term awards of a few months at a time). On this, the DWP’s position was overstated.
Mr Coppel for the Secretary of State submits that because local authorities are required to exercise their discretion in accordance with public law principles and to comply with the Convention, it would not be open to them to withdraw DHPs if that would constitute an infringement of the claimants’ article 8 rights. That is so, but it begs the question whether or in what circumstances there would be such an infringement. I consider, therefore, that it is necessary to grapple with that question, as both parties urged me to do.
Moreover, it seems to me that there is at least an element of inconsistency in the Secretary of State’s position. Mr Coppel submits that the present claim is bound to fail as a result of the decision of the Court of Appeal in MA. However, that decision, as has been seen, depended heavily on the availability of DHPs for disabled people. However, the Secretary of State has refrained, at least in these proceedings, from saying that DHPs should generally be available to parents with secondary responsibility in cases of shared care. Indeed he declined an invitation by the claimants’ solicitors to amend the Guidance to specify that they should be available in such cases, preferring to leave this to the unguided discretion of local authorities. Moreover, when the issue of shared care was raised in the House of Lords debates on the 2012 Regulations by the Bishop of Norwich, the response of the Minister for Welfare Reform, Lord Freud, was not that DHPs would usually (or at all) be expected to deal with such cases, but that the taxpayer should not have to pay for two bedrooms for any individual child.
However, any assessment on possible changes in the DHP situation for these claimants was on the basis that:
that the withdrawal of DHPs would mean that the claimants could not continue to live in their current homes and that their children would no longer be able to live with them on a regular basis, but that a strong and loving relationship with their children would nevertheless continue. The children would lose one of what they presently regard as their two homes, but would not face any risk of homelessness or destitution and would continue to be able to live with the parent who has primary responsibility for them and continue their current schooling.
The result, in this judgment, was that
while I recognise the difficulties which the claimants may face, the situation with which I am dealing in the present case falls far short, in my judgment, of what would be required to constitute an interference with the claimants’ article 8 rights.
Further, the issue of separated families had been raised in Parliament (or at least the House of Lords) in the course of the passage of the regulations. Therefore:
There can be no doubt that the issue was drawn to the attention of Parliament, and that Parliament nevertheless voted to approve the Regulations. Parliamentary approval of the Regulations was an important feature of the Court of Appeal’s decision in MA. After summarising relevant parts of the debate at  to  of his judgment, Lord Dyson MR returned to the topic at  in giving his overall conclusion on the issue whether the discrimination against disabled people had an objective justification:
“Secondly, the need for the court to be cautious about finding unlawful discrimination of a statutory instrument passed by affirmative resolution of Parliament is heightened by the fact that some of the principal complaints that are made by the claimants were expressly raised and discussed during the parliamentary debates and rejected.”
The context for this statement was the issue whether there was justification for discrimination, but the reasoning applies similarly to the question of interference with article 8 rights as a result of legislative decisions in the field of economic and social policy.
Thus, following MA, there was a high threshold to meet to show unjustified interference with article 8 rights:
For these reasons I conclude that even if the reduction in the claimants’ housing benefit brought about by the 2012 Regulations has the effect of compelling them to move to a smaller property where their children cannot live with them, that will not of itself be an interference with their rights under article 8. Something more would be needed to reach the high threshold required in this context. In practice, however, if that something more were to exist in any particular case, the probability is that DHPs would in fact be made by a claimant’s local authority.
The regulations were not without reasonable foundation. Following MA and Ors:
I accept also that, like MA, this is a case where there is no readily definable category of persons who might be made the subject of an exemption. If parents whose children stay with them for about half the time, why not one or two nights a week? Why not grandparents or other close family members? Ms Lieven’s response was that a line has necessarily to be drawn somewhere in welfare cases, that the claimants were only required to show that the Secretary of State had failed to justify the Regulations in their case, and that it was for the Secretary of State to bring forward appropriate proposals. I accept, however, that the difficulty of defining an appropriate category of persons with secondary responsibility in shared care cases to whom the Regulations should not apply is a relevant consideration, for the same reasons as given by the Court of Appeal in MA.
For the purpose of this stage of the argument, I am proceeding on the basis that although the fact that the claimants have to move to a smaller property where their children cannot live with them will not of itself be an interference with their rights under article 8, there may be cases of particular hardship over and above the reduction in family life which that situation necessarily involves and that such cases of particular hardship may on appropriate facts pass over the high threshold required to amount to an interference with article 8 rights. In that event, I accept that local authorities would be required to consider applications for DHPs so that if in a particular case a reduction in housing benefit did threaten to infringe Convention rights, the relevant local authority would have a duty to consider awarding a DHP to avoid that infringement. In the light of MA, that is the appropriate approach to the question of justification. (Conversely, however, if — contrary to my decision — the appropriate assumption is that if the claimants have to move, that will of itself interfere with their article 8 rights, whether the availability of DHPs provides sufficient justification is less clear. Such a conclusion would be tantamount to deciding that in every case where a parent with significant secondary responsibility would otherwise be forced to move, there is an obligation on the state to make good the housing benefit shortfall by means of DHPs. That would appear to be a far-reaching conclusion, although on the view which I take it does not arise).
So, there was no article 8 breach because DHP was in payment.
Even if DHP had not been in payment, simply having to move to a smaller property would not in itself amount to an article 8 breach without more.
And even if article 8 rights were engaged and arguably breached, there would be an obligation on the local authority to consider paying DHP, and thus the DHP scheme amounted to sufficient justification to prevent the putative Article 8 breach, and to prevent the regulations from being manifestly without reasonable foundation.
The followup arguments on article 14 discrimination against ‘parents with secondary responsibility’ (though accepted as an ‘other status’ for discrimination purposes) and irrationality of the regulations consequently failed.
Given recent Upper Tribunal decisions (referenced in this judgment), this does not come as a huge surprise. As with other challenges, DHP actually being in payment is to a degree fatal to establishing a human rights breach in the regulations. It is disappointing to see the court take this view even on manifestly short term DHPs, and for a situation that is not covered in the DCLG guidance on DHP support, but it does cement the position that we have previously observed, that DHP in payment is increasingly a requirement in individual cases to avoid the regulations being unlawful.
I’m aware that a number of appeals to the Upper Tribunal have been stayed pending this judgment. This decision will not be good news for the tenants.