England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		6th February 2007

1. MR JUSTICE MITTING: The claimant is entitled to housing benefit. It is paid by Brighton and Hove City Council. A dispute has arisen between him and the Council as to the manner in which it should be paid. The Council wish, in accordance with the longstanding policy, to pay by crossed cheque. The claimant declines to accept a crossed cheque for a number of reasons but principally that he does not have, and is unwilling to open, a bank account.
2. The manner in which payment of housing benefit can be made is prescribed by regulations. Until 6th March 2006, the relevant regulation was regulation 88 of the Housing Benefit General Regulations 1987 SI 1987/1971. Since 6th March 2006, the relevant regulation is the Housing Benefit Regulations 2006 SI 2006/213. The wording is identical. It provides:

"(1) Subject to paragraphs (2) and (3) and regulations 90 to 97 (frequency of payment of rent allowance, and payment on account of a rent allowance, payment provisions, offsetting) the appropriate authority shall pay housing benefit to which a person is entitled under these Regulations at such time and in such manner as is appropriate, having regard to-

(a) the times at which and the frequency with which a person's liability to make payment of rent ... arises, and

(b) the reasonable needs and convenience of the person entitled thereto."

There is then provision for small payments and the date on which first payment is to be made.

3. Guidance issued by central Government, not pursuant to any provision in primary legislation, contains the following advice:

"Method of payment

6.120 You have the discretion to decide how to pay HB [housing benefit], but you must take into account the reasonable needs and convenience of the claimant. You should not make payments by a method which places unreasonable demands on the claimant, for example do not:- insist on payment by credit transfer when the claimant does not have a bank or giro account; expect to pick up payments from an office which is difficult to reach by public transport."

4. In specific reference to the Cheque Act 1992, the following paragraph states:

"Regulation 88 requires LAs [Local Authorities] to consider the reasonable needs and convenience of the claimant when making payments of benefit. In deciding this the claimant's individual circumstances must be considered. You cannot insist on making payment by crossed cheque in every case, but should explain the risk attached to sending uncrossed cheques without the words 'account payee' or 'a/c payee' by post. However, you should send crossed cheques to claimants without a bank account."

One of the arguments advanced by the Council is that they have in this instance followed that advice to the letter.

5. The advice is, however, at least curious. The penultimate sentence of the paragraph which I have read states, unsurprisingly, that councils cannot insist on making payments by crossed cheque in every case and goes on to identify the risk of paying by open cheque. The last sentence, advising in imperative terms that a crossed cheque should be sent to claimants without a bank account, appears flatly to contradict the preceding sentence. In my view, it clearly does contradict it. The only way of making sense of the two sentences read together is to add the word "not" after "should" and before "send" in the last sentence. The advice appears to contain a typing error. Thus construed, it makes perfect sense. It is advice that councils cannot insist on making the payment by crossed cheque in every case and should not do so in the one case where payment by crossed cheque is bound to cause difficulty for the housing benefit claimant, namely one who does not have a bank account. Accordingly, I reject as irrational the defendant's reliance on the non-statutory guidance as printed because it seems to me that the non-statutory guidance plainly contains a typing error and to follow guidance which contains an obvious error is not a rational act of administration.
6. The Council's fallback position is that it is nonetheless reasonable and lawful to pay Mr Spiropoulos by a crossed cheque. That argument requires consideration of two factors. First, the Council's arrangements for making payment of housing benefit. They are set out in a witness statement, signed only a few minutes before this expedited hearing started, by Mr Paul Ross-Dale, the Benefits Security Manager He explains, in detail into which it is not necessary for me to go, that payment by crossed cheque has advantages of administration to the Council which payment by open cheque or by cash does not. By themselves, they would not persuade me that payment by crossed cheque to Mr Spiropoulos was a reasonable and lawful fulfilment of the obligation under regulation 88 to take into account or to have regard to the reasonable needs and convenience of the person entitled thereto.
7. It may be asked why Mr Spiropoulos does not have a bank account. He does not say that he does not have a bank account because it costs money, which he cannot afford, to open one, but he asserts two reasons why he cannot and should not be required to open a bank account: first, religious; secondly that he is unable to open a bank account because he lacks necessary items such as proof of identity.
8. It is not for this court to weigh the reasonableness or otherwise of religious belief. To embark upon such a course would be fraught with difficulty and might risk infringing Article 9 of the European Convention on Human Rights, but the nature of Mr Spiropoulos' religious views ought to be stated. He claims to follow the tenets of classical Greece; in Christian language, pagan beliefs. He claims to believe in the 12 Olympian gods in which Greeks in classical times believed. He says that that religion prevents him from opening a bank account. He does not adduce any evidence to that effect and, indeed, when invited by me to consider the question, was unable to put before me any plausible argument for saying that that religion prohibts the opening of a bank account in the 21st century. Bank accounts were, as far as I know, unknown to classical Greece. I can see no way in which those who observed the religious beliefs and the practices of classical Greece could possibly have foreseen the invention of bank accounts, let alone any reason why, if they proved useful to commerce, they would have been prohibited from using them. Trading was permitted in ancient times. Means had to be established for the settling of debts between traders. I cannot conceive that the religious beliefs held by Mr Spiropoulos would have as one of its tenets a prohibition upon something which in modern times facilities trade. The position is not like that of Islam, also a religion which requires observance of certain rules in financial transactions, notably that money may not be borrowed or loaned at interest. Islam does not prohibit the opening of a bank account which does not pay interest. Accordingly, in my view, on the evidence which I have, nothing in the religious beliefs held by Mr Spiropoulos in fact prohibits him from opening a bank account. The first objection to that route, accordingly, is not made out.
9. As to the second proposition that he lacks the means to open a bank account, that is part addressed by Mr Ross-Dale's witness statement. In paragraph 14 he notes, and I accept, that the Council has reached an arrangement with the Co-operative Bank, which has a branch in Brighton, whereby they will provide basic bank accounts to all housing benefit claimants who request them and who are willing to complete the application documentation. Money laundering regulations, I accept, now require proof of identity, including a photograph of the applicant. Mr Spiropoulos says he does not have any such proof; but he has had in the past when, in the course of his dealings with the City Council, exceptionally, the City Council opened a cheque in his favour. The note, which bears the signature of the three staff who dealt with it, records that he produced a driving licence with a picture and signature on it. He did in fact have, for a time, a bank account with Barclays, an account opened, as far as I can tell, in recent times when money laundering regulations applied. Accordingly, he has in the past had an account which has required him to produce the evidence of identification which he says he does not have. He does not explain the circumstances in which he no longers comes to have such evidence. Indeed, from the reciting of his objections which I have given, it is apparent to me that, however charmingly he puts it, he is in fact creating difficulties where reasonable conduct on his own part would avoid them. The Council's obligation under regulation 88, or 91 now, is to meet the reasonable needs and convenience of the person entitled to housing benefit. Mr Spiropoulos' objections to receiving payment by crossed cheque into an account which he could well open do not seem to me to arise from his reasonable needs or convenience, but to be reasons advanced by him for creating a difficulty for the Council for its own sake.
10. Accordingly, I dismiss this application for judicial review of the Council's decision to pay by means which I hold in the circumstances to be reasonable.
11. MR BEGLAN: My Lord, in light of your Lordship's judgment, I ask for my costs.
12. MR JUSTICE MITTING: I am unimpressed, as was Munby J, by the approach, even under the pressure of time, by the Council to this application. Mr Spiropoulos, your claim has not succeeded. The Council now claim their costs against you for resisting it. Do you have anything to say about that?
13. MR SPIROPOULOS: I have no income, sir. At this point I cannot pay anything. My income is at this point £40 a week in income support.
14. MR JUSTICE MITTING: Right.
15. MR BEGLAN: As my Lord knows, in the case of Boxton(?), in cases where there is public funding but the existence of the public funding does not matter, the claimant's means should not deter your Lordship from making an order in principle.
16. MR JUSTICE MITTING: I appreciate that but they may well have some bearing on those who make the application. There is no point in making orders that are not going to be met, let alone by a Council which is not, despite time pressures, giving all the assistance that the court can reasonably anticipate.
17. MR BEGLAN: Your Lordship makes those observations, which I cannot counter. I think your Lordship pointed out the timescale. We won the case. Your Lordship has found as a fact that it is clear from documentation BHCC1 and BHCC2 that the claimant's objections to this were unreasonable. The local authority did its best to counter those in the correspondence. It set out in some detail in the correspondence why this was always misconceived. Your Lordship found that it was unreasonable for the claimant to take this stance at the end of the day. We in principle ought to have our costs. We hear about whether it is pragmatic to enforce them but that is a decision which is one for the local authority.
18. MR JUSTICE MITTING: Mr Spiropoulos, what they say is, although you cannot pay, they want as a matter of principle an order which they know they cannot enforce.
19. MR SPIROPOULOS: You cannot get something from somebody who has nothing, is my response to that.
20. MR JUSTICE MITTING: I readily appreciate that but they are right in saying they are entitled to have it, despite the criticisms that have been made of them. I order you to pay their costs, subject to a detailed assessment, in the confident expectation that you will hear no more about that aspect of it.