Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2003] NISSCSC C5/01-02(JSA) (25 March 2003)

 


Decision No: C5/01-02(JSA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 JOBSEEKERS ALLOWANCE Appeal to the Social Security Commissioner on a question of law from the decision of the Appeal Tribunal dated 19 April 2001 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by the claimant, with the leave of the legally qualified panel member, against the decision of the Tribunal whereby it was held that the claimant's appeal to the Tribunal was disallowed and that, accordingly, the claimant is not entitled to housing costs.
2. A hearing of the appeal to me was arranged at which Mr McNamee of Tiernans, Solicitors, represented the claimant, who was not present while Miss Stewart of the Decision Making and Appeals Unit appeared on behalf of the Department.
3. The claimant was in receipt of Income Support on the basis that he was unemployed from 11 October 1994. Income Support was replaced by Jobseekers Allowance for the unemployed from October 1996. The claimant accordingly transferred to Jobseekers Allowance (income based) and remained on that benefit until the Decision Maker's decision in this case. Prior to this he was on Income Support while unemployed from 13 May 1991 to 5 July 1994. However, during 1994 the claimant secured employment and, at the same time negotiated to buy a dwelling house for himself, his wife and children. However, he was unemployed at the date of completion of the purchase, namely 19 October 1994. The purchase was made on foot of a mortgage also taken out on 19 October 1994. The claimant was then awarded housing costs from and including 25 January 1995, after having served the relevant qualifying period. Before the purchase of the dwelling, the claimant and his family resided with his father at another address. He did not apply for Housing Benefit whilst living with his father. On 1 June 2000, following a periodic review, the Department considered that the claimant had been incorrectly awarded housing costs. It then revised the award on the grounds of official error and disallowed the award of housing costs.
4. The claimant then appealed. The appeal hearing of 27 March 2001 was adjourned when the Tribunal was informed that the Department was seeking to recover the amount paid to the Woolwich Building Society from 19 June 1996 to 23 May 2000 (the relevant housing costs), because it had not covered this issue in its appeal submission. At the reconvened hearing the Tribunal was informed that the Department had recovered £6,905.47 from the Woolwich Building Society, which, in turn, debited the claimant's account of that amount. The Tribunal then decided that it had no jurisdiction to deal with the issue of the amount or method of the recovery of the sum of £6,905.47.
5. The Tribunal on appeal gave the following reasons for its decision: -

"[The claimant] secured employment in 1994 and negotiated to buy a house. He, his wife and child were living with his father. He did not apply for Housing Benefit while living with his father and, under the then applicable rules, would not have been eligible for Housing Benefit.

Just prior to completion [the claimant] became unemployed. The purchase of the house was completed and, after the relevant qualifying period, he was awarded housing Costs from 25 January 1995 to assist with mortgage instalments.

Under the then applicable legislation (paragraph 5A(6)(7)(b); now paragraph 4(7) and 8(b) of 1996 Job Seekers Allowance (sic) Regulations) [the claimant] was not entitled to housing costs. This was discovered by the Department only in 2000. It is not known how the original error occurred. It was clear that no fault attaches to [the claimant].

Department has reviewed the award of housing costs and decided that [the claimant] is not entitled to housing costs from 25 January 1995. [The claimant] appealed and entitlement is the issue before the Tribunal today. Meanwhile, the Department has recovered the "overpayment" of £7,000 from the Woolwich Building Society and that Society has imposed a penalty of approximately £2,000 on [the claimant]. He will probably lose his home.

The Tribunal has no jurisdiction to dispute the amount and method of recovery but is appalled at the action taken while the appeal was continuing and without regard for the effects on the welfare of the [claimant's] family.

[The claimant's] representative has argued that, applying the Human Rights Act Section 6(2) and having regard to Article 1 of the First Protocol, the following rights must be considered and protected when interpreting what is now paragraph 4(8)(b) of Schedule 2 to 1976 Regulations: protection of private and family life and the right to property.

Having considered jurisprudence relating to these rights, I cannot conclude that there should be a re-interpretation of "was payable" in paragraph 4(8)(b) to avoid a breach of these rights. I do not consider that the entitlement pre-condition for housing costs laid down in paragraph 4(8)(b) does breach these rights. Also, if I am wrong in this respect and the condition is unduly restrictive I do not think that "was payable" can be interpreted to include a situation where a person both

(1) did not apply

and

(2) would not have been eligible if she/he did.

To do would be to conclude that anyone would be entitled to Housing Costs without restriction. I do not consider that the Human Rights Act requires such a sweeping reinterpretation of the benefit rules.

Chairman's Note

Following delivery of the decision to the parties, [the claimant's] representative asked for leave to appeal to the Commissioner.

I agree. Paperwork to be expedited".

6. The record of proceedings made by the legally qualified member, who was the only member of the Tribunal, included the following sentence: -

"Whatever the decision I make today I will grant leave to unsuccessful party to appeal to the Commissioner as Human Rights issue raises substantive point of law."

7. Apparently the Department subsequently has accepted that it was inappropriate for it to request the Building Society to repay the amount of overpaid housing costs without informing it that there was legal obligation to make such a repayment. Consequently it arranged for the sum of £6,905.47 to be repaid to the Building Society to the credit of the claimant's account and also for an ex-gratia payment amounting to £200 paid to the claimant in recognition of the embarrassment and inconvenience suffered by him.
8. In the appeal before me Mr McNamee made it clear that his ground of appeal was fairly narrow in scope but fundamental in nature. He submitted that the Tribunal was wrong in feeling itself bound to interpret the relevant legislation without taking into account the effect of the Human Rights Act – in particular the effect of the legislation, if interpreted narrowly, on the claimant's right to family life.
9. The relevant legislation is that set out in schedule 3 of the much amended Income Support (General) Regulations (Northern Ireland) 1987. Schedule 3 sets out the circumstances (pre 1994), in which housing costs could be included in the award of Income Support. With effect from 2 May 1994 (by reason of the provisions of the Income Support (General)(Amendment) Regulations (Northern Ireland) 1994, which inserted paragraph 5A into Schedule 3), certain circumstances were set out in which housing costs could not be met. Paragraph 5A(1) and (2) are in the following terms: -

"Other housing costs which are not met

5A (1) Subject to sub-paragraphs (2) to (12), the housing costs referred to in paragraph 1(a), (aa) and (b)(eligible housing costs) shall not be met during the relevant period where those costs were incurred -

(a) after 2 May 1994, and

(b) during that same relevant period.

(2) The "relevant period" is any period during which the person who incurred the cost is either –

(a) entitled to income support, or

(b) living as a member of a family one of whom is entitled to income support,

together with any linked period that is to say a period falling between two such periods of entitlement to income support separated by not more than 26 weeks; and for the purposes of this paragraph two or more periods of entitlement and any intervening linked periods form a single relevant period.

…."

10. The evidence before the Tribunal was that the claimant's mortgage was taken out from 19 October 1994 and this was the date on which the cost was incurred for the purposes of paragraph 5A. As the claimant was entitled to (and even was in receipt of) Income Support from 11 October 1994, the cost was incurred during the "relevant period".
11. It was common case that there was no evidence before the Tribunal that the claimant fell within any of the other sub-paragraphs of paragraph 5A of schedule 3.
12. Paragraph 5A(1) states that it is subject to sub-paragraphs (2) to (12). Therefore these sub-paragraphs potentially are relevant. Sub-paragraph (7) has been specifically drawn to my attention. It reads as follows: -

"(7) The conditions specified in this sub-paragraph are that –

(a) during the relevant period the claimant or a member of his family acquires an interest ("the relevant interest") in a dwelling which he then occupies as his home, and

(b) in the week preceding the week in which the relevant interest was acquired, housing benefit was payable to the claimant or a member of his family;

so however that the amount to be met in accordance with this Schedule shall initially not exceed the aggregate of –

(i) the housing benefit payable for that week, and

(ii) any amount included in the applicable amount of the claimant or a member of his family in accordance with regulation 17(1)(e) or 18(1)(f) in that week,

and shall be increased subsequently only to the extent that it is necessary to take account of any increase, arising after the date of the acquisition, in expenditure on housing costs."

13. As the claimant was living as a member of his father's household immediately prior to acquiring an interest in his current home, he was not in receipt of housing benefit and, accordingly, he could not be in a position to satisfy the provisions of sub-paragraph (7).
14. Accordingly, subject to any Human Rights point, the claimant's mortgage was taken out during a "relevant period" and he was not in receipt of housing benefit in the week proceeding the week in which he acquired an interest in his home. Therefore the Tribunal correctly decided that he was not entitled to housing costs under paragraph 5A of schedule 3 to the Income Support (General) Regulations (Northern Ireland) 1987, as amended by the Income Support (General) (Amendment) Regulations (Northern Ireland) 1994. Since October 1996 the relevant legislation, because of the change over to Jobseeker's Allowance, is set out in paragraph 4(8)(b) of schedule 2 to the Jobseeker's Allowance Regulations (Northern Ireland) 1996. It is to the same effect as the legislation that it has superseded.
15. Mr McNamee submitted that the result in this case is entirely unfair unless the word "payable" in sub-paragraph 7 of paragraph 5A of schedule 3 of the Income Support (General) Regulations (Northern Ireland) 1987, as amended (and its successor Jobseeker's provisions) is interpreted in such a way as to mean that the benefit could have been payable to the claimant. Otherwise, he submits, the claimant has been most unfairly penalised because he stayed with his father, rather than taking rented accommodation, immediately before taking up residence in his own house with his wife and children. Also he submits that the net effect of the decision could well, in the normal course of events, result in the claimant losing his house with the resultant entirely detrimental effect on his right to family life.
16. It seems relatively clear that in 1994 the claimant would never have received housing costs if the then relevant provisions had been applied properly. The claimant is not entitled to housing costs as a matter of right. His qualification for housing costs is entirely in accordance with the Regulations. These Regulations exclude the claimant from any statutory right to housing costs. There is no doubt that if his circumstances had been only slightly different to that which they in fact were, he would have been entitled to housing costs. However, as a Commissioner hearing appeals on points of law, I am not entitled to look at the Regulations to decide whether I agree that any particular provision is fair or even sensible. It is Parliament's responsibility, through primary legislation and by authorising secondary legislation, to set out the relevant framework which will determine whether certain persons are entitled to benefit or not. The relevant Government agency may, on occasion, decide to make ex gratia payments in appropriate cases but that is not a matter for a Tribunal or a Commissioner.
17. In my view Mr McNamee is asking me to take a step too far to interpret the legislation in such a way as to permit his client to have a right to Housing Benefit even though the regulations clearly say he was not so entitled.
18. The decision of the Tribunal was made on 19 April 2001. This was after the date the Human Rights Act 1998 came into effect as it came into force on 2 October 2000. Prior to that date, Article 13(8) of the Social Security (Northern Ireland) Order 1998 provided that an Appeal Tribunal is required to take account only of those matters existing at the time that the Department's decision was made and this must include the legislative framework against which the decision was made. The decision made by the decision maker in this case was dated 1 June 2000, before the Human Rights Act came into force. It seems to me that the Appeal Tribunal was not entitled to give any retrospective effect to the Human Rights Act or, in effect, render unlawful a decision that was lawfully made before 2 October 2000 – the date that Act came into force.
19. Even if the Human Rights Act had been in force the question might still remain – has a Tribunal the right to interpret the law in such a way as to re-write the relevant regulations to permit the claimant to be reclassified in such a way as to enable him to receive Housing Benefit?

20 Section 3 of the Human Rights Act 1998 requires primary and subordinate legislation to be read and given effect in a way which is compatible with Convention rights which are the rights set out in the European Convention on Human Rights. By section 1 of the Act Convention rights include all rights, inter alia, set out in Article 8 of the Convention and Article 1 of the First Protocol. These Articles are in the following terms: -

"ARTICLE 8. RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

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.

PROTOCOL 1, ARTICLE 1: PROTECTION OF PROPERTY

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalities."

20. I am not aware that there is any legal justification for the proposition that persons are entitled to Housing Benefit as a human right. It seems relatively clear that Article 8 of the Convention does not impose an obligation on States to provide financial assistance and the failure to do so therefore does not amount to a breach of Article 8 of the Convention - see McAuley v Department for Social Development [2001] NIECA 11 – Appendix to R3/01(IS). The Court of Appeal also held that failure to pay a non-contributory benefit such as Income Support was not in itself a breach of Article 1 of Protocol 1.
21. Miss Stewart has also referred me to the decision of Mr Commissioner Jacobs in CDLA/3908/2001, a Great Britain decision, where in a considered judgment he has held that in European jurisprudence an award of non-contributory benefit is not a possession and does not form the basis for any legitimate expectation that can control its continuance. I consider this proposition to be correct. However, Mr McNamee, in his oral submissions, made it clear that he was not relying on any right to a possession but was submitting that the loss of the right to housing costs would, as a matter of course in this case, result in a grossly detrimental effect to his client's rights to respect for private and family life – Article 8 of the Convention.
22. In this case the withdrawal of housing costs is clearly a considerable blow to the claimant. However, in my view, it is entirely compatible with domestic law set out in the relevant regulations. In my view the decision maker and the Tribunal has accurately reflected the proper application of those regulations. The application of these regulations involve issues of judgment but they are not discretionary in any way. The adjudicating authorities, in my view, are not entitled to decide what they consider to be just or appropriate. They have to apply the law. There may be occasions when legislation is incompatible with the European Convention on Human Rights and the Human Rights Act but I do not believe that this is a case, even if the Convention and Act were applicable, where a Commissioner would be entitled to rewrite the rules to enable the claimant to receive entitlement to housing costs. I am aware that persons in not dissimilar circumstances to the claimant have been and are in receipt of housing costs but I have no general equitable jurisdiction to rectify any real or apparent wrongs to individual claimants.
23. Miss Stewart and Mr McNamee also referred to the English Court of Appeal case of Donoghue –v- Poplar Housing and Regeneration Community Association Limited [2001] EWCA Civ 595 (27 April 2001). In this case Lord Woolf CJ at paragraph 75 stated that section 3 of the Human Rights Act: -

"does not entitle the court to legislate; (its task is still one of interpretation, but interpretation in accordance with the direction contained in section 3)…".

Also Lord Woolf accepted at paragraph 76 that: -

"The most difficult task which courts face is distinguishing between legislation and interpretation. Here practical experience of seeking to apply section 3 will provide the best guide. However, if it is necessary in order to obtain compliance to radically alter the effect of the legislation this will be an indication that more than interpretation is involved."

In my view Mr McNamee is asking me to legislate rather than interpret and the approach in the Poplar case reinforces my view that I am not entitled to take the approach urged upon me by Mr McNamee.

24. Accordingly I hold that I am not entitled to interpret the word "payable" in paragraph 5A(7) in the phrase "was payable to the claimant or a member of his family" to mean "capable of being paid if the circumstances were different". I come to this conclusion even though, as Mr McNamee has pointed out, the result may well be that the claimant or other persons in a similar position end up receiving substantially more housing costs because they have to rent a house and at the same time they lose their ability to stay on in their own house with the assistance of a mortgage contributed to by the State with housing costs at a much lower rate than the housing costs required for the rent. This, as Mr McNamee has pointed out, results in both a claimant and the State both losing out. This may be so. However, in my experience in dealing with Social Security legislation there are numerous anomalies and similar incongruous situations arise not uncommonly. I do not consider that I have the power to rectify such wrongs, if they are in fact wrongs. The reason I am not dogmatic in saying that there are any such wrongs in this case is because obviously, I am not in full possession of all the facts as my jurisdiction has been quite rightly confined to the issues in the present case.
25. Miss Stewart also drew my attention to a further point which, she submitted, appears superficially to have relevance to this case. In the next paragraph I summarise the substance of her submissions in relation to this issue.
26. The Human Rights Act 1998 came into force on 2 October 2000. However, with effect from 2 December 1999, paragraph one of schedule 14 of the Northern Ireland Act 1998 provides that in relation to any time before the Human Rights Act was fully in force, sections 6(2)(c), 24(1) and 71 and schedule 10 "shall have effect as if" the Human Rights Act 1998 "were so in force". Section 24(1)(a) of the Northern Ireland Act 1998 provides that "a Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act - … is incompatible with any of the Convention rights …". However, section 95(4)(b) (in relation to savings for existing laws) – which came into effect on 2 December 1999 - provides that no provision of the Northern Ireland Act 1998 "shall - … render unlawful anything required or authorised to be done by any Act of Parliament, whenever passed". Regulation 2 of the Income Support (General) (Amendment) (Regulations) (Northern Ireland) 1994 inserted paragraph 5A into schedule 3 of the Income Support (General) (Regulations) (Northern Ireland) 1987. The amendment was made in exercise of powers, inter alia, conferred by section 122(1)(a) and 131(1) of the Social Security Contributions and Benefits (Northern Ireland) Act 1982. Paragraph 5A of schedule 3 is within the proper and rational scope of the Department's regulation making powers and is, therefore, authorised by an Act of Parliament. Accordingly Miss Stewart submitted that, by virtue of section 95(4)(b) of the Northern Ireland Act 1998, section 24(1)(a) cannot be applied to make paragraph 5A to schedule 3 unlawful. She also submitted that it is not unlawful for the Department to give effect to lawful legislation.
27. Miss Stewart was correct to raise the point even though she proceeded to give reasons why it was an invalid point. Mr McNamee made no substantial submission to the contrary. I agree that the Northern Ireland Act 1998 provisions do not assist the claimant in the circumstances for the reasons set out by Miss Stewart.
28. In all the circumstances, whilst I have considerable sympathy for the claimant, I am satisfied that the decision of the Tribunal is not erroneous in point of law. Accordingly I dismiss the appeal.

Signed JOHN A H MARTIN QC

CHIEF COMMISSIONER

Dated 25 MARCH 2003