England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE LATHAM: This an application for judicial review of decisions made on 8th March 1996 by the Royal Borough of Kensington and Chelsea Housing Benefit Review Board in which the Board determined to confirm decisions taken by the Council itself as to the appropriate levels of housing benefit which should be payable to the applicants in respect, firstly, of premises known as 5 Chalfont House, 19-21 Chesham Street, London SW1; and, secondly, 1, Sloane Gate Mansions, Doyley Street, SW1. The effect of the determination was that the amount of money payable by way of housing benefit was significantly less in each case than the rental which was payable under the respective tenancy agreements.

2. I propose, firstly, to set out in short form the history of the matter, then to deal with the relevant statutory provisions and the legal principles which apply and then to consider the decision of the Board which is the subject-matter of the challenge.

3. The applicants are a mother and daughter. The first applicant is the daughter. She was born on 11th January 1966 and is aged 31. The second applicant is the mother and she was born on 1st July 1936 and is now therefore 63. They have at all relevant times been living together in a single household, together with the daughter's own daughter, Leila, who was born on 27th September 1985.

4. For some time -- the precise amount of time is not relevant for the purposes of these proceedings -- they had lived together in Redbridge, and they moved to the first premises which were the subject-matter of the Review Board hearing on 14th February 1995. In the evidence that they gave before the Review Board the applicants' case was that whilst living in Redbridge they had been subjected to burglaries, Leila had at school been subjected to racist attack so that she was frightened, and the net consequence was that they did not feel that Redbridge was any more a safe area in which to live.

5. The first applicant described her health as poor. She had had chronic asthma since she was a child. She was, she said, in effect a full-time carer for her mother, the second applicant, who suffered from a significant number of disablements, including pains in her knees, feet, hands, back and shoulders and was confined when at home to a settee or a bed. Her daughter, the first applicant, cared for her and did all the shopping. She could not be left for any long periods of time. She had a tendency to fall. In particular the first applicant was concerned about any requirement to take or fetch her daughter, Leila, from school, because that would mean that she would have significant periods away from her mother with consequences which she was not happy to accept.

6. In addition to the assertions made to the Board by the applicants themselves, there was a letter from solicitors which set out the story as put forward by the applicants. That was a letter of 11th July 1995 which had been submitted to the Royal Borough of Kensington and Chelsea during the time that the Council itself was considering the problems in relation to housing benefit to which I shall come. There was also a letter of 1st September 1995 from a doctor, which stated that the second applicant suffered from osteoarthritis affecting both knees, making her general mobility very poor, that the first applicant had been suffering from long-term problems with persistent headaches and that, although there was no particular medical problem which was affecting Leila, nonetheless her mother has described her to the doctor as being anxious about her condition. As far as Leila was concerned, the most significant document was a document of 9th October 1995 which did not relate to the period while they were in Redbridge but the period after they had moved from Redbridge when Leila had attended her new school in Pimlico, which said that Leila was a shy little girl who had benefited from having a settled home and school environment and concluded, "Any change in circumstances will be disruptive at this time."

7. It will be seen that although there were quite lurid descriptions of the problems presented by the applicants, the independent evidence was perhaps not quite as significant as the actual assertions made by the applicants themselves in the material put before the Board.

8. Be that as it may, as a result of the conditions which I have described at Redbridge, the applicants decided to move as a family unit to a place of greater safety, and the only area in which they were able, they said, to obtain the security which they required, which was effectively of security cameras and some presence by way of porter or guard on the premises, was in the centre of London in an area which was the responsibility of the Royal Borough of Kensington and Chelsea and which by its nature was inevitably going to be expensive.

9. The first premises they obtained were flat 5, Chalfont House, where the first and second applicants accepted a joint tenancy of premises subject to a letting which was a three year assured shorthold tenancy. The rental was £498.63 per week and a deposit of £2,533 was required. The tenancy was subject to a clause which permitted the landlord to require possession if he wished to occupy the premises for his own use after a period of six months. The application for housing benefit was eventually made on 31st March 1995 to the Royal Borough of Kensington and Chelsea, and on 4th May 1995 the Rent Officer made his determination. He gave a valuation of £380 per week, considered that that was an exceptionally high rental and determined a figure of £295 per week as the appropriate rental. The applicants requested a review and the local authority refused the review in May 1995, whereupon, in July 1995, there was the request for the further review by the Housing Benefit Review Board.

10. Before the Board considered that particular request for review the applicants determined their tenancy of Flat 5, Chalfont House and obtained a tenancy which was a six month assured shorthold tenancy of Flat 1, Sloane Gate Mansions. The rental was £300 per week and the deposit required by the landlord was £1,300. An application was made for housing benefit by both applicants. The rent officer considered the matter and concluded that an appropriate rent was £240 per week. That figure was adopted by the local authority and there was a final refusal by the local authority to review that determination itself on 19th October 1995. So the applicants applied for review of that determination by the Board.

11. The consequence was that both matters came before the Housing Benefit Review Board on 8th March 1996 and were heard together. As I have already indicated, the Board confirmed the Council's determinations in respect of each of the two properties.

12. The statutory provisions which were engaged by the applications for housing benefit and the determinations by the Council and by the Housing Benefits Review Board were principally the Housing Benefit (General) Regulations 1987, Statutory Instruments 1987 No. 1971. These are made pursuant to the provisions of section 28 of the Social Security Act 1986, which was the original statutory provision giving authority for the payment of housing benefit. The relevant regulation is regulation 11, the relevant parts of which read as follows:

13. Then, omitting irrelevant matters:

14. Regulation 83 of the regulations provides in paragraph 2:

15. The only other relevant statutory provision is the Rent Officers (Additional Functions) Order 1990, which in paragraph 1 sets out the obligations upon the Rent Officer in regard to his functions under this particular statutory scheme. The paragraph provides as follows:

16. The obligation of the Housing Benefit Review Board to give reasons is of some significance in this particular application. It is important to note in this context, although I have not set out all the procedural matters relating to it, that the Board hears or is entitled to hear oral representations as well as written representations both by the local authority and by the applicants, and it therefore follows that the sort of reasons which are to be expected in relation to a decision by such a Board must be affected by that particular context.

17. There is one case both at first instance and in the Court of Appeal which in my view is relevant for the purposes of determining the extent of the obligation to give such reasons. At first instance the case is reported as R v Solihull Metropolitan Borough Council Housing Benefits Review Board ex parte Simpson , 26 HLR 370. In that case at page 379 Mr Justice Sedley said as follows in relation to the requirement to give reasons:

18. The Court of Appeal decision was reported as Solihull Metropolitan Borough Council Housing Benefits Review Board v Simpson, 27 HLR 41. At page 48 Lord Justice Kennedy said as follows:

19. It seems to me that there is no need for any further citations of authority to clarify the general nature of the obligation to give reasons in a case such as this.

20. In giving its reasons, the Board in the present appeals set out in some detail the nature of the evidence that had been submitted and identified the nature of the case put forward respectively by the local authority on the one hand and the applicants on the other.

21. The relevant part of the decision letter in which the reasons for the decisions were given reads as follows:

22. The Board considered carefully the question of what type of accommodation would be suitable alternative accommodation for Mrs Sultana and Ms Sheikh. The Board took into account all the representations made by both parties on this issue. In particular, the Board took into account the state of the family's health, and it was mindful of the fact that the family had been victim of a number of burglaries and that Ms Sheikh's niece had suffered a violent assault. The Board were sympathetic to the claimants on this issue, but same to the conclusion that it was not correct that only accommodation in the Royal Borough or Westminster with security cameras and a porter would be suitable. Nor did the Board consider that the family needed to be accommodated in the Borough. On balance the Board found that a three bedroom flat, on the ground floor or with access to a lift, let on an assured shorthold tenancy, anywhere in London would be suitable alternative accommodation. The Board found that it would be reasonable for the family to negotiate some stairs, as they had coped adequately at their previous properties. The Board did not consider that only an assured shorthold tenancy of at least three years duration would be suitable. In this regard, the Board considered an assured shorthold tenancy of any length would be broadly equivalent. It was noted further that the family chose subsequently to move to a property let on a six months assured shorthold tenancy...

23. The Board then considered whether it was reasonable to expect the claimants to move from the accommodation. The Board took into account the fact that Ms Sheikh's daughter, Leila, had moved school into the Borough at the start of the tenancy in February 1995. The Board accepts that Leila has settled into the School and has been there now for over a year. However, the Board did not consider that it would be unreasonable to expect Leila to move schools within the London area. The Board did take into account the letter from the School, but on balance the Board did not consider that Leila's education would have been affected adversely had she changed school. Further, even if Leila had remained at the School, the Board was not convinced that the family would not be able to make arrangements for her to safely travel to the School as there are good transport links to Pimlico. In the opinion of the Board it would be reasonable to expect the family to have moved.

24. Finally, as the claimants were in receipt of benefits at the beginning of the tenancy, the Board considered that the Authority was justified in applying the restriction from the beginning of the claim."

25. It will be noted that I have omitted in my citation of the reasons those parts of the reasons which dealt with the calculation of the appropriate rental. I have done so because that part of the decision is not challenged in any way on behalf of these applicants. It is accepted that if the Board was correct in coming to the conclusion that it did as to the appropriate property to be used for the determination of the level of rents, then the calculation that was made on that basis was a calculation which was one which cannot be challenged and that, as far as the availability of such accommodation is concerned, there was material upon which the Board could conclude that such accommodation was indeed available to these applicants. The relevant questions are, first, whether the Board has given adequate reasons for the conclusions which it has reached on the matters that I have cited from the decision; second, if so, whether it has properly identified what is suitable alternative accommodation with which to make the appropriate comparisons, and even if both those matters are found in the Board's favour, whether the Board has properly considered the position of Leila and the effect on her education of the fact that the decision which results in the applicants having to move to more appropriately priced property.

26. The arguments put forward on behalf of the applicant were as follows: Firstly, it was said that the Board had failed to give any or any adequate reasons for the conclusion which it reached that the applicants did not require accommodation which was accommodation at which there were security cameras, porters or other security personnel. It is said on behalf of the applicants that the evidence of the experiences which they underwent in Redbridge was such as to justify the conclusion that the only suitable accommodation for this particular family unit was accommodation in which they could feel secure from, in particular, the incursions of burglars and that such security could only be achieved with the provision of the security cameras and staff to which they sought to say they were entitled.

27. It seems to me that the Board adequately dealt with that particular claim on behalf of these applicants. The Board clearly accepted that the applicants had suffered from break-ins in Redbridge and had consequently suffered fear. But it seems to me a long step to take from an acceptance of those two propositions to the need to explain in any further detail than in fact was done in the decision the conclusion that there was no requirement that they should in fact have some form of security over and above the ordinary security which any householder is entitled to in his or her own premises. I do not consider that that aspect of the case requires any further elaboration than that which was given by the Board in its reasoning.

28. Secondly, it is said that the Board, having concluded that the applicants were entitled to have a three bedroomed flat on the ground floor or with access to a lift, went on to talk, in another part of the decision, of the fact that they could cope with stairs. It seems to me that that is the sort of argument which is clutching at straws. The conclusion which was clearly reached by the Board, which was the only relevant reason for the purposes of the decision which they reached, was that the comparison had to be made with a three bedroomed flat on the ground floor or with access to a lift let on an assured shorthold tenancy anywhere in London. There is nothing to show that any other factor infected the decision as to the comparison on rents which was made in that regard. It seems to me that there is nothing in that point at all.

29. The next point that was made was a more substantial point, and that is that the comparison which the Board chose was between the rental of this particular flat and a three bedroomed flat let on an assured shorthold tenancy and indicated that any length of assured shorthold tenancy would be an appropriate form of security of tenure to meet the requirements of the regulation. The regulation, it will be recollected, requires the Board to have regard to accommodation which will afford security of tenure "reasonably equivalent" to that enjoyed by the applicants in question. The argument on the applicants' behalf in this case is that the tenancy that they enjoyed in relation to Chalfont House was an assured tenancy for three years.

30. Leaving aside for the moment the complication created by the landlord's entitlement to obtain possession if he sought it for his own purposes after six months, the argument can be put simply in this way, that a three year assured shorthold tenancy provides greater security of tenure than a six month assured shorthold tenancy or, as the Board put it, a shorthold tenancy of any length. It seems to me that that misunderstands the concept that is intended for the purposes of the regulations. The regulations are concerned with the quality of the security of tenure and not, in my judgment, the length of tenure. The length of tenure will, in any event, depend upon how much of the tenancy has in fact expired by the time that any given application is made.

31. It seems to me in those circumstances the Board was entirely correct as a matter of law in taking the view that they were entitled to use an assured shorthold tenancy of any length as being the appropriate basis of comparison in order to meet this provision in the regulations.

32. Next it is said that the Board when coming to its conclusions on Chalfont House wrongly concluded that it was entitled to consider a three bedroom flat "anywhere in London" as the basis upon which to make the comparison for determining whether the rental was excessive or not. It is said that that was an unreasonably wide geographical area to take for it to provide any sensible basis for the comparison which had to be made and was therefore impermissible.

33. Reference was made on the applicants' behalf to the guidance given from the relevant Government department which makes it clear that comparisons should not be made between two significantly different areas of the country where housing conditions will clearly be different and produce significantly different results. But that is not what the Board did in this case; the Board considered a broad range of rental figures within the London area in circumstances which, in my view, aptly matched the applicants' position. They had moved from Redbridge, where as a matter of fact rentals for the equivalent type of accommodation would be in the hundreds not the two hundreds per week, to Kensington and Chelsea, an area with which they had no connection whatsoever, with no family ties and therefore with no justification for saying that that was the only area with which the Board could make its appropriate comparisons.

34. In my judgment the Board was wholly justified in taking the course it did, which is to look at an area significantly wider than Kensington and Chelsea, and there is nothing to suggest, in my judgment, that in doing so it took into account rentals which were so significantly out of line with that which could reasonable be expected to be those for accommodation which these applicants could be expected to occupy as to mean that they took into account impermissible material. In my judgment the Board was wholly entitled, as I have already indicated, to take the view it did.

35. The final point which is made on behalf of the applicants in relation to the decision in respect of Chalfont House is that the decision in so far as it dealt with the question of whether it was reasonable, in the words of the regulation, to expect these applicants to move from that accommodation was the question of the effect of moving on Leila's education. The applicants say that the Board failed to grapple with the problem that was clearly presented by the evidence relating to Leila, which was that she had in the past suffered from fear at least of racial attacks in Redbridge, that she had been a shy girl when she went to her school in Pimlico and that a move would be disruptive.

36. In my judgment the Board did not deal with this particular issue inadequately or inappropriately. It accepted that Leila had settled into the school and had been there for a year. However, it had to carry out the balancing exercise between the payment, on the one hand, of what ex hypothesi would be excessive housing benefit and the effect on Leila on the other, and it came to the conclusion, as it stated, that it would not be unreasonable to expect Leila to move schools within the London area. I do not consider that that particular conclusion really justifies any further elaboration, and it is certainly a decision which was open to the Board on the material before it. I do not consider that that conclusion is one which can be impugned.

37. However, it is right to say that the Board, as I have already indicated, went on to state that it was not convinced that the family would not be able to make arrangements for her to continue to travel to the Pimlico school from wherever they were required to move to as a result of the reduction in housing benefit. That was not a very sensible conclusion and there is no indication that that particular conclusion has been thought through. Either it is a conclusion which is supported by no reasoning or, more realistically, it is a conclusion which really was not open in that bald way for the Board to reach on the material before it.

38. However, that conclusion was simply an additional conclusion reached on the issue in relation to Leila. It does not in any way infect the fundamental conclusion which was reached, which was that the Board did not consider that the disruption to Leila was such as to justify the conclusion that it would be unreasonable to expect the applicants to move.

39. In those circumstances, although that part of the decision is one which can be criticised in the way that I have indicated, it is not a criticism which in any way infects the decision so as to justify the conclusion that the decision itself should be quashed.

40. It follows in so far as the challenge is to the decision in respect of Chalfont House that none of the submissions made justify the conclusion that the Board either went wrong in law or gave inadequate reasons for its decision so as to justify this court in interfering with its decision.

41. As far as Sloane Gate Mansions are concerned, a rather more difficult question in one sense arises. The challenge as far as Sloane Gate Mansions is concerned fell really into two parts. Firstly, there was an argument which was an identical argument to the argument in relation to Chalfont House as far as Leila's position was concerned, and no different considerations arise as far as that aspect of the case is concerned, save to this extent, that the Board did in fact restrict its comparisons in relation to rentals to comparisons within the borough. It follows that the argument that Leila could be expected to travel or that arrangements could be made to ensure that she travelled to the Pimlico school become the more understandable, but I need say no more about that aspect of the matter than that.

42. The substantial argument has centred on the conclusion that the appropriate comparison which needed to be made by the Board for the purposes of determining the appropriateness of the rent was a comparison with a two bedroomed flat as opposed to a three bedroomed flat. It is said on behalf of the applicant that it is a conclusion which is on its face perverse, as the Board had implicitly accepted that three bedrooms was appropriate accommodation for the purposes of the comparison it was prepared to make in relation to Chalfont House and that therefore it really was committed to making a similar comparison when it came to considering the rental at Sloane Gate Mansions.

43. It is also said that the Board came to its conclusion without regard to the evidence before it. As far as the latter is concerned, the applicants point out that the basis upon which the Board came to the conclusion that a two bedroomed flat was the appropriate comparison was in the sentence which read as follows:

44. That ignores, say the applicants, the clear evidence which they have put before the Board and which was recorded in the decision to the effect that the only reason that they had chosen a two bedroomed flat was that they felt the only way out of their financial difficulties was to sacrifice one room. They considered that that therefore was a decision which was forced on them by financial circumstances and not by consideration of what was appropriate accommodation, if I can use that phrase loosely for a moment, for the family unit.

45. It seems to me that if the reasoning of the Board is in fact as stated baldly in the reasons that I have cited, then that reason is an inadequate reason. It fails to grapple with the evidence which was given as to the reason which the applicants gave for choosing two bedrooms as opposed to three bedrooms.

46. The question, however, has been answered on behalf of the respondents in a slightly different way. What the respondents have said in their submissions to me is that the Board was in any event required as a matter of law to consider the matter on the basis of a comparison with a two bedroomed flat and not a three bedroomed flat. The justification for that approach is said to rest in the wording of the regulation itself. The comparison which has to be made is a comparison with premises which could be considered suitable alternative accommodation, bearing in mind of course the age and state of health of the persons to whom the Board has to have regard. That is the consequence of regulation 11 paragraph 6.

47. It is said that in considering what is suitable alternative accommodation, the Board is required to consider not what is suitable accommodation, which is the concept familiar to those concerned with dealing with housing cases where the question is at large in relation to the housing needs of a particular family, but is directed to the very specific question of what is suitable alternative accommodation, the use of the word "alternative" making it clear that what is in question is a comparison between the accommodation which is at present occupied and is the subject-matter of the housing benefit claim and some other accommodation. The concept is one of equivalence. In the vast majority of cases this may well be satisfied by a straightforward comparison of the number of rooms. But that may not always be sufficient if, for example, the rooms in the accommodation presently occupied are particularly large, or there is some other special feature of the accommodation to be taken into account. The applicants counter that by pointing out that there is a clear distinction to be drawn between the duties imposed upon the rent officer under the Rent Officers (Additional Functions) Order 1990, to which I have referred, which requires a clear comparison between premises and the concept which is contained within regulation 11, which, it is said, does require the Board and others exercising their powers under the regulations to have regard to the needs of the particular applicants for housing benefit.

48. I understand and accept the argument that there is a distinction between the approach required of the rent officer on the one hand and those carrying out their obligations under regulation 11 on the other. As far as the former is concerned, the rent officer is required simply to have regard to the nature of the dwelling itself. Under regulation 11 other considerations come into play, but I do not consider that the wording of regulation 11 is intended to divorce the consideration of the appropriateness of the alternative accommodation from the accommodation which is in fact being occupied at the time that the claim for housing benefit is being made. It seems to me that that provides the starting point from which those concerned with regulation 11 must commence. I accept that the concept that is to be considered is one of equivalence and is not intended to enable an applicant for housing benefit to assert that in fact he or she is occupying premises which are inappropriate for their needs so that the comparison must be with premises which are of a substantially better quality or size.

49. That being my conclusion as to the way in which the regulations should be construed and the question under regulation 11 considered, how should I approach the challenge that is made to this particular decision, having come to the conclusion, as I do and have already given my reasons for, that the Board has not provided proper reasons for reaching the conclusion it did by the route that it did?

50. In my judgment the only conclusion which I can properly come to is that this particular decision is in fact flawed for the reason that I have given, namely that the reason that was provided by the Board for asserting that a two bedroomed flat was reasonable alternative accommodation was not a proper reason for so concluding. It may well be that there is only one answer to that question applying the construction of the regulation that I have indicated in my judgment to be the appropriate construction, but that does not seem to me to be so inevitable that this particular decision can stand. It follows that, for the reason that I have given, the decision in relation to Sloane Gate Mansions is one which must be quashed and reheard before a differently constituted Board.

51. MR FINDLAY: Can I have a second to take instructions? My Lord, in respect of your Lordship's finding in respect of Sloane Gate Mansions I am instructed to ask for leave to appeal. I accept that your Lordship has found the point of principle in the respondent's favour essentially, and, my Lord, as I understand your Lordship's judgment, it is that the Board would most likely be erring if it contrasted Sloane Gate Mansions with a three bedroomed property, but your Lordship has found that the Board's reasons as given were wrong and I am instructed to ask for leave to appeal in respect of that part of the case. My Lord, I would add that in the respondent's submission, given your Lordship's findings, there is no realistic chance of a different conclusion being reached by the Board, given that the reasoning as to the actual figures was not challenged.

52. MR REVELL: My Lord, I do not object to leave to appeal being granted in this matter, but naturally I do not concur with.

53. MR JUSTICE LATHAM: The point I wish to make clear is that the question of equivalence was one which was not considered, and it may or may not be that equivalence includes the consideration of a third bedroom. It may not, that is the point. I am sorry, it may. That is a matter which the applicants are entitled to argue. That, for example, would depend on the size of the bedrooms. That is the simple point. It may be there is only one answer on the facts of this case, but that has not been grappled with, is the point I am making.

54. MR FINDLAY: I understand. I am grateful to your Lordship for that clarification.

55. MR JUSTICE LATHAM: I think I will probably try and feed that into the judgment, because that is what I am seeking to say.

56. MR FINDLAY: My Lord, may I make one further small point about the judgment? Your Lordship referred to the Rent Officer (Additional Functions) Order 1989. For the shorthand writer's note, it should be 1990. My Lord, in the circumstances I would not ask for costs and I would resist any order for costs.

57. MR REVELL: My Lord, the applicants are legally aided and I would ask for costs and for legal aid taxation.

58. MR JUSTICE LATHAM: As far as this case is concerned it seems to me that the right order is no order for costs. I propose to say no more. Leave refused. As I say, Mr Findlay, I accept your point that it is probably better if I put in my judgment and explanatory note which indicates my reason, which I should have explained more fully in the judgment, for saying that the matter cannot of absolute necessity, it seems to me, provide an answer one way and one way only.

59. MR FINDLAY: My Lord, that would be extremely helpful and no doubt be of great assistance to the Review Board.

60. MR REVELL: My Lord, may I have legal aid taxation?

61. MR JUSTICE LATHAM: Legal aid taxation of the applicant's costs.