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Cite as: [2001] EWHC Admin 813

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R (ON THE APPLICATION OF NAGHSHBANDI) v. THE LONDON BOROUGH OF CAMDEN & ORS [2001] EWHC Admin 813 (19th October, 2001)

		Neutral Citation Number: [2001] EWHC Admin 813
		Case No: CO 1921/2001

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand,
London, WC2A 2LL

19th October 2001

B e f o r e :

THE HONOURABLE MRS JUSTICE RAFFERTY
____________________

The Queen on the application of Simin Naghshbandi
Claimant

- and -

(1) The London Borough of Camden
(2) London Borough of Camden Housing Benefit Review Board
Defendants

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Paul Stagg (instructed by Straker Holford & Co for the Claimant)
Ms Nathalie Lieven (instructed by London Borough of Camden for the Defendants)
____________________

Judgment
As Approved by the Court

Crown Copyright ©
____________________

Mrs Justice Rafferty :

This is an application for Judicial Review (JR) of the decision on 10th October 2000 of the London Borough of Camden (LBC), confirmed on 14th December 2000 and of the subsequent refusal of the Housing Benefits Review Board (HBRB), to review the LBC’s decision to treat the Claimant Mr Naghshbandi’s son as being included in the apportionment of rent liability in respect of 24 Buckingham Mansions. Dependent upon the court’s decision upon those matters, there may then arise the further question of whether relief should be refused consequent upon delay, and if granted, what form should it take?

The Claimant lived at No 24 with his wife, her mother (who receives benefit), one daughter (in employment), and one son, a student. Mr and Mrs Naghshbandi receive Income Support and are jointly liable for the rent. When he sought housing benefit (HB) his claim was assessed on the basis that the figure should be divisible between 5, that is, computing in the student son for these purposes. The LBC rejected a request for a review of its decision.

The scheme in question begins with S 130(1)(a) of the Social Security Contributions and Benefits Act 1992 which reads where relevant as follows:

(1) Housing benefit

(a) A person is entitled to housing benefit if:

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

(d) either: he has no income or his income does not exceed the applicable amount; or

(e) 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.

S130 (4) sets out the determination of “appropriate maximum HB” for each claimant as being governed by regulations. S137(2)(i) gives an enabling power for the making of regulations for the purposes of Part VII of this Act:

"for treating any person who is liable to make payments in respect of a dwelling as if he were not so liable."

Reg 48A(1) sets out the categories of claimant to be treated as not liable, the only relevant one being that of full time student.

The definitions of maximum housing benefit, eligible rent, and apportionment are not in issue.

Reg 10(5) where relevant reads as follows:

" Where more than one person is liable to make payments in respect of a dwelling, the payments specified in paragraph (1) shall be apportioned for the purpose of calculating the eligible rent for each such person having regard to all the circumstances, in particular, the number of such persons and the proportion of rent paid by each such person."

It is agreed that the student son has no entitlement to HB, by virtue of the deeming provision under Reg 48 A(1) which reads as follows:

"48A-(1) A full-time student shall be treated as if he were not liable to make payments in respect of a dwelling"

The nub of the disagreement between parties is whether the rent should be apportioned between those liable to pay it, which would include the son, or those treated as liable so to do, which would exclude him. The Claimant submits that the deeming provision is of general application and would catch any part of the regulations where liability to make payments arose. Nothing in the enabling section, S137(2)(i) limits their effect. Since the “Part” to which reference is made is Part VII, in which lies S130, the son must be excluded. Were it otherwise, then the Secretary of State could and should have included in Reg 10(5) a provision to the effect that treatment of a person as not liable should for these purposes have no effect.

The Defendants contend that Reg 10(5) requires apportionment as between those liable to make payments. Nothing within it suggests that a person’s being treated as not liable is relevant to the issue, relevance being confined to the number of those liable under whatever tenancy or licence applies. They argue that for the Claimant to succeed the deeming provision under Reg 48A must be read into Reg 10(5), whose words they submit militate against such a construction.

Would the construction advanced by the Claimant lead to irrationality? Reg 48A is a measure designed to stop students, whose finances are supported by other schemes, successfully claiming HB. Apportionment must be taken to contemplate that each tenant pays a rent he is liable to pay, so as to allow the proper allocation of HB. Were it otherwise, argue the Defendants, the presence in the premises of one tenant, not entitled to HB, might effectively increase the amount of HB to which the others would then be entitled. Support for this argument is said to be found in the Secretary of State’s Guidance Manual on Housing Benefit which at paragraph 4.56 reads as follows:

Joint Occupiers

" For HB purposes joint occupiers are two or more people occupying the same dwelling who are each separately liable to make payments in respect of their occupation. The rent for each joint occupier is the proportion of rent for the dwelling for which that person is responsible. It is for the authority to decide what the apportionment should be: this will normally be based on an equal division of the rent, but if an authority is satisfied that this would not adequately reflect the actual division of rent (for example because one of the joint occupiers occupies an unequal share of the accommodation) it may adjust the amount accordingly. Where a married or unmarried couple are joint occupiers only one is eligible for Housing Benefit, but the eligible rent for the partner claiming benefit will be the total of the eligible rent paid by both partners."

Miss Lieven for the Defendants concedes that this is merely guidance and did not seek to do more than remind me that it supports her argument. The Claimant urges me to conclude that this case is unusual and thus to be even more cautious in using guidelines which are silent as to facts on all fours with it. Whether or not he is correct, and I am not convinced that he is, I remind myself of the limited status of the guidance document. Indeed R v North Cornwall DC ex p Bateman and others (1994)27 HLR 662, CA reinforces the care to be exercised when considering how if at all to discern the policy underpinning legislation in this general area.

Mr Stagg concedes that his application for JR of both Defendants is unusual, and in that context set about addressing the procedural difficulties attached to his chosen course. Sch 7 of the Child Support, Pensions and Social Security Act 2000 introduced new regulations, effective from July 2nd 2001, to deal with the determination of claims and reviews of decisions but the 1987 Regulations prior thereto provide for determination (Reg 76), `review (Reg 79)`, and if dissatisfaction endured, a hearing by the HBRB upon timeous application (Regs 81 and 82), and the issue of a decision (Reg 83).

Reg 79 where relevant reads as follows:

Review of determinations

-(1) Any determination or decision of a Review Board may be reviewed at any time by the appropriate authority if-

a) there has been any relevant change of circumstances since the determination or decision was made; or

b) it is satisfied and, in the case of a decision, satisfied by fresh evidence, that the determination or decision was made in ignorance of, or was based on a mistake as to, some material fact; or

c) except in the case of a decision made by a Review Board, it is satisfied that it was based on a mistake as to the law.

The contention as put by the Claimant is that the effect of dismissal by the Review Board of an application for further review is to leave intact the initial determination, which determination lived on, as it were, after the Review Board hearing and must therefore have been reviewable under Reg 79. Once the Claimant requests such, it constitutes an alternative remedy (R v Chorley BC ex p Bound (1995) 28 HLR 791) and the Claimant would have expected criticism had he failed to follow that route. The LBC it is accepted has a discretion to carry out a review. The Claimant’s argument goes much further, however. Mr Stagg submits that since the original decision, were it to have been taken in ignorance of material facts, would be quashable, so also would it be were it to have been taken consequent upon a misdirection of law. That misdirection here he submits was the authority construing the son as included in the apportionment.

Miss Lieven disputes that Reg 79 can be deployed in the Claimant’s favour on a pure matter of law. Though I view Reg 79 (1)(c) as requiring a generous construction so as to enable the Claimant to overcome his admitted difficulty that there was no error as to fact, nevertheless I shall assume for the purposes of this judgment that Mr Stagg’s approach is correct. I am fortified in that approach by reference to the judgment of Sullivan J in R on the application of Sibley v W Dorset DC [2001] EWHC Admin 365. He there remarked :

“The discretion under regulation 79(1) is couched in very broad terms, but like all statutory discretions it is not unreviewable. It has to be exercised for the purpose for which it was conferred. It is quite plain that that purpose is to give the Council a general power to put things right where it is satisfied that a decision has been made in ignorance of some material fact or was based on some mistake....

In my judgment, therefore, the position is that the refusal to review the decision under regulation 79(1) was Wednesbury unreasonable. The discretion is broad but it is put there for a purpose: to enable the Council to correct mistakes that have been made. .... to put it another way, it is the intention of regulation 79(1) that the Council should be placed in a position whereby it is able to remedy such an injustice of its own volition if credible new evidence emerges.”

Although it seems to me that the concluding words of Sullivan J rather undermine the construction of Reg 79 for which Mr Stagg contends, nevertheless, looking at the matter in the round, it is clear that a narrow interpretation of the purpose of Reg 79 is not what that court construed the interests of justice as requiring. Subject to the question of delay, I would therefore have been willing to grant relief against the decision of the first Defendant if its interpretation of Reg 10(5) were incorrect.

The second Defendant’s decision, so the argument runs, was thus based on the first Defendant’s error as to inclusion of the son. The relevant parts of its decision are as follows:

i) .... The household comprised a family of five each of whom was jointly and severally liable for the full contractual rent of Ł478.71 per week. Two members were not eligible for housing benefit: their son, a full-time student and the other, their daughter.....

ii) Mr and Mrs Naghshbandi’s rent liability was Ł187.48 per week, 2/5 of Ł478.71...... The Benefits Service determined that their rent entitlement was Ł139.62 per week and therefore restricted the rent accordingly.

There is no issue as to the failure there to argue the construction of Reg 10 (5), since Miss Lieven concedes that it does not prevent the Claimant raising it subsequently.

The Defendants’ stance is simply expressed. They urge attention to the words of Reg 10(5). It is plain, so their argument goes, that only by deployment of the deeming fiction within Reg 48 can the Claimant advance a case. The son is liable to make payments, and whether he is treated as liable or not liable is, for the purposes of this regulation irrelevant. Miss Lieven posed helpful examples of how the Claimant’s construction could result in profit, by careful manipulation of living arrangements, which were countered by Mr Stagg’s reference to Reg 11 which he contends would control the mischief she set out. That is a matter I do not need to decide. Though advanced with skill, the Claimant’s arguments are not made out. In my judgment the Defendants on a proper construction of the provisions were entitled to include the son for apportionment purposes. Logic supports the contention that, Reg 48A being for the purpose of preventing those in the position of the son from receiving HB, apportionment is meant to ensure that each tenant pays a rent reflecting his liability to pay. The decision of the first Defendant contained no misdirection of law and that of the second is thus based upon sound reasoning in the conclusion on the first.

I was finally addressed upon the topic of delay, an extension of time being necessary were any claim to have proceeded. The chronology where relevant is as follows:

i) 28.9.00 Review Board hearing

ii) 24.10.00 Decision of Review Board

iii) 3.11.00 Review sought of initial determination on ground that C’s son in not liable to make payments

iv) 15.11.00 Review requested under Reg 79(1)(c)

v) 14.12.00 Refusal to review under Reg 79(1)(c)

vi) 3.1.01 Threat of judicial review if Reg 79(1)(c) review not carried out, alternatively applying for extension of time for Reg 79(2) review.

vii) 14.2.01 Rejection of error of law

viii) Late April 01 Claimant’s case referred to Claimant’s solicitors

ix) 14.5.01 Proceedings issued

x) 15.6.01 Permission to apply for judicial review granted by Scott Baker J.

Though I do not need to reach a conclusion upon the topic of delay, for the avoidance of doubt I make plain that, although reluctantly, I should have found in the Claimant’s favour on the simple ground that he should not be made to suffer consequent upon what may have been advice at odds with that which experienced solicitors, who now guard his interests, would have given.

For the reasons given, this claim fails.

***********

MRS JUSTICE RAFFERTY: For the reason given, this claim fails.

MISS LAMONT: My Lady, there remains the question of costs. The claimant is legally aided, but the defendant would make a cost application for their costs against the claimant, obviously to be determined under the provisions concerning public funding.

MRS JUSTICE RAFFERTY: Is there much point to it? Mr Stagg, what have you got to say?

MR STAGG: It is a matter for your Ladyship. I obviously cannot resist the application. As I say, it is a matter for your Ladyship really. Can I first of all apologise if it was 10.15, I was told by my clerk it was 10.30.

MRS JUSTICE RAFFERTY: Do not worry about it, these things happen so often. My first reaction was, because I was surprised that you were late, I put a pound to a rotten apple he has been told 10.30. So no apology needed.

MR STAGG: I am very sorry. That is a matter for your Ladyship. I have an application for permission to appeal. I submit it is a discrete point of law, one that does not necessarily (inaudible) a meaty answer and, therefore, one that is fit for consideration by the Court of Appeal?

MRS JUSTICE RAFFERTY: No, Mr Stagg. Miss Lamont, you can have your costs.

MR STAGG: I am grateful. May I also have an assessment of my publicly funded costs?

MRS JUSTICE RAFFERTY: Yes, of course. Miss Lamont of course was not here during the course of the hearing, but you were, Mr Stagg, thank you very much again for your help during the hearing.

MR STAGG: I am grateful, my Lady.

England and Wales High Court (Administrative Court) Decisions

R (ON THE APPLICATION OF NAGHSHBANDI) v. THE LONDON BOROUGH OF CAMDEN & ORS [2001] EWHC Admin 813 (19th October, 2001)

JudgmentAs Approved by the Court

Judgment
As Approved by the Court