QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF STEPHEN HOOK||Claimant|
|THE SOCIAL SECURITY COMMISSIONER||Defendant|
|THE SECRETARY OF STATE FOR WORK AND PENSIONS||Interested Party|
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Miss Lisa Busch (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Crown Copyright ©
"In a case where a commissioner has refused leave to appeal without giving reasons and an applicant seeks to challenge such refusal by way of judicial review, the onus must, in my judgment, lie on the applicant to show either (a) that the reasons which in fact caused the commissioner to refuse leave were improper or insufficient, or (b) that there were no good grounds upon which such leave could have been refused in the proper exercise of the commissioner's discretion."
"A claimant shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to income support or increasing the amount of that benefit."
"the income and capital of a claimant's partner which by virtue of section 136(1) of the Contribution and Benefits Act is to be treated as income and capital of the claimant, shall be calculated in accordance with the following provisions of this Part in like manner as for the claimant; and any reference to the 'claimant' shall, except where the context otherwise requires, be construed, for the purposes of this Part as if it were a reference to his partner..."
"It is accepted that refusal of income support or housing benefit cannot breach Article 8 on its own because there is no positive obligation on the Government to pay social security benefit. However, deductions made from benefits which the state has decided the claimant is entitled to can breach Article 8 [citing the case of Logan v United Kingdom]."
"There is a lack of respect for Mr Hook's family life because the only way that he can avoid losing his home and claiming access to income support is to sever his ties with his partner. That is entirely unreasonable, particularly bearing in mind that his partner has not done anything dishonest, and in addition provides Mr Hook with personal care."
"It is the appellant's case that any provision which treats the claimant as having the partner's notional capital where the deprivation of capital took place before they were a couple would show a lack of respect for the claimant's private life in that although he was an autonomous individual, he is treated as owning notional capital, and as a result is treated as being ineligible for income support and housing benefit solely as the result of retrospective account being taken of the actions of a person who, at the time, was not living with him as his partner and with whom they had no legally relevant connection, for benefits purposes."
"As long ago as 1982, in an article on 'The Protection of Privacy, Family Life and Other Rights under Art 8 of the European Convention on Human Rights' (1982) 2 YEL 191, at p 199, Mr Peter Duffy wrote, in relation to the positive obligations inherent in Art 8:
'The case-law has only just begun to grapple with this issue. In general, one would expect a somewhat cautious approach from the Commission and the court. It seems nevertheless very probable that some welfare benefits come within the scope of Art 8 and possible that minimum welfare provision may now constitute a positive obligation inherent in the effective respect for private and family life by the States.'
30. It is noteworthy that, so far as we are aware, the Strasbourg court has not yet given a decision that a State has infringed Art 3 as a result of failure to provide welfare support, let alone that Art 8 has been infringed in such circumstances. The court has, however, recognised the possibility of such an infringement. In Marzari v Italy (1999) 28 EHRR CD175 the applicant suffered from a rare disease that, at times, constrained him to use a wheelchair. He complained that his Art 8 rights had been infringed in that he had been evicted and that the alternative accommodation offered to him was not suitable, having regard to his special needs. The court observed at p 179:
'The court must first examine whether the applicant's rights under Art 8 were violated on account of the decision of the authorities to evict him despite his medical condition. It further has to examine whether the applicant's rights were violated on account of the authorities' alleged failure to provide him with adequate accommodation. The court considers that, although Art 8 does not guarantee the right to have one's housing problem solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under Art 8 of the Convention because of the impact of such refusal on the private life of the individual. The court recalls in this respect that, while the essential object of Art 8 is to protect the individual against arbitrary interference by public authorities, this provision does not merely compel the State to abstain from such interference: in addition, to this negative undertaking, there may be positive obligations inherent in effective respect for private life. A State has obligations of this type where there is a direct and immediate link between the measures sought by the applicant and the latter's private life.'"
"in principle neither oppressive nor irrational to take account of disposals of capital made by a person before becoming the claimant's partner. Quite the reverse. Both in aggregating the capital of the members of a family and in taking account of notional capital, the legislation fulfils an anti-avoidance function. If notional capital were not aggregated, a future partner could dispose of capital before coming to live with the claimant or couples could separate in order to dispose of capital before reuniting. It is a legitimate function of legislation to prevent an obvious means of avoidance. And the legislation does so in a proportionate way. The notional capital rule will only apply to a future partner when there has been conduct that is related to future entitlement to benefit either for the person alone or as a member of a family. That will limit the circumstances in which the rule applies and restrict it to those cases in which a course of conduct has been directed at future benefit entitlement."
"So long as his relationship with Ms H continues, he [that is Mr Hook] is unable to pay his rent and may lose his home. And he can only avoid this by ending the family life which Ms H and he have established together."
So he was aware of the impact of the decision.
"38. However, the interference is authorised by article 8(2). The notional capital rule is contained in legislation. It is, therefore, in accordance with law. It is part of the law governing the social security benefits, which are part of the welfare state. A welfare state is an integral part of the democratic societies that are parties to the European Convention on Human Rights and Fundamental Freedoms. Expenditure on income-related benefits is one of the major items in the national budget. The combined cost of income support, housing benefit and council tax benefit alone was more than £27,000,000,000 in the last financial year. It is necessary in the interests of the economic well-being of the country to ensure that the large but limited funds available for public financial support are targeted at those most in need. That includes, as I have said, a legitimate anti-avoidance function."
"Domestic housing policy has been a continuing subject of discussion and debate in Parliament over very many years, with the competing interests of landlords and tenants fully represented, as also the public interest in securing accommodation for the indigent, averting homelessness and making the best use of finite public resources. The outcome, changed from time to time, may truly be said to represent a considered democratic compromise. This cannot be said in the same way of the Immigration Rules and supplementary instructions, which are not the product of active debate in Parliament, where non-nationals seeking leave to enter or remain are not in any event represented."
19. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, 80, the Privy Council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate:
'whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'
This formulation has been widely cited and applied. But counsel for the applicants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes  1 SCR 103, from which this approach to proportionality derives. This feature is (p 139) the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R(Razgar) v Secretary of State for the Home Department  2 AC 368, paras 17-20, 26, 27, 60, 77, when, having suggested a series of questions which an adjudicator would have to ask and answer in deciding a Convention question, it said that the judgment on proportionality:
'must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage.' (see para 20).
If, as counsel suggest, insufficient attention has been paid to this requirement, the failure should be made good."