ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE UNDERHILL)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
LORD JUSTICE RYDER
| THE QUEEN ON THE APPLICATION OF ZACCHAEUS 2000 TRUST
|- and -
THE SECRETARY OF STATE
FOR WORKS AND PENSIONS
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Mr Martin Chamberlain QC appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Sullivan:
"(1) Housing benefit for private-sector tenants is calculated by reference to an "appropriate maximum housing benefit" ("AMHB"): see section 130 (1) and (3) of the Social Security Contributions and Benefits Act 1992 ("the 1992 Act"). The amount of benefit payable is the lower of the actual rent paid by the claimant and the AMHB.
(2) Section 130A of the 1992 Act provides for AMHB to be determined by regulations, which may provide for it to be ascertained "by reference to rent officer determinations": see sub-sections (2) and (3).
(3) The relevant regulations – most recently the Rent Officers (Housing Benefit Functions) Order 1997 ("the 1997 Order") – provide for rent officers to determine, for each "broad rental market area" ("BRMA"), a "local housing allowance" ("LHA") for each of a series of categories of dwellings, defined by the number of bedrooms: see article 4B.
(4) Until the changes challenged in these proceedings the nature of the exercise performed by the rent officer under the 1997 Order was that he would ascertain the range of actual levels of rent being charged in the BRMA for each category in that month, using information gathered locally, and would fix the LHA at a prescribed point in that range. Originally the prescribed point was the median of the rents in question. The LHA so determined constituted the AMHB. With effect from April 2011 changes were introduced which (a) substituted for the median the thirtieth percentile point in the range, (b) introduced an overall monetary cap for the LHA in each category and (c) removed the previous five-bedroom category, so that the maximum rate of housing benefit would relate only to four-bedroom houses. These changes were effected by the Rent Officers (Housing Benefit Functions) Amendment Order 2010 ("the 2010 Order"). The introduction of the cap was unsuccessfully challenged in R (Child Poverty Action Group) v Secretary of State for Work and Pensions  EWHC 2616 (Admin) ("the CPAG case").
(5) The effect of the 2012 Order is to substitute for that regime a system under which the LHAs in force as at 2 April 2012 are frozen until April 2013 and are thereafter to be uprated annually to the lower of (a) the figure produced by a determination using the method described at (4) above and (b) the current figure as uprated by the percentage annual increase in the Consumer Price Index ("the CPI"). In crude terms, the effect is that any increases in housing benefit will be capped at the level of general inflation, even if inflation in the rental market has been higher."
The statutory framework:
"(1) For the purpose of section 130 above, the appropriate maximum Housing Benefit (in this section referred to as the AMHB) is determined in accordance with this section.
(2) Regulations must prescribe the manner in which the AMHB is to be determined.
(3) The regulations may provide for the AMHB to be ascertained in the prescribed manner by reference to rent officer determinations."
And subsection (7):
"A rent officer determination is a determination made by a rent officer in the exercise of functions under section 122 of the Housing Act 1996."
"(1) The Secretary of State may by order require rent officers to carry out such functions as may be specified in the order in connection with...Housing Benefit...
(6) An order under this section (a) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament..."
"(1) Subject to paragraphs (3) to (11), the maximum rent (LHA) shall be the local housing allowance determined by the rent officer by virtue of article 4B(2A) or (4) of the rent officer's order, which is applicable to:
(a) the broad rental market area in which the dwelling to which the claim or award of Housing Benefit relates is situated at the relevant date, and
(b) the category of dwelling that applies at the relevant date in accordance with paragraph 2..."
"1A. On 20 March 2008 and so often thereafter as a rent officer considers appropriate, a rent officer shall in relation to each local authority:
(a) determine one or more broad rental market areas which will (during the month which next begins after the determination is made) fall in whole or in part within the area of the local authority so that every part of the area of that local authority falls within the broad rental market area, and no part of the area of that authority falls within more than one broad market rental area...
2A. No more than ten and not less than eight working days before the end of each month, the rent officer shall:
(a) in each broad market rental area determine in accordance with the provision of schedule 3B:
(i) a local housing allowance for each of the categories of dwelling set out in paragraph 1 of schedule 3B...
3A. Any broad rental market area determination made in accordance with paragraph 1A or local housing allowance determination made in accordance with paragraph 2A before 7 April 2007 shall take effect on 7 April 2007 and any subsequent determination shall take effect on the first day of the month which begins after the day on which the determination is made."
"Subject to paragraph 12, the local housing allowance for each category of dwelling specified in paragraph 1 is the amount of the rent at the 30th percentile in the list of rents for that category of dwelling."
"(1)(a) subject to subparagraph (12), the local housing allowance for a category of dwelling is :
(a) the rent at the 30th percentile determined in accordance with subparagraphs (2) to (10) where that does not exceed the amount determined in accordance with subparagraph 11, or
(b) in any other case, the amount determined in accordance with subparagraph (11)."
"(11) The amount to be determined by the rent officer for the purposes of subparagraph 1A is as follows:
(a) Where the applicable consumer prices index is a positive number, the local housing allowance last determined for that category of dwelling multiplied by the factor M, or
(b) where the applicable consumer prices index is a negative number or zero, the local housing allowance last determined for that category of dwelling."
The ultra vires challenge:
"(1) The Secretary of State may by order require rent officers to carry out such functions as may be specified in the order in connection with housing benefit..."
Section 121(1) is the predecessor of section 122(1) of the 1996 Act.
"...you do not confer functions on a doctor, all of which could be performed by any unqualified person."
The section 149 challenge
"...what is required by the section 149 duty will inevitably vary according to the circumstances of the case."
See also on this point R (Bailey & Ors) v Brent LBC  EWCA Civ 1586 at paragraphs 83 and 102.
"[The court is] not concerned with a drafting competition, and EIAs are not legal documents. Their purpose is to evidence that due regard has been had to the specified factors (so far as they are in play)..."
"For tenants whose rent is at or above the LHA rate, by 2014/2015 their award will be on average around £6 per week lower than would have been the case without this measure.",
and paragraphs 16 to 19 give four illustrative examples of the effect on individual LHA claimants, the overarching message which is conveyed by the IA is that:
"The precise impact depends on the behavioural response on the choice of accommodation made by the LHA recipients and on whether the landlords decide to restrict their rent increases."
See paragraph 11.
"There is no material before me to indicate the size of any additional or adjuvant effect of the 2012 Order in this regard, but it is inherently secondary. There is no basis on which I could find that if the issue was sufficiently considered in 2011 there were any new issues raised by the 2012 Order that required the Secretary of State to carry out a further assessment."
No such material was placed before us.
Lord Justice Maurice Kay:
Lord Justice Ryder:
Order :Appeal dismissed