England and Wales High Court (Administrative Court) Decisions

Queen on the application of [2001] EWHC Admin 260 (6th April, 2001)

Case No: CO/3061/2000

Neutral Citation Number: [2001] EWHC Admin 260

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Sheffield Crown Court

The Law Courts

50, West Bar

Sheffield S3 8PH

Friday 6^th April 2001

MR JUSTICE MAURICE KAY :

1. Housing benefit is a means-tested benefit the statutory basis of which is to be found in section 123(1) of the Social Security and Contributions and Benefits Act 1992. Section 130(1) provides:

"A person is entitled to housing benefit if-

(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home;

(b) there is an appropriate maximum housing benefit in his case; and

(c) either

(i) he has no income or his income does not exceed the applicable amount; or

(ii) his income exceeds that amount, but only by so much that there is an amount remaining if the deduction for which subsection 3(b) below provides is made"

Most of the statutory provisions are to be found in subordinate legislation as a result of section 137 which empowers the Secretary of State to make regulations for many purposes, including

"(i) for treating any person who is liable to make payments for a dwelling as if he were not liable"

One such regulation is to be found in regulation 7(1)(d) of the Housing Benefit (General) Regulations 1987 which was put into an amended form by regulation 3 of the Housing Benefit (General) Amendment (No 2) Regulations 1998. Regulation 7(1)(d) states:

"(1) A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where.......

(d) he is responsible, or his partner is responsible, for a child of a person to whom he is liable under the agreement [pursuant] to which he occupies the dwelling]."

This provision came into force on 4 January 1999.

2. The claimant is a single parent who lives with her two children at 25 Collins Way, Reading. The older child is the son of Peter Noble but Mr. Noble is not the father of the younger child. The claimant and Mr. Noble never cohabited. At the time of the birth of their child in 1998 Mr. Noble was a married man. He was living with his wife at 25 Collins Way. However, that marriage came to an end in 1990. By April 1990 Mr. Noble had moved out of the house and it was empty but he continued to own it. He agreed to let it to the claimant and she and their child moved in. She applied for and was awarded housing benefit and for the next nine years she used the housing benefit to discharge her obligation to pay rent to Mr. Noble. In 1995 she gave birth to her younger child. At all material times, Mr. Noble paid the claimant an agreed sum by way of maintenance for the older child.

3. On 24 November 1999 Reading Borough Council, the body responsible for the administration of the housing benefit scheme in its area, decided that the claimant was not entitled to housing benefit by virtue of regulation 7(1)(d) because she is a person who is liable to pay rent in circumstances wherein she is also responsible for the child of her landlord. The claimant requested a review of the decision but the Council, more in sorrow than in anger, maintained the decision. The claimant then applied for a further review by the local Housing Benefit Review Board but that review has been deferred pending the outcome of this application for judicial review.

4. No one disputes that the wording of regulation 7(1)(d) applies to the claimant's factual circumstances. What is put in issue by this application is the lawfulness of regulation 7(1)(d). Accordingly, the application is made not against Reading Borough Council but against the Secretary of State who promulgated the disputed provision. Initially, one of the grounds of challenge was to the effect that the amending Regulations of 1998 were not properly laid before Parliament but that ground was rightly not pursued at the hearing. However, other grounds of no little ingenuity remain to be considered.

Ground 1: regulation 7(1)(d) conflicts with the rights conferred by the Child Support Acts 1991 and 1995

5. The legal principle which Mr. Drabble QC sought to invoke on behalf of the claimant in relation to this ground of challenge is illustrated by Regina v. Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275. The Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996, regulation 8 had purported to exclude from entitlement to "urgent cases payments" persons who sought asylum otherwise than on arrival in the United Kingdom and those whose claims for asylum had been adversely determined by the Secretary of State for the Home Department and were awaiting for hearing of their appeals. The majority of the Court of Appeal (Neil LJ dissenting) held regulation 8 to be ultra vires. Simon Brown LJ said (at p. 292-3):

"I would hold it unlawful to alter the benefit regime so drastically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status.....I for my part regard the Regulations now in force as so uncompromisingly draconian in effect that they must indeed be held ultra vires. I would found my decision.....on the .....ground that rights necessarily implicit in the Act of 1993 are now inevitably being overborne. Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable dilemma; the need either to abandon their claims to refuge status or alternatively to maintain them as best they can but in a state of utter destitution. Primary legislation alone could in my judgment achieve that sorry state of affairs."

To which Waite LJ added (at p.293):

"The principle is undisputed. Subsidiary legislation must not only be within the vires of the enabling statute but must also be so drawn as not to conflict with statutory rights already enacted by other primary legislation. Once that is accepted, the question in the present case becomes one of degree and extent."

Mr. Drabble's submission relied on statutory rights already enacted by the Child Support Acts.

6. The long title to the Child Support Act 1991 describes it as an Act "to make provision for the assessment, collection and enforcement of periodical maintenance payable by certain parents with respect to children of theirs who are not in their care; for the collection and enforcement of certain other kinds of maintenance; and for collection and enforcement of certain other kinds of maintenance; and for connected purposes." It is not necessary for me to set out the detailed provisions. In essence, the Act imposed upon absent parents a duty to maintain their children and provided a complex formula for the assessment of the amount of maintenance to be paid. It also made provision for the appointment of child support officers to make decisions under the Act and for a tribunal to hear appeals from those decisions. Where a mother has care of a child and is in receipt of certain benefits, she may be required to authorise the Secretary of State to take action to recover child support maintenance from an absent father (section 6). As I understand it, housing benefit is not presently one of the prescribed benefits for that purpose.

7. The submission made by Mr. Drabble was that by the Child Support Acts Parliament defined the circumstances in which absent parents are liable to maintain their children and the basis for the assessment of such maintenance, with an in built system of adjudication and appeal. Accordingly, it was not for a statutory instrument made under the Social Security Contributions and Benefits Act to cut across and conflict with the carefully devised scheme of the Child Support Acts, with all their checks and balances. He sought to make this good by examining the implications of regulation 7(1)(d), submitting that it ensures that, in the circumstances to which it applies, it is appropriate to look to the absent parent to finance the accommodation costs of the parent with care of child and of the child itself. The circumstances presuppose an absent parent who is also the landlord. If he is bearing any ongoing costs himself for the property in question, such as mortgage payments, regulation 7(1)(d) assumes that he will not seek to pass them on to the tenant. This is not because of the relationship between the landlord and the tenant but because of that between the landlord and his child. Moreover, the same implications arise even if the landlord is not bearing any ongoing costs in respect of the property. The assumption then is that, upon the same rationale, he should forego the rent that would be available from a different tenant and allow a capital asset to yield no income. Either way, regulation 7(1)(d) assumes a transfer of resources from the landlord to the tenant solely on the basis of the relationship between the landlord and his child. In his Skeleton Argument, Mr. Drabble concluded the point in this way:

"Given that the transfer takes place outside the statutory machinery of the child support scheme and without any of the protections that it provides, there is a fundamental conflict with the scheme.....The point is even sharper in relation to cases, such as the present, where the accommodation has been rented as part of long-standing arrangements."

8. On behalf of the Secretary of State, Miss Baxendale QC submitted that the principle in the case of the Joint Council for the Welfare of Immigrants case simply does not touch the present case. The purpose of regulation 7(1)(d) is to counter a known abuse of the housing benefit scheme and, as such, it falls comfortably within the empowering provision in section 137(2)(I) of the Social Security Contributions and Benefits Act. The fact that it has an interrelationship with the support given by an absent parent to his child does not mean that it is ultra vires. In Circular HB/CTB/A1/99, which provides guidance to staff who have to administer the housing benefit scheme, it is said that regulation 7(1)(d)

"reflects the fact that the absent parent has responsibilities towards his child, including providing accommodation."

This is not a reference which is confined to the legal responsibility to maintain, whether under the Child Support Acts or otherwise. It is a reference to responsibilities in a wider sense - moral and social - and embraces an assumption that an absent parent who owns a house would not generally charge the other parent for living in the house with their child. Put another way, the absent parent/landlord would not normally enforce the terms of the tenancy against the mother of his child.

9. In my judgment, Miss Baxendale's submissions on this issue are correct. The fact that there is an interface between child support and housing benefit does not render this particular way of combating abuse in the housing benefit system ultra vires.

Ground 2: the principle of legality

10. Later in this judgment I shall address the important substantive issue of whether regulation 7(1)(d) offends article 8 (right to respect for private and family life) and/or article 14 (prohibition of discrimination) of the European Convention on Human Rights. In the meantime. I shall address this second ground of challenge on the hypothesis that it does. If it does, then Mr. Drabble's submission was that, even before the coming into force of the Human Rights Act 1998 on 2 October 2000, regulation 7(1)(d) was susceptible to challenge by reference to the principle of legality. If he is correct, then of course the challenge would bite from the moment of the decision to terminate the claimant's housing benefit.

11. The principle of legality was described by Lord Hoffman in Regina v. Home Secretary, ex parte Simms [2000] 2 AC 115, 131:

"Parliamentary sovereignty means Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts, therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document"

His Lordship went on (at p.132) to observe that

"the principle of legality will be expressly enacted as a rule of construction in section 3 [of the Human Rights Act]."

See also the speech of Lord Steyn at p. 130.

12. Mr Drabble submitted that it is necessary to go back to the empowering provision of section 137(2)(i) of the 1992 Act, which permitted regulations to be made "for treating any person who is liable to make payments for a dwelling as if he were not liable". That provision, he submitted, is expressed in wide words which must be read as subject to a limitation that they do not authorise regulations that would breach fundamental human rights. Accordingly, regulation 7(1)(d), if it offends articles 8 and 14, is ultra vires by reference to the principle of legality.

13. Miss Baxendale's response was that the principle of legality is a principle of construction. In this, she was assisted by the judgment of Newman J in Regina v. Worcester County Council, ex parte SW (unreported), 28 July 2000). After careful review of the authorities, Newman J. said (at para. 18):

"In my judgment [Counsel] is correct to characterise the principle of legality as a rule of construction. It has an exact parallel in the presumption of constitutionality recognised by the Privy Council in the interpretation of provisions passed by a Parliament subject to the terms of a written constitution and in that context has been so described See Attorney General of the Gambia v. Jobe [1984] AC 689, 702 and Attorney General v. Antigua Times Ltd. [1976] AC 16). In my judgment both Lord Steyn......and Lord Hoffman.....applied the principle of legality as a rule of construction."

14. I respectfully agree with that reasoning and conclusion. Once it is accepted that the principle of legality is a principle of construction, no more and no less, I do not consider that it avails the claimant in the present case. The language of section 137 and, for that matter, regulation 7(1)(d) is neither general nor ambiguous. There is nothing upon which the principle can bite. The meaning of the language is clear and unequivocal. Mr. Drabble attempted to distinguish ex parte SW on the ground that it did not concern a statutory power but, whilst that is a factual difference, it is clear that Newman J was concerning himself with the principle of legality generally and not just in a non-statutory context. I am satisfied that the principle is not a basis for challenge in the present case.

Ground 3: Wednesbury irrationality

15. In the form 86A, the irrationality challenge (minus a human rights strand) was put thus:

"(A) It [viz. Regulation 7(1)(d)] is so blunt an instrument as to be an irrational way of achieving its object. It is irrational to bar payment of housing benefit to all persons within paragraph (d) despite the non-abusive nature of the arrangement and regardless of the reasons for it, the means and responsibilities of the parties, the impact upon the relationship between the absent parent and the child and between the parties.

(B) It does not rationally reflect the fact that the absent parent has responsibilities towards his child, including providing accommodation. Paragraph (d) reflects an assumption that any such responsibility is absolute, but it is not since it depends upon the means of the parties. Paragraph (d) irrationally ignores the fact that any responsibility to provide accommodation for the child is not also a responsibility to provide it for the other members of the child's household.

(C) It is wholly arbitrary in effect. It applies equally to an unemployed absent parent who uses the whole rent to pay the mortgage as to a millionaire owner of many properties who can let them for free if he chooses.

An appropriate instrument exists - the child support scheme."

16. In considering irrationality, it is necessary to consider the evidence on behalf of the Secretary of State. This comprises a witness statement of Mr. C.J. Singh, who is the section head responsible for policy on certain aspects of the housing benefit scheme. In the previous version of regulation 7, the only provision which might have been applicable to a tenant and her child (who was also the child of the absent landlord) was regulation 7(b) which treated a tenant as if she was not liable to make payments in respect of a dwelling when the tenant's liability appeared to the local authority "to have been created to take advantage of the housing benefit scheme". The offending arrangements were known as contrived tenancies. The provision caused considerable difficulties of practical application as was highlighted by Regina v. Sheffield HBRB, ex parte Smith (1994) 93 LGR 139; Solihull MBC v. Simpson (1994) 27 HLR 41 and Regina v. Stratford on Avon HBRB, ex parte White (1998) 31 HLR 126. The problem was the absence of a clear workable test to enable local authorities to determine whether or not a particular arrangement was contrived. Mr. Singh continued:

".....the nature of the relationship between the parties can facilitate the contriving of documents and other evidence to indicate a bona fide tenancy. It is extremely difficult for the local authorities to rebut such evidence. An authority can have little or no evidence to weigh against that put forward by the claimant and his/her landlord and yet there may be strong doubts as to the credibility and integrity of the evidence indicating entitlement. In such situations refusals to award housing benefit are vulnerable to review. The new regulation gave local authorities a firm basis on which to decline to award housing benefit in circumstances where the risk of abuse is very considerable."

Thus, under the old regulation it was not uncommon for housing benefit officials employed by local authorities to telephone Mr. Singh's section for advice about particular cases and for them to conclude that, given the evidential difficulties, they should allow the claim rather than disallow it, or that, if they did disallow the claim, for their decision to be overturned by a Housing Benefit Review Board. Mr. Singh added:

"My overwhelming impression is that the [old] regulation left the authority with little choice other than to act in favour of the claimant, even where they had more than a suspicion that the tenancy was contrived."

He described the purpose behind the amendment as:

" - to give local authorities a clear test as to circumstances or relationships where rent liability will not be covered by housing benefit;

- to remove the requirement in the particular circumstances listed [in the new regulation 7(1)] to form a judgment as to whether in general terms the arrangement was contrived: in the specified circumstances it is no longer necessary for the local authority to show that the arrangement was contrived or any aspect of the intention of the parties;

- to make it easier for claimants to understand what test is being applied and, if they fail the test for entitlement, why they failed: this will be self - evidence if they fall within any of the categories set out in the regulation."

And, again:

"Although the effect of the amendment......is that all persons who fall within the particular specified classes are excluded from entitlement to housing benefit, the Secretary of State believes that the regulation is appropriate to deal with the mischief in question. This is because the regulation seeks to deal with situations where people would not readily have entered into legally enforceable obligations with all the ensuing legal consequences. It is not a blanket denial of housing benefit because if a person falls within one of the categories he or she could seek different accommodation, where housing benefit could be expected to be awarded."

17. The amendment was preceded by a process of consultation with local authorities. The Local Government Association welcomed the amendment, one of their consultees observing that "quite often regulations lead to ambiguity and subjectivity which in almost all cases leads us to be criticised at a later date by the DSS". The Welsh Local Government Association and the Convention of Scottish Local Authorities also supported the amendment. There was consultation with the Social Security Advisory Committee who generally favoured the amendment. Mr. Drabble did not dispute that there had been an abuse problem with the previous regulation. His submission was that, for the reasons set out in the form 86A (which I have quoted) and because the amendment made no transitional provision for existing arrangements and allowed a claimant no opportunity by way of a reverse burden of proof to show that a particular arrangement was not an abuse, the amendment is irrational.

18. The law in this area has recently been illuminated by O'Connor v. Chief Adjudication Officer [1999] 1 FLR 1200. The decision of the Court of Appeal in that case is authority for a number of propositions which are relevant to the present case. The first concerns the parameters of the Wednesbury test in a case involving a challenge to subordinate legislation which has been subject to the negative resolution procedure. Auld LJ said (at p. 1210):

"Irrationality is a separate ground for challenging subsidiary legislation, and is not characterised by or confined to a minister's deceit of Parliament or having otherwise acted in bad faith. That means irrationality in the Wednesbury sense. Counsel have referred to the difficult notion of `extreme' irrationality sometimes suggested as necessary before a court can strike down subsidiary legislation subject to parliamentary scrutiny, citing....Nottinghamshire County Council v. Secretary of State for the Environment [1986] AC 240, 247 [Lord Scarman] and Regina v. Secretary of State for the Environment, ex parte Hammersmith and Fulham [1991] AC 521, 597 [Lord Bridge].....It is wrong to deduce from those dicta a notion of `extreme' irrationality. Good old Wednesbury irrationality is about as an extreme form of irrationality as there is."

The second point is that it behoves this court to proceed with caution when considering "the rationality of a policy based on political, social and/or economic considerations outside its normal competence" (Auld LJ at p. 1211, citing Sir Thomas Bingham MR [1996] QB 517, 556). Thirdly - and this has a particular bearing on the present case - Auld LJ stated (at pp. 1214-5):

"The fact that the general policy may produce hardship in individual cases does not make it or the subsidiary legislation implementing it irrational. More specifically, simply because there may be a powerful or sympathetic case for inclusion in the system of social security benefits for full-time students whose courses are interrupted for one reason or another short of illness, and for full inclusion in the case of illness, does not make it irrational to exclude them..See, for example, R. v. Social Fund Inspector, ex parte Healey (1991) 4 Admin LR 713....Farquarson LJ, with whom Parker and Scott LJJ agreed, said, at 720 and 721:":

"As with any regulation or direction there will be cases....that are excluded from the help which as a matter of humanity they ought to have but I do not agree that the policy can be said to be irrational....

The argument is really reduced to saying that because one category of need is included there is no logical conclusion for excluding another.....in my judgment this argument must fail....."

"As [Counsel] submitted, it was for the Secretary of State, under the scrutiny of Parliament, to decide who should qualify for income support and who should not. Simply because his policy may have operated harshly in individual circumstances did not make it irrational."

19. I have set out those extracts from the judgment of Auld LJ at some length because they seem to me to go to the heart of the Wednesbury challenge in the present case. The experience of administering the scheme under the previous regulation 7 convinced the Secretary of State that it resulted in abuse and that there were particular difficulties in distinguishing between the genuine and the contrived. As in O'Connor, he came to the conclusion that the most effective way to eliminate abuse was to have a deeming provision. It rests on a rational belief that, in cases where the tenant is the parent and carer of the landlord's child, the landlord will generally not view the landlord/tenant relationship in the same commercial way that he otherwise would. Of course there will be cases (and I accept that this is one of them) where a genuine commercial arrangement exists, notwithstanding the relationship between the parties. Moreover, as with any universal rule in this sphere, there are bound to be hard cases. However, that is not the end of the story because the possibility will remain of the tenant moving to other accommodation with a different landlord and an unquestioned right to housing benefit. Mr. Drabble submitted that this ignores the fact that rented property for housing benefit recipients is not readily available in some parts of the country, including Reading, but differential local conditions do not demand a flexible rule. Notwithstanding the numerous hypotheticals referred to in the course of submissions, there is no evidence that the hard cases are widespread. In my judgement, the evidence of Mr. Singh concerning the matters taken into account in the formulation of regulation 7(1)(d) points to a rational approach, albeit one that can operate harshly in some circumstances. Whilst it is true that the Secretary of State does not seem to have addressed any connection between this provision and the Child Support Acts, I do not consider that such an admission points to irrationality. His concern was and is with an identified abuse of the housing benefit system. He has countered that abuse by the introduction of a universal disentitling provision. In my judgment he was entitled so to do and rationality did not require him to provide for exceptions, whether by transitional provisions, a reverse burden of proof or otherwise. Accordingly, this ground of challenge fails.

20. I referred to a "human rights strand" to the Wednesbury challenge. I propose to turn next to the ECHR points made by Mr. Drabble in their free-standing context. When I have done so, it will become apparent that I do not consider there to be a breach of article 8 and/or article 14 in the present case. In these circumstances, the human rights strand to the Wednesbury challenge does not arise.

Ground 4: the human rights challenge

21. It is upon Articles 8 and 14 of the ECHR that Mr. Drabble sought to base the human rights challenge. They are in the following terms:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

22. Any attempt to rely upon Article 8 alone to sustain a Convention right to a welfare benefit faces difficulty. The Strasbourg jurisprudence tends not to interpret the obligation on the state to respect family life in such a way as to require financial support. Thus, in Petrovic v. Austria (1998) 4 BHRC 232, the European Court of Human Rights had to consider Austrian legislation whereby parental leave allowance could be claimed only by mothers who stayed at home to look after children and not by fathers. The Court stated (at para. 26):

"In this connection the Court, like the Commission, considers that the refusal to grant Mr. Petrovic a parental leave allowance cannot amount to a failure to respect family life, since Article 8 does not impose any positive obligation on states to provide the financial assistance in question."

It was on the basis of this judgment, which had been foreshadowed by the Commission in applications such as X v. Federal Republic of Germany (1956) 1 Yearbook 202 and Anderson and Kullman v. Sweden (1986) 46 DR 251, that Miss Baxendale submitted that Article 8 imposes no obligation on the state to provide financial assistance towards the payment of housing costs. As a starting point, this seems to me to be incontrovertible. It is no doubt for this reason that Mr. Drabble's argument was formulated in a more subtle way, expressed in his Skeleton Argument thus:

"......the position that is actually under consideration in the present scheme is the withdrawal or denial of housing benefit in particular circumstances, defined by reference to a family relationship. The predictable result, on cases such as the present, is the loss of the home and a disruption of family life."

However, even that reformulation of the argument does not, in my judgment, engage Article 8 standing alone. After all, the refusal to grant Mr. Petrovic parental allowance could be characterised as the withdrawal or denial of a benefit which would, in appropriate circumstances, have accrued to Mrs Petrovic had she not chosen to return to work.

23. I suspect that it was this analysis which resulted in Mr. Drabble, ultimately, relying more on the alternative argument that regulation 7(1)(d) engages Article 14 "read together with Article 8". In Petrovic the relevant part of the judgment of the Court is headed "Applicability of Article 14 together with Article 8". It reads as follows:

"22. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to `the enjoyment of the rights and freedoms' safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter.....

25. The Court therefore has to determine whether the facts of the present case come within the scope of Article 8 and, consequently, of Article 14 of the Convention.....

26.....Article 8 does not impose any positive obligation on states to provide the financial assistance in question

27. Nonetheless, this allowance paid by the state is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children.

28. The Court has said on many occasions that Article 14 comes into play whatever `the subject-matter of the disadvantage....constitutes one of the modalities of the exercise of a right guaranteed' (see National Union of Belgium Police v. Belgium [1975] 1 EHRR 578 at 592-593 (para 45)) or the measures complained of are `linked to the exercise of a right guaranteed' (see Schmidt v. Sweden 1 EHRR 632 at 645 (para 39))."(Emphasis added).

Applying these principles the Court held that, by granting parental leave allowance, a state demonstrates its respect for family life within the meaning of Article 8 and that the allowance therefore comes within the scope of Article 8 so that "Article 14 - taken together with Article 8 - is applicable". However, there was no breach because Austria had not exceeded the margin of appreciation allowed to it, having regard to, among other things, the "very great disparity between the legal systems of the contracting states in this field" (paras 42-43).

24. Unsurprisingly, both Mr. Drabble and Miss Baxendale sought to derive support from Petrovic. Mr. Drabble submitted that (1) the present case is on all fours with Petrovic so far as the ambit or scope of Article 8 is concerned; (2) on the other hand, the present case is distinguishable from Petrovic because, whereas that case was concerned with a major policy issue as to which contracting states had different views, the issue in the present case is one of detail; (3) when the appropriate comparative exercise is carried out, it can be seen that there is discrimination which does not have an objective and reasonable justification or, put another way, regulation 7(1)(d) does not pursue a legitimate aim and/or, it does not bear a reasonable relationship of proportionality to the aim sought to be achieved. Miss Baxendale's answers to these submissions were that (1) accepting the principle in Petrovic as regards the ambit or scope of Article 8, the present case is factually distinguishable from Petrovic because a person in the position of the present claimant is not totally denied housing benefit - it is simply unavailable in relation to the particular property or landlord because of a considered anti-abuse provision; (2) on any basis, regulation 7(1)(d) has an objective and reasonable justification because it pursues a legitimate aim - it is an anti - abuse provision - and it does so proportionately; (3) it is within the discretionary area of judgment which contracting states enjoy.

25. I am prepared to assume that, on the basis of "ambit" or "scope" test, this is a case in which Article 14, taken together with Article 8, is applicable. However, in my judgment the claimant has come nowhere near establishing a breach of the Convention. It is appropriate for me to refer to some of the authorities on justification and proportionality.

26. In Rasmussen v. Denmark (1984) 7 EHHR 371 the European Court of Human Rights dealt with a case concerning an alleged discrimination in paternity proceedings. One of the submissions on behalf of the Danish Government was that, in deciding whether the national authorities had acted within the relevant margin of appreciation, regard should be had to the economic and social circumstances prevailing at the relevant time in the country concerned and to the background to the legislation in question. The Court stated (at para. 40):

"The Court has pointed out in several judgments that the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States."

27. It concluded that a time bar which was absolute in relation to applications by men but was not so in relation to applications by women was within the margin of appreciation and did not transgress the principle of proportionality. See also Stubbings v. United Kingdom (1976) 23 EHRR 213, at paras 70 and 71, and National & Provincial Building Society v. United Kingdom (1997) 25 EHRR 127, at paras 88-89. There is, of course, a difference between the invocation of a margin of appreciation by the Strasbourg Court in exercising its supervisory jurisdiction and the role of a judge in a national court. That difference was explained in Regina v. Director of Public Prosecutions, ex parte Kebilene [1999] 3 WLR 972 where Lord Hope of Craighead said (at pp 993-994):

"This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than a mere set of rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and the issue of proportionality.

In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. This point is well made at p. 74, para. 3.21 of Human Rights Law and Practice (1999) of which Lord Lester of Herne Hill and Mr. Pannick are the general editors, where the area in which these choices may arise is conveniently and appropriately described as `the discretionary area of judgment'."

28. This approach is mirrored in the speeches of Lord Bingham of Cornhill and Lord Steyn in Procurator Fiscal v. Brown (PC, unreported, 5 December 2000, Transcript, pp. 25 and 37 respectively).

29. I have no doubt that it is appropriate to apply these principles in the present case and that, when that is done, it is abundantly clear that regulation 7(1)(d) is within the discretionary area of judgment on the part of the Secretary of State, subject to parliamentary scrutiny by the negative resolution procedure. I accept Miss Baxendale's submission that it is a legitimate and proportionate response to the matters set out in Mr. Singh's witness statement to which I have referred earlier in this judgment. There is a need for an anti-abuse provision. In my judgment the fact that the provision does not embrace an exception subject to a reverse burden of proof or a saving for existing arrangements by way of transitional provision (these being the two criticisms adumbrated by Mr.Drabble) does not render the regulation in its present form disproportionate. Put another way, regulation 7(1)(d) pursues a legitimate aim and any differential treatment bears a reasonable relationship of proportionality to the aim sought to be achieved, viz. the eradication of abuse. Moreover, any eviction of the claimant by Mr. Noble would be, as Miss Baxendale submitted, a matter for him and not necessarily an inevitable consequence of regulation 7(1)(d). It is not without significance that, if the claimant is evicted, she would be eligible to apply for housing benefit in relation to another property with a different landlord. I am mindful of the claimant's evidence about the difficulties of finding alternative rented accommodation in Reading but I do not consider that they are such as to make an otherwise proportionate response a disproportionate one.

Conclusion

30. It follows from what I have said that, in my judgment, none of the grounds of challenge so ably advanced by Mr. Drabble is made out in this case. The application for judicial review therefore fails.