England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS

		Royal Courts of Justice Strand London WC2
		Thursday, 18 January 2001

1. LORD JUSTICE MANTELL: I will invite my Lord, Mr Justice Cresswell, to give the first judgment.
2. MR JUSTICE CRESSWELL: This is a challenge, by permission of Lord Justice Laws, to a decision of Social Security Commissioner Mesher dated 22 September 1999.
3. The Commissioner allowed Mr Saleem's appeal against the decision of the Birmingham Social Security Appeal Tribunal held on 17 April 1996 and remitted the matter to a fresh appeal tribunal. However, Mr Saleem was only successful on a limited point - that the tribunal had not considered whether his housing costs were incurred before 3 May 1994. It is now accepted by the appellant that his housing costs were incurred after that date, and therefore this part of the decision is of no benefit to the appellant. The appellant therefore challenges the second part of the Commissioner's decision (paragraphs 16 and following). At issue is whether the appellant is entitled to have the full amount of his mortgage interest payments taken into account for the purposes of the calculation of income support.
4. The appellant lives with his wife and eight children. He has four boys, born 29 October 1979, 11 October 1980, 26 November 1981 and 28 November 1982. The four youngest children are all girls, the eldest born on 16 January 1985.
5. The appellant was awarded the Higher Rate Mobility Component of Disability Living Allowance from 30 June 1993 to 29 June 1996 and the Lowest Rate Care Component from 9 November 1993 to 29 June 1996. The awards were made on the basis of arthritis, dizzy spells and low blood pressure.
6. Before 10 May 1994 the appellant lived with his family in a three-bedroom property at 200 Warwick Road, Birmingham. The property was subject to a mortgage of some £19,000. There were three bedrooms and two living rooms at Warwick Road. The appellant slept downstairs in one of the living rooms so that he was on the same floor as the bathroom. His eldest son had the smallest bedroom to himself because he preferred to sleep alone; the then youngest daughter (and sometimes the second youngest daughter) slept with his wife in another bedroom, and all the remaining children were in the third bedroom.
7. On 10 May 1994 the appellant sold 200 Warwick Road for £38,000 and moved to 20 Fernley Road, Sparkhill, Birmingham, which he bought for £38,000, having taken out a mortgage of £34,000. The balance payable to the appellant after these transactions was £14,549. Fernley Road is a bigger property than Warwick Road, having three bedrooms and three living rooms. A bathroom was subsequently added downstairs. The appellant now sleeps in one living room downstairs, the four boys sleep in one bedroom and the girls sleep in the other bedroom, although the younger girls may sleep with his wife in the third bedroom.
8. The Adjudication Officer decided to restrict the amount of applicable housing costs to the amount allowed in respect of the old house. This restriction was made under Schedule 3, paragraph 5A of the Income Support (General) Regulations 1987. Paragraph 5A came into force on 2 May 1994.
9. On 17 April 1996 the Birmingham Social Security Appeal Tribunal upheld the Adjudication Officer's decision. Social Security Commissioner Mesher did not find any error of law in the Appeal Tribunal's application of paragraph 5A (save for the point referred to above which, it is now accepted, does not arise on the facts).
10. Three issues arise on this appeal:

1.Did the Commissioner err in law in his construction of sub-paragraph 5A(9)(b)?

2.Was sub-paragraph 5A(9)(b) ultra vires for irrationality?

3.Was sub-paragraph 5A(9)(b) ultra vires for failing to comply with the enabling legislation?

11. Section 174(2) of the Social Security Administration Act 1992 provides:

"If after receiving a report of the [Social Security Advisory] Committee the Secretary of State lays before Parliament any regulations or draft regulations which comprise the whole or any part of the subject-matter of the proposals referred to the Committee, he shall lay with the regulations or draft regulations a copy of the Committee's report and a statement showing -

(a)the extent (if any) to which he has, in framing the regulations, given effect to the Committee's recommendations; and

(b)in so far as effect has not been given to them, his reasons why not."

12. I now refer to the regulations in force at the relevant time.
13. Schedule 3 to the Income Support (General) Regulations 1987, paragraph 1, sets out the eligible costs for the purpose of calculating applicable amounts in regulation 17. Paragraph 5A sets out certain housing costs which are not met by income support. These are prima facie those which are incurred after 2 May 1994. Sub-paragraph 5A(6) provides that housing costs falling within the conditions in sub-paragraph (9) shall be met.
14. Sub-paragraphs 5A(6) and (9) provide:

"(6) Notwithstanding sub-paragraph (1), the housing costs shall be met in accordance with the provisions of this Schedule in the case of a claimant who satisfies the conditions specified in sub-paragraph (7), (8), (9) or (10) below, but -

(a)subject to any additional limitations imposed by the sub-paragraph; and

(b)where the claimant satisfies the conditions in more than one of those sub-paragraphs, only one sub-paragraph shall apply in his case and the one that applies shall be the one most favourable to him.

(9) The conditions specified in this sub-paragraph are that -

(a)the loan commitment increased in consequence of the disposal of the dwelling occupied as the home and the acquisition of an alternative such dwelling; and

(b)the change of dwelling was made solely by reason of the need to provide separate sleeping accommodation for children of different sexes aged 10 or over who are part of the same family as the claimant."

15. 1.Did the Commissioner err in law in his construction of sub-paragraph 5A(9)(b)?
16. The Social Security Appeal Tribunal held:

"We consider that Mr Saleem reasonably moved to larger accommodation because of his expanding family but the Regulations appear to make no provision for this. This is curious because it appears that if someone had a very large family of children all of the same sex then no provision is made for an increased loan whereas a smaller mixed sex family might well mean that a claimant may qualify. The argument put forward by the representative in respect of both disability and the separate sleeping accommodation requirement related mainly to the need for a larger property. But it was argued quite reasonably that when Mr Saleem was sleeping downstairs at the smaller property, there was little living accommodation for the remainder of the family. The bigger bedrooms in the new house clearly provide better accommodation for the children. Nevertheless the arguments relating both to disability and to the children are concerned with the need for larger accommodation. The needs of Mr Saleem for his disablement alone are met equally by both properties. Sub-paragraph (9) states that the change of dwelling must be made 'solely' by reason of a need to provide separate sleeping accommodation for children of different sexes. In this case that was not the sole reason, the reason was mainly to provide more adequate i.e. roomy accommodation."

17. The Commissioner dealt with the meaning of "solely by reason of" in paragraph 17 of his decision as follows:

"The first issue, the meaning of 'solely by reason of' in paragraph 5A(9)(b), is a very difficult one. I think it is fair to say that Mr Scoon struggled to find a sensible meaning to put forward. The problem is that in practice in every case there will be some additional reason for choosing the particular new home as well as the need to provide separate accommodation for children of different sexes. If liking the garden of the new home or the colour of the front door takes the case outside paragraph 5A(9), then the provision can never have any practical application. Such an interpretation is therefore to be avoided. I think that it can be avoided by looking primarily at the reasons why it was decided to move from the old home. However, I shall not go into all the difficulties, because in my view the appeal tribunal did not err in law in concluding that the claimant did not come within paragraph 5A(9)(b). The basis for its conclusion was that the main reason for moving from the old home was to acquire more roomy accommodation generally. That was a finding which it was entitled to make on the evidence and was one which meant that the change of home was not solely by reason of the need to provide separate accommodation for children of different sexes, within the proper interpretation of paragraph 5A(9)(b)."

18. Miss Elliott, for the appellant, has submitted that the Commissioner erred in law in deciding that, in order to ascertain if the requirements of sub-paragraph 5A(9)(b) were satisfied, it was necessary to look "primarily at the reasons why it was decided to move from the old home". The Commissioner's definition was, she submitted, erroneous in that it did not satisfy the requirements of the sub-paragraph, namely that the change of dwelling was made solely for the one reason specified. The definition the Commissioner proposed created a subjective test. Miss Elliott submitted that the appropriate test should be an objective one: was the move to prevent the offence which occurs when children of the opposite sex over 10 share sleeping accommodation?
19. In my view the Commissioner's construction of the sub-paragraph was correct. The relevant question was whether the change of dwelling was made solely by reason of the need to provide separate sleeping accommodation for children of different sexes aged 10 or over. It was necessary to focus on the reason for the change of home. If the operative reason for the change was not the need to provide separate sleeping accommodation for children of different sexes of 10 or over, the condition would not be met. Warwick Road and Fernley Road contain the same number of bedrooms. The Appeal Tribunal found that "the reason was mainly to provide more adequate i.e. roomy accommodation". As the Commissioner said, that was a finding which the Appeal Tribunal was entitled to make on the evidence, with the result that the condition was not met. Each case will turn on its own facts. If the sole or exclusive reason for a change of home is the need to provide separate sleeping accommodation for children of different sexes aged 10 or over, the condition would be met even if the new home selected incidentally carried other benefits for the family.
20. 2.Was sub-paragraph 5A(9)(b) ultra vires for irrationality?
21. Miss Elliott submitted that the use of the word "solely" renders the sub-paragraph ultra vires for irrationality, and that the Commissioner erred in law in failing to find the sub-paragraph invalid on the ground of irrationality. Parliament, she argued, cannot have intended, when enabling the Secretary of State to make the regulations, to create an exception by way of sub-paragraph (9)(b) that could never be satisfied or to make an exception which conflicted with sub-paragraph (6)(b).
22. I cannot accept the submission that sub-paragraph (9)(b) could never be satisfied. On the contrary, if the reason for the change was the need to provide separate sleeping accommodation for children of different sexes aged 10 or over, it would be satisfied. Further, there is no conflict between sub-paragraphs (6) and (9). Where the claimant satisfies the conditions in more than one of sub-paragraphs (7), (8), (9) or (10), the sub-paragraph that applies will be the one most favourable to the claimant.
23. 3.Was sub-paragraph 5A(9)(b) ultra vires for failing to comply with the enabling legislation?
24. I have already referred to section 174(2) of the 1992 Act.
25. The Statement by the Secretary of State in accordance with section 174(2) set out the extent to which he had, in framing the regulations, given effect to the Committee's recommendations and, in so far as effect was not being given to them, his reasons why not. The material passage read:

"The Committee have made a number of recommendations in their report. These recommendations and the Government responses to them are given below:

...

(iii)to provide for new housing requirements due to an increase in the number of dependent children living in the claimant's household where the children would be regarded as living in overcrowded conditions for the purposes of the Housing Act 1985;

RESPONSE: The purpose of Income Support help with mortgage interest is to help people retain their existing reasonable accommodation. We believe that where that accommodation is inadequate help is best focused through Government housing policy which is administered by the Department of the Environment in the form of home improvement grants and rehousing for vulnerable groups. This is a more efficient way of addressing such problems than using the benefits system, particularly when the help in question is not available to people in work on low incomes. In addition, owner-occupiers who do not receive Income Support have to plan for family size in relation to their expected income and we see no reason why Income Support recipients should be treated differently.

(iv)to provide for separate sleeping accommodation for dependent children of different sexes aged 10 or over living in the claimant's household;

RESPONSE: We accept this recommendation."

26. Miss Elliott submitted that the regulation was ultra vires for failing to comply with the enabling legislation. The legislative provision, she contended, was not in keeping with the intentions expressed and was ultra vires for the misleading of Parliament irrespective of irrationality or bad faith. It should be noted that this was an argument not advanced below.
27. This Court cannot entertain any argument to the effect that Parliament was misled. By Article 9 of the Bill of Rights 1689:

"Freedome of speech - that the freedome of speech and debates of proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament."

28. It is to be noted that the regulations were subject to parliamentary control, namely the negative resolution procedure.
29. Further, I would add for completeness that in my view the wording of sub-paragraph (9)(b) did in fact reflect the response given, accepting the relevant recommendation of the Committee.
30. Further, as has been pointed out by the Court in course of argument, it would probably not be in the interests of Mr Saleem if the relevant paragraph was struck down.
31. In the result, despite the attractive presentation of the argument by Miss Elliott, I would dismiss the appeal.
32. LADY JUSTICE HALE:I agree.
33. LORD JUSTICE MANTELL:I also agree.
Order: appeal dismissed; public funded costs assessment for the appellant.