England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, Administrative Court
His Honour Judge Gilbart QC

[2006] EWHC 2478 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/06/2007

Lord Justice Pill :

1. This is an appeal against a decision of His Honour Judge Gilbart QC, sitting as a Deputy High Court Judge, dated 10 October 2006, by which he quashed housing benefit redeterminations made by the Rent Service ("the appellants") relating to premises at 100, West One Peak, Cavendish Street, Sheffield S3 7SR of which Mr Daniel Heffernan ("the respondent") was the assured tenant. The appeal was opened as raising a short but important point: what is the meaning of the word "locality" in Part I of Schedule 1 to the Rent Officers (Housing Benefit Functions) Order 1997 ("the 1997 Order"), as amended?
2. A discrete point having been identified, it is not necessary to set out comprehensively the statutory scheme under which housing benefit is determined and paid. The criteria for entitlement are set out in Section 130 of the Social Security Contributions and Benefits Act 1992, which also provides that Regulations shall prescribe the manner in which the appropriate maximum housing benefit is to be determined in any case (sub-section (4)). Section 122 of the Housing Act 1996 empowers the Secretary of State for the Environment by order to require rent officers to carry out such functions as may be specified in the order in connection with housing benefit. The 1997 Order was made pursuant to such powers. By article 3(1)(a) of the 1997 Order, a rent officer shall make determinations in accordance with Part I of Schedule 1 to the Order. (By virtue of Schedule 3, Schedule 1 also applies to redeterminations). Paragraph 4 of Part I to the Schedule requires the rent officer to make a determination of a local reference rent ("LRR"). The LRR acts as a cap on the amount of housing benefit a claimant is entitled to receive.
3. Before applying the formula in the paragraph, the rent officer is required to consider whether the dwelling "exceeds the size criteria for the occupiers" (paragraph 2). As to the level of LRR, he must consider whether, in his opinion, the rent payable under the tenancy of the dwelling is significantly higher than the rent which the landlord might reasonably have been expected to obtain under the tenancy (paragraph 1) and whether, in his opinion, the rent payable for the tenancy of the dwelling at the relevant time is exceptionally high. The findings of the rent officer on all three issues were in the respondent's favour and are not now challenged. It is necessary to refer to these procedures only to consider whether, in the context of the scheme, they throw light on the meaning of "locality" in paragraph 4.
4. The determination, under paragraph 1, whether the rent payable is significantly higher than the rent which the landlord might reasonably have been expected to obtain, is by reference to the level of rents under similar tenancies of similar dwellings "in the vicinity". "Vicinity", in so far as is material, means "the area immediately surrounding the dwelling."
5. The determination, under paragraph 3, whether the rent payable is exceptionally high, is made by reference to similar dwellings "in the same neighbourhood". "Neighbourhood", means, in so far as is material: "where the dwelling is in a town or city, the part of that town or city where the dwelling is located which is a distinct area of residential accommodation".
6. Issues do not arise on the effect of those paragraphs. Their general purpose was stated, without dissent, to be:

a) under paragraph 1, to determine, for example, whether the rent of a flat in a block of flats was of the same order as other flats in the block ("the vicinity") and;

b) under paragraph 3, whether the rent was of the same order as rents in the "neighbourhood", which might affect rents, for example, in a prestigious block of flats where rents are out of keeping with others in the distinct area of residential accommodation.

7. Where a rent officer determines that the rent is "significantly higher", under paragraph 1, he shall determine the rent which the landlord might reasonably have been expected to obtain under the tenancy. Where the rent is "exceptionally high", under paragraph 3, the rent officer is required to determine the highest rent, which is not an exceptionally high rent, which a landlord might reasonably have been expected to obtain in the same neighbourhood.
8. That leaves only one test in issue. Paragraph 4 provides, in so far as is material:

"(1) The rent officer shall make a determination of a local reference rent in accordance with the formula-

R = (H + L) / 2

Where-

R is the local reference rent;

H is the highest rent, in the rent officer's opinion, —

(a) which a landlord might reasonably have been expected to obtain, at the relevant time, for an assured tenancy of a dwelling which meets the criteria in sub-paragraph (2); and

(b) which is not an exceptionally high rent; and

L is the lowest rent, in the rent officer's opinion, —

(a) which a landlord might reasonably have been expected to obtain, at the relevant time, for an assured tenancy of a dwelling which meets the criteria in sub-paragraph (2); and

(b) which is not an exceptionally low rent.

(2) The criteria are—

(a) that the dwelling under the assured tenancy—

(i) is in the same locality as the dwelling;

(ii) is in a reasonable state of repair; and

(iii) has the same number of bedrooms and rooms suitable for living in as the dwelling (or, in a case where the dwelling exceeds the size criteria for the occupiers, accords with the size criteria);

. . .

(6) For the purposes of this paragraph . . . "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."

9. Prior to the amendment of the Order in 2001, the word "locality" was used in paragraphs 1, 3 and 4 whereas the amended order, as appears, has the word "locality" only in paragraph 4 and has "vicinity", with a definition, in paragraph 1 and "neighbourhood", also with a definition, in paragraph 3. Moreover, there was no equivalent of paragraph 4(b) in the pre-2001 order and thus no definition of "locality". (Fresh provisions took effect in November 2006 but we are told they are not materially different for present purposes.)
10. In R (Sadaat & Others) v The Rent Service, [2001] EWCA 1559, the question whether the administrative borough of Stockport was a locality within the meaning of that term in paragraph of 4 of the order, before the 2001 amendments, was considered in this court. The court reversed the finding of the trial judge, Maurice Kay LJ. The leading judgment was given by Sedley LJ, with whom Kennedy LJ and Mummery LJ agreed. The judge in the present case, rightly in my view, accepted that the word "locality" as defined by Sedley LJ cannot be read across into the new definition, because it was being defined in a different statutory context. It is not contended that the reasoning of Sedley LJ can be directly applied to the amended order but it is, nevertheless, relevant to have it in mind.
11. Sedley LJ stated:

"10. It is evident that the local reference rent is a blunt instrument which can depress an individual's benefit below a level which is neither "significantly" nor "exceptionally" high, but cannot elevate it if for other reasons it falls below the local reference rent level. It is also evident, both from the text and from its history, that this effect is intentional. So an argument simply from hardship cannot succeed. Nor, however, should an argument simply from economic policy succeed – for example that it is consonant with the intent of the Order that as large an area as possible should be taken in order to depress the local reference rent level for better-off areas and so limit the housing benefit bill. Mr Fetherstonhaugh rightly disavows any such construction: he accepts that the comment of Lord Bingham MR in Ex parte Gibson . . . that the benefit assessment procedure is not designed to produce homelessness is as true of the [as then] amended Order as it was of the earlier version. Both counsel accordingly have concentrated their submissions on making sense of the words on the page.

11. Although both counsel start from the proposition that it is an ordinary English word, "locality" as used here, while certainly not a term of legal art, necessarily has a meaning, or a range of meanings, geared to its context and purpose. The context, Mr Luba submits, includes the use of the same word in the three preceding paragraphs to denote a plainly more restricted area than has been adopted for paragraph 4. While paragraphs 1 to 3 do not use the word "locality" to mean some defined geographical or administrative area, in all three places it clearly requires regard to be had to the near neighbourhood of the subject letting: why else would two of the three paragraphs need to contain fallback provisions introducing some elasticity into the concept of locality in the interests of practicability? But as Mr Fetherstonhaugh points out, wholly different meanings of this very word within a few lines are not unknown – for example as used in subsections (1) and (2) respectively of s.70 of the Rent Act 1977 (see Metropolitan Property Holdings Ltd v Finegold [1975] 1 WLR 349, DC). It does not follow, therefore, that the meaning in paragraph 4 is necessarily the same as in the preceding three.

12. To decide whether it is the same or not, and at all events whether it is on any view large enough to encompass the whole of Stockport, it is necessary to consider the policy and objects of this Order in its [then] amended form. We are not concerned here with policy in the sense of what ministers hoped or intended to achieve in financial terms, but with what the amended Order itself (which by s.122(6)(a) of the Housing Act 1996 was subject to negative resolution in Parliament) displays as its essential objective. This, in my judgment, is to limit the housing benefit which is otherwise payable on grounds of reasonable individual need to the median point between the upper and lower ends (excluding exceptional cases) of the local market in dwellings with similar living space (actual or assumed) and in a reasonable state of repair. To this extent, but no more, its purpose is to intervene in the market. It is not to drive people who have had to fall back on housing benefit out of more affluent areas where the benefit rules would otherwise have enabled them to remain and into poorer areas. If that were desired, it would require clear provision – for example by a recasting of paragraph 3, which is designed to avoid subsidising market-priced but excessively comfortable accommodation. It cannot fairly be deduced from the terms of paragraph 4.

13. It follows that it offends the purposes of the Order to take as the relevant locality an area so large that the poorer dwellings in it will inexorably bring the median, and with it the cap, down to a level which drives out or pauperises otherwise eligible housing benefit claimants. The fundamental purpose of the housing benefit scheme is the very opposite: it is to ensure that people who are not under-occupying property and not over-paying rent are not made homeless through genuine inability to pay. This is the context in which the purpose of the local reference rent has to be established. While, as a limiting procedure, it undoubtedly qualifies the basic purpose, it is not designed to negative it. Its objective, in its context, is that a rent should not be subsidised above the median or average level (the two are mathematically the same here) for the locality. That in turn implies a necessary geographical and demographic restraint on what can be legitimately regarded as the locality. Just as the court will intervene if too narrow an area is taken to accommodate the statutory purpose (Metropolitan Property Holdings Ltd v Finegold [1975] 1 WLR 349, DC), so it must intervene if too large an area is taken.

14. As the Secretary of State pointed out in the memorandum referring his proposals to the Social Security Advisory Committee (paragraph 20), "Localities are fluid representations of property markets and can be quite variable in size." In his witness statement Mr Cannon, the rent officer who made the redetermination in Ms Dinsdale's case, explains that

"If a general level for four-room accommodation were required, to restrict researches to just a few streets or a neighbourhood at the heart of the area would not provide the generalised view and would be based on limited evidence . . . Hazel Grove . . . is a semi-suburban area . . . Residential property is principally semi-detached or terraced houses, mainly in owner-occupation. There is limited evidence of private rented accommodation . . ."

This one accepts; but it leaves open the question whether an area as large as the metropolitan borough of Stockport, containing as it does twelve discrete named areas, is the only alternative. Mr Luba points out that the Order, which could perfectly well have specified the rent registration area or the local authority area, does not do so; and Mr Fetherstonhaugh accepts that to take, say, Greater Manchester (of which Stockport forms part) as the material locality would be irrational, though he did not find it easy to say why.

15. In my judgment the reason is that it is contrary to the meaning and purposes of the Order and of the statutory scheme of which it forms part to treat an area as large and diverse as Stockport, and even more so Greater Manchester, as the relevant locality for the purposes of setting a local reference rent under paragraph 4 of the first schedule to the Order when an immediate locality capable of furnishing a local reference rent can readily be identified. If locality does not stop here, there is no answer to the question "Where does it stop?"

16. As a matter of construction, accordingly I would hold that in none of the first four paragraphs of Schedule 1 to the Order as amended does "locality" necessarily refer to a particular geographical or administrative area, and that in all of them it signifies an area no greater than will enable the rent officer reliably to make the specified calculations and judgments. In each case this will depend on the character of the area in which the dwelling is located and on the data available there; but in none of the four paragraphs, for the reasons I have given, can it lawfully be an area as diffuse or as arbitrarily related to the subject dwelling as the administrative borough of Stockport.

17. For this reason the four material decisions must be quashed. Beyond this point, the court should heed what has been said more than once about the importance of letting expert decision-makers such as rent officers form their own view about the precise extent of a locality so long as they stay within the law: see Metropolitan Property Holdings v Finegold (above, 353-4). It will be for the rent officer service to redetermine the local reference rent in each of these four cases in accordance with the judgment of this court."

12. Part I, as amended in 2001, plainly creates a hierarchy of geographical areas; vicinity, neighbourhood and locality. It provides that a locality must comprise two or more neighbourhoods. It must contain residential premises of a variety of types, and including such premises held on a variety of tenancies. It introduces a test based on an area within which a tenant "could reasonably be expected to live". Argument has centred on the meaning of sub-paragraph (b) of paragraph 4 and the extent to which it requires a qualitative comparison of facilities and services available with a view to limiting a "locality" to an area within which access to services and facilities of a comparable standard is possible.
13. In this case, the appellants defined the relevant locality by reference to postcodes which substantially correspond with the boundaries of the administrative area of the City of Sheffield. It is identified by reference to postcodes. The appellant relied on an assessment by Mr W.L. Spedding, who has been employed by the appellants as a redetermination officer since November 1999. Schedule 3 to the Order requires that, on redetermination, the officer consults with other rent officers in relation to the determination. Mr Spedding says that he consulted with two other rent officers who also had first hand knowledge of Sheffield and the surrounding area.
14. In a very detailed judgment, the judge criticised both the manner in which the appellants' evidence was presented and the substance of the assessment. As to the first, the judge found, in paragraph 78, that the locality had been defined by the appellants before Mr Spedding made his redetermination. It was incumbent on the appellants, he held at paragraph 55, to have disclosed the material relating to the process by which the locality in this case had in fact been defined in the way that it was. I share the judge's surprise that no such source documents are available. A practice had grown up of treating the area as defined in this case as the locality. However, Mr Drabble QC, for the respondent, made clear that relief had been and is sought because the assessment placed before the court, Mr Spedding's assessment, was deficient on its merits, and not because of any procedural failure. The judge concluded, at paragraph 80:

"I therefore conclude that Mr Spedding

a. used a meaning of "locality" in his determination which was inconsistent with that in the Order

b. relied on the inadequate work done before he made his redetermination

c. when making his redetermination, failed to make any assessment of the matters required under subparagraph 4(b) of the Order. [4(6)(b) must have been intended]

I express no view at all on whether a Rent Officer might properly conclude that Sheffield is a "locality" for the purposes of the Order. All that I do say is that such a conclusion must be reached properly, and not in the very unsatisfactory way in which this one was."

15. Referring to paragraph 4(6)(b), the judge stated, at paragraph 28:

"The second criterion requires an analysis of health, education, recreation, personal banking and shopping provision from the point of view of a tenant in the dwelling under consideration, albeit not the particular tenant. That analysis requires that attention is given to both type and standard. It is agreed before me, and I so hold, that "standard" requires consideration of the quality of the facility or service in question. If one considers education for example, "type" will refer to the type of school (e.g., primary, secondary, independent, sixth form college etc) and "standard" will relate to its quality. Mr Strachan, despite his acceptance that "standard" required a qualitative assessment, also submitted that (for example) in terms of education, "standard" meant no more than type, and that it would be a wholly subjective exercise for a rental officer to assess the quality of one school against another. I reject that argument as illogical and unrealistic. It is illogical because it would make the words "and standard" otiose. It is unrealistic because it overlooks what actually occurs. As set out by Ms Fletcher in her evidence for the claimant, Local Education Authorities and the Department of Education now publish data relating to school examination results and performance. In my judgment, the inclusion of the words "and standard" must have been designed to require a qualitative judgement. The degree of analysis may of course be less substantial, probably much less so, than a prospective parent would carry out."

16. By way of example, the judge referred, at paragraph 30, to educational facilities:

"An hour or so spent considering the published material and in discussion with an LEA officer once a year would enable information to be provided which could be used to inform the choice of locality for determinations over the next 12 months."

As to health and recreation facilities, the judge stated, at paragraph 31:

"All such information is readily available, whether in Health Authority or Local Planning Authority material, in written form or often on the internet. The NHS, for example, keeps information on which GP practices have spare capacity for new patients."

17. At paragraph 32, the judge rejected the idea that such investigations are in any sense "unusual or burdensome":

"These are matters often considered by valuers, or by house builders and other developers or their advisors, or by local authority planning officers. A broad brush approach may well suffice, provided that the criteria are addressed. But most importantly, the criterion in the Order is explicit that a judgement must be formed on such issues when considering how a locality is to be determined."

18. The judge reminded himself, at paragraph 37, that it is not for the court to substitute its own view for a properly made professional judgment by the rent officer. The court's task is "to check whether, in reaching that judgment, he applied the proper criteria to the relevant information, but not to criticise his judgment if he did so."
19. The judge considered Mr Spedding's assessment and also that of another rent officer, Mr Shaw, in a previous redetermination. He could not accept that Mr Spedding's assessment demonstrated that any real analysis had taken place.
20. The 2001 amendment took effect on 6 November 2001, that is shortly after the decision of this court in Sadaat. The judge considered, in considerable detail, circulars, issued by the appellants on 25 June 2001 (GA18a/2001) and 14 December 2001 (GA/24/2001). He came to the conclusion that they misinterpreted the criteria in paragraph 4(6) of Part I, as amended, giving reasons. Although I mention features of them, I do not consider it necessary to consider the circulars in such detail. They may have some value, by way of explanation or showing policy intentions but, for better or for worse from the appellants' point of view, it is the task of the court, and not the appellants by way of circular and guidance, to construe the Order.
21. The policy intention is, however, clear: to nullify the perceived approach by this court in Sadaat ("a locality should signify an area no larger than it needs to be to allow a rent officer reliably to make the specific calculations") and to permit "an area large enough to take account of the bigger picture, which reflects a more generalised choice of housing. Localities are intended to reflect the qualities, both good and bad, of an area". (Hansard, 14 January 2002 First Standing Committee on Delegated Legislation, column 12.)
22. The appellants have contended, quoting the minister's statement when the Order was laid before Parliament, that the effect of the amended order was to restore "the status quo before the court case [Sadaat] but with greater clarity". It is clear that the Order was laid before Parliament in response to the decision of this court in Sadaat, though it had been prepared earlier.
23. In both circulars, locality was defined as:

"Meaning a broad geographical area comprising a number of neighbourhoods with a mix of property types and tenure, where a tenant could, as an alternative to the dwelling in question, reasonably be expected to live and benefit from similar amenities."

The December circular also provided:

"This again confirms existing practice and continues to mean that

A locality is made up of a number of rental markets.

A locality has got to be at least as large as two adjoining neighbourhoods, and will usually be more.

"Two or more" is not a limiting or arithmetic factor- it is purely a direction to use more than one neighbourhood. For example, a locality, which is made up of a city and its immediate area, could easily comprise 20 to 30 neighbourhoods".

24. Mr Spedding described the relevant property as "a modern purpose-built eight storey development in the heart of the city centre of Sheffield". It was built to a high standard. In the respondent's claim form, the city centre is said to be "a more affluent area in comparison with other areas within the city". Depending, as it does, on producing a median figure, the LRR will be lower if the premises are included in a locality which also includes the more deprived areas of Sheffield which, we are told, are mainly in the South East of the city.
25. The appellants relied, as their assessment, on a document, described at the hearing as the framework document, annexed to a letter of 17 March 2005 to the respondent's solicitors and Mr Spedding's statement dated 28 April 2006 prepared for the hearing before the judge.
26. The framework document, headed "Sheffield locality", describes Sheffield as a city of more than half a million people. It is the United Kingdom's fifth largest city but, because it is a free standing city, it forms only the eighth largest conurbation. The whole locality is covered by Sheffield City Council with twelve Area Action Panels introduced in 1995 to improve the quality of life in the neediest areas.
27. A description is given of the services in the city under the headings shopping, healthcare, education, recreation, banking and transport. Reference is made to the good variety of shops and services in the city centre. Neighbourhoods have secondary shopping areas with many large supermarkets throughout the city. All the main healthcare surgeries are available throughout the locality with GP referrals normally to one of the main hospitals in the city, of which there are five. Reference is made to the University of Sheffield and to Sheffield College. Primary and secondary schools, both private and local authority run, are spread throughout the locality. The catchment area for the best performing schools acts as a key factor when people are selecting where to live. All the major banks and building societies are represented throughout the locality both in the city and the neighbourhoods. Cash dispensers are widely available. The locality is well served by transport links.
28. Mr Spedding said that, having considered the nature and characteristics of the area, he came to the conclusion that Sheffield and its rural hinterland form the suitable locality for the purposes of the LRR redetermination. He stated:

"I also considered in my professional judgement that the whole of the city of Sheffield and some of its surroundings formed a cohesive area in which a prospective tenant living in Sheffield Central could in fact exercise reasonable choice when looking for a home and within which he might reasonably be expected to live having regard to the factors identified above. Access to services of the same type and similar standard throughout Sheffield is broadly the same, and travel times by both private and public transport allow cross-city travel for access to these services and facilities. Although there are a number of locally named areas throughout the city, I concluded that there were only 13 distinct areas of residential accommodation within the locality, having regard to the definition of neighbourhood in paragraph 3(5)(a) of Schedule 1 to the Order. I considered that the rural hinterland was an area within which the Claimant could reasonably be expected to live having regard to the factors contained in paragraph 4(6)(b) of the Order relating to the facilities and services and distance of travel by public and private transport to those facilities and services including those within Sheffield itself. Consequently I felt that the locality I used provided both the variety of property types and tenures and the other requirements indicated by the definition in the Order."

Later in the statement, Mr Spedding stated:

"I applied the requirements of paragraph 4(6) of Schedule 1 to the Order and I took account of the internal guidance in my consideration."

He considered Sheffield to have 13 neighbourhoods for the purposes of the Order:

"I determined the locality on the basis that it was objectively reasonable for a notional tenant of the subject dwelling to consider the whole of Sheffield having regard to those factors. The whole area has the twin attributes of good access to similar facilities and services over a broad area."

29. In seeking to uphold the conclusion of the judge, Mr Drabble's central submission is that the appellants made no adequate analysis to support the conclusion reached when defining the "locality". He relies on the presence of the expression in paragraph 4(6)(b): "facilities and services of the same type and similar standard". When considering whether the tenant could "reasonably be expected to live" in another dwelling, which are the driving words in the sub-paragraph, a comparison is necessary between facilities in Central Sheffield and those in other neighbourhoods. Only if those facilities are of the same type and standard can the two dwellings be in the same locality. For example, Mr Drabble submits, an area in South-East Sheffield, which he defined by reference to postcodes, should be analysed, using a range of indicia and by reference to the type and standard of services and facilities available. Understandably, Mr Drabble has not sought to define what the localities in the Sheffield area should be. His submission is that, in the absence of an adequate analysis, in accordance with the statutory criteria, by the appellants their decision on the redetermination must be quashed.
30. Mr Drabble relies on a statement submitted by Ms K Fletcher, the respondent's solicitor. She stated:

"However, in the case of the 'Sheffield locality' used for the Claimant's rent determinations, evidence shows that the area used is so large as to include many areas which, in comparison with the central area, are in fact qualitatively quite different, and in which the type and standard of amenities available are strikingly different from, and indeed inferior to, those available in the area of the Claimant's home."

Ms Fletcher went on to refer to "the exceptional level of variation between [Sheffield's] different areas, including extremes of affluence and socio-economic deprivation, and one of the reflections of this is in terms of the widely differing types and standards of local facilities and services available in different areas". By way of example, reference is made (and cited by the judge) to significant distinctions between different areas in terms of the performance of schools, as demonstrated by school performance tables published by the Department for Education and Skills. Schools in areas of relative deprivation have levels of attainment significantly below the national average. Ms Fletcher submits that the locality in this case has been drawn too widely.

31. A document was produced (which was not before the judge) headed 'Description and Profile of Rutland Locality'. It was prepared by the appellants for the purposes of the 1997 Order and could serve, it is submitted by Mr Drabble, as a model. It describes services and facilities in the locality, listing doctors' and dentists' surgeries, and includes a table showing the percentage of GCSE successes in each of the schools in the locality. The locality has a population of about 35,000. The variety of property types and tenancies are described.
32. The extent, in the document, of the type of assessment envisaged by the respondent for the present case is very limited. The standard of shopping is said to be "directly comparable for all parts of the locality". (The judge found that shopping was dealt with adequately in the present case.) Beyond that, all that appears by way of assessment is a statement in the conclusion:

"All of the heads in the Order are represented within the locality and all services and facilities are accessible from the locality and from all the neighbourhoods making up the locality with similar degrees of ease."

This is very far from the type of assessment sought by the respondent.

33. For the appellants, Mr Strachan has referred to the comparatively late stage at which the present point on standards was first taken, different points having been taken at an earlier stage. That does not prevent consideration of the point. The court is concerned, he submits, with the adequacy of the appellants' assessment and with the rationality of the resulting definition of the locality, in the context of the statutory requirements. The emphasis in paragraph 4(6)(b), Mr Strachan submits, is upon accessibility to facilities and services. The Order does not expressly or implicitly impose a requirement to make the detailed analysis of the comparative quality of services and facilities advocated by the respondent. Mr Spedding's assessment complied with the statutory requirements and the decision made was not irrational, it is submitted. While the provisions for housing benefit did not intend to pauperise, they conferred no right to be subsidised for living in a property in a neighbourhood where rents were high. It was fair to tenants as whole to treat Sheffield as a single locality.
34. In common with the parties, I find paragraph 4(6)(b) unclear and difficult to construe. It is centred upon the reasonable expectations of the tenant, objectively construed. A locality, within the meaning of paragraph 4(6), must not be so extensive that a tenant of a dwelling could not reasonably be expected to move to another part, having regard to facilities and services accessible in or from that other part. Subject to dispute over the expression "same type and similar standard", the parties did not demur from the suggestion that the definition in the circulars (cited in paragraph 23 above) was what was intended by the Order and that the statutory requirements were put more clearly in the circulars. The circulars include the expression "as an alternative" missing from the statutory definition, which makes clear that a comparison is required.
35. I reach the following conclusions:

a) The use of the word "locality" does contemplate a broader geographical area, especially now that the hierarchy of "vicinity", "neighbourhood", "locality" appears in the Order.

b) The requirement for "two or more neighbourhoods", and for a variety of types of premises and a variety of tenancies, imposes a minimum requirement in terms of size and variety but does not suggest a maximum.

c) The reasonable expectation in sub-paragraph 4(6)(b) is related to accessibility to services and facilities, including by means of public and private transport, and does not favour a narrow geographical restriction.

d) While no maximum is expressed, having regard to an obvious parliamentary intention to create a workable and manageable scheme for assessing LRR, an area may be too large to constitute a locality within the meaning of the Order. Greater Manchester was accepted by the appellants as an example of an area which would be too large.

e) I am prepared to conclude that the definition in the circulars, cited at paragraph 23 above, does broadly reflect the statutory intention and that paragraph 4(6) should be construed accordingly.

f) The concept, advocated on behalf of the respondent, of constraining localities to areas in which services and facilities are of a similar quality would have the effect of segregating, for the purposes of assessing housing benefit, the more deprived from the more prosperous areas. That does not appear to me to be within the purposes of the statute. It would put a premium on tenants going to more prosperous areas where higher housing benefit would be paid, and that is unlikely to have been Parliament's intention. A variety of types is contemplated within a locality. (To meet that point, Mr Drabble did faintly submit that, for a person living in South East Sheffield, the relevant locality would be the whole of Sheffield while, for a person living in the centre of Sheffield, the locality would be defined more narrowly. That would not be in accord with the Order, in my view)

36. I do not consider that the use of the word "standard" in paragraph 4(6)(b) contemplates, or requires, the detailed comparison, service by service, advocated on behalf of the respondent. Such detailed socio-economic studies are not appropriate to the assessment of housing benefit under this statutory scheme. In context, "standard" for educational and medical services can be construed as meaning services which meet the requirements of the law and the appropriate public authorities. As to shopping, for example, comparisons between a city centre and a suburb are meaningless, for present purposes, though the possibility of access to city centre facilities could be a factor in determining boundaries. Moreover, city centre, small town, suburban and rural areas are obviously different from each other and a blueprint for assessment in all parts of the jurisdiction is inappropriate and, indeed, impossible.
37. In reaching my conclusion, I am influenced by the complexity of the proposed assessment, having regard to the number and type of facilities and services to be assessed, and by the unlikelihood of Parliament requiring a segregation, for present purposes, of more affluent areas from more deprived areas. In his judgment in Sadaat (paragraphs 12 and 13), Sedley LJ saw the other side of this coin but I cannot accept, as a determining factor in deciding locality boundaries on the Order as now amended, a requirement to keep housing benefit up in more affluent areas and to keep it down in less affluent areas.
38. Mr Spedding's assessment, read with the framework document, does in my judgment amount to a sufficient assessment, and one which complies with the requirements of paragraph 4(6) of the Order, in determining the boundaries of the locality in which the respondent was a tenant. The assessment, summarised at paragraphs 25 to 28 above, meets the statutory requirements in each of the sub-paragraphs of paragraph 4(6). I agree with Sedley LJ in Sadaat, at paragraph 17, that it is important to let expert decision makers such as rent officers form their own view about the precise extent of a locality so long as they stay within the law.
39. While reasonably compact, the locality is, in terms of population, undoubtedly a large one but, having regard to the assessment made on this redetermination, I do not regard it as too large to enable rent officers to perform, in accordance with the wording and intention of the statutory scheme, their duty to determine LRR.
40. In my judgment, the appellants were entitled to define the relevant locality as they did and the decision was based on a sufficient assessment. I would allow the appeal and allow the redeterminations to stand.
41. I repeat that there is no separate procedural challenge in this case but I also repeat that I do not regard it as satisfactory that no clear picture has emerged as to how the locality was first defined by the appellants. Material should be available to establish how the decision as to boundaries has first been made. Moreover, while determinations on a case by case basis are required, it would clearly be unsatisfactory, in the absence of a general review, if the definition of locality differed as between different rent officers working in the same area.

Lord Justice Rix:

42. I agree.

Lord Justice Longmore:

43. I also agree.