UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Leeds appeal tribunal, held on 4 November 2002 under reference U/01/013/2002/00783, is not erroneous in point of law.

As indicated at the end of the oral hearing, I reduce the period in which an application may be made for permission to appeal to the Court of Appeal from 3 months to 6 weeks, under the power in regulation 5(2)(a) of the Social Security Commissioners (Procedure) Regulations 1999.

The appeal to the Commissioner

2. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with my leave.
3. In view of the issues raised by the appeal, I directed an oral hearing. It was held before me in Doncaster County Court on 11 September 2003. The Secretary of State was represented by Mr D Kolinsky, of counsel. The claimant was represented by Ms R Perez, of counsel. The local authority was represented by Mr J Balsham, a solicitor. All representatives provided skeleton arguments.
4. The case raised similar issues to a child support appeal, CCS/1153/2003. The oral hearing of that appeal was held at the same time. The observations of the representatives in each case were of some relevance to the other case. I am grateful to the representatives in both cases for their assistance with the written and oral arguments on this appeal.

The facts

5. The relevant facts are not in dispute and can be stated very briefly. The claimant is a woman who was in a relationship with a man. After their separation, she remained in their former home and paid rent to him. On those facts, the local authority has decided that she was not entitled to housing benefit.

The legislation

6. The local authority based its decision on regulation 7(1)(c)(i) of the Housing Benefit (General) Regulations 1987. This provides:

(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-

(c) his liability under the agreement is-

(i) to his former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners'.

7. 'Partner' is defined by regulation 2(1) 'unless the context otherwise requires' as 'a member of a married or unmarried couple'. 'Married couple' and 'unmarried couple' are both defined by reference to section 20(11) of the Social Security Act 1986, now re-enacted as section 137(1) of the Social Security Contributions and Benefits Act 1992.
8. Regulation 7 is made under the authority of section 137(2)(i) of the 1992 Act. It authorises regulations

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

The claimant's case

9. The claimant's case is simple. It involves three steps. First, the claimant has been deprived of housing benefit because she was in a heterosexual relationship with her former partner, but would not have been if that relationship had been a gay one. Second, the application of the provision to the claimant violates her Convention right under article 14 of the European Convention on Human Rights and Fundamental Freedoms when read in conjunction with article 8(1). Finally, the provision is outside the power of its enabling authority in section 137(2)(i) and that I must declare that it is of no force or effect.
10. The oral hearing involved a fascinating discussion of a range of issues. Sadly, I have come to the conclusion that I should curb my natural enthusiasm to deal with all of them. There is one key issue on which the claimant's case fails. I concentrate on that one. I must, though, mention one argument put by Ms Perez. She argued that I had no power to remove the discrimination by interpreting regulation 7(1)(c)(i) to cover both gay and heterosexual former couples. She argued that I had power only to level up, not to level down. This argument was explored at some length during the oral hearing and I allowed Ms Perez until the end of the following week to produce authorities on the issue. She produced a detailed written submission analysing domestic and EU case law. I have not circulated this to the other parties, because I have decided the case in a way that avoids this issue. If the issue had been a live one for my decision, her submission would have required response from the other parties. I am grateful to her for her industry.

The arguments of the other parties.

11. Although I am not dealing with the other issues, as a courtesy I set out in summary the arguments for the other parties. The details appear in their skeleton arguments.
12. Mr Kolinsky for the Secretary of State challenged every step in the reasoning necessary for the claimant to succeed. The case was not within the ambit of article 8(1). If article 14 was engaged, the regulation was a valid and proportionate anti-abuse provision. If there was a violation of article 14, the solution was to interpret it to remove the discrimination, not to treat it as made without legislative authority.
13. Mr Balsham for the local authority took a commendably succinct approach. He accepted that sexual orientation was covered by article 14. However, he supported the tribunal's application of regulation 7 on two grounds. First, the present version of regulation 7 had been accepted as valid by the Administrative Court in R (Painter) v Carmarthenshire County Council [2002] Housing Law Reports 447. Second, discrimination between heterosexuals and gays might be a theoretical possibility, but there was no evidence that a group of benefit claimants renting from former partners actually existed.

Preliminary points

14. I mention four preliminary points before coming to the key issue.
15. First, article 8(1). This provides:

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

The housing benefit scheme is a means by which the State shows respect for a claimant's home and family life. It provides financial support from public funds to allow the claimant to retain or obtain a dwelling in which to establish or maintain a home and, in the home, a family. That is sufficient for the circumstances of this case to come within, at least, the ambit of the Convention right in article 8(1) of the European Convention on Human Rights. That in turn is sufficient to trigger the application of article 14. See the approach of the European Court of Human Rights in Petrovic v Austria (1998) 4 Butterworths Human Rights Cases 232 at paragraph 29.

16. Next, article 14. This provides:

'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.'

17. I have no hesitation in accepting the sexual orientation is an 'other status' for the purposes of article 14. I must take the jurisdiction of the European Court into account by virtue of section 2(1)(a) of the Human Rights Act 1998. I find that it supports my view. In Salgueiro da Silva Mouta v Portugal (2001) 31 European Human Rights Reports 1055, the Court said, at paragraph 28 of its judgment, that sexual orientation was 'a concept which is undoubtedly covered by Article 14 of the Convention'. The Court has reiterated that in several later decisions.
18. Third, it is also clear from the terms of regulation 7(1)(c)(i) that someone who has been in a heterosexual relationship is treated differently from one who has been in a gay relationship. It is, of course, possible that a gay partner who remained in the couple's former joint home as a tenant of the other might be denied housing benefit under one of the other provisions of regulation 7. In particular, the circumstances might fall within regulation 7(1)(a) – arrangement not on a commercial basis - or regulation 7(1)(l) – liability created to take advantage of the scheme. But that is not inevitable. It is possible for a gay couple to split up with one remaining in the home as a tenant of the other under an arrangement that is on a commercial basis and without taking advantage of the scheme.
19. Finally, both Mr Kolinsky and Mr Balsham relied on R (Painter) v Carmarthenshire County Council. I accept the authority of that decision of the Administrative Court, in which the court rejected a general challenge to regulation 7. However, it did not deal with the issue before me. It is not an authority that there is no discrimination in one part of regulation 7 on the ground of sexual orientation.

The key issue

20. I now come to what I consider is the key issue.
21. The domestic cases on the application of article 14 have split the consideration into four questions:

•    (i) Do the facts fall within the ambit of one of the other Convention rights?

•    (ii) If they do, is there a difference in the treatment of the claimant and the claimant's chosen comparators?

•    (iii) Are the chosen comparators in an analogous situation to the claimant?

•    (iv) If they are, does the difference in treatment have an objective and reasonable justification in that it pursues a legitimate aim and that the different treatment was proportionate to the aims sought to be achieved?

22. The key issue in this case is question (iii). Lord Justice Laws has suggested that questions (iii) and (iv) should be replaced by a compendious question: are the circumstances of the claimant and the chosen comparators so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of the claimant in comparison with the comparators? See R (Carson and Reynolds) v Secretary of State for Work and Pensions [2003] 3 All England Law Reports 577 at paragraph 61.
23. Whatever the merits of Lord Justice Laws' reformulation, its generality leaves open the question of the criteria that the rational and fair-minded person should apply. The other domestic formulation emphasises the comparative situations of the claimant and the comparators. The Strasbourg jurisdiction identifies the emphasis even more precisely by asking whether the claimant and the comparators are in 'relevantly similar situations'. See the judgment of the European Court of Human Rights in Fredin v Sweden (1991) 13 European Human Rights Reports 784 at paragraph 60.
24. I am sure that these are merely three ways of stating the same test. However, it is the Strasbourg formulation that I have found the most helpful of the three in deciding this case. I have asked: has the claimant shown that for the purposes of regulation 7(1)(c)(i) heterosexual and gay couples are in relevantly similar situations? My answer is that she has not. In some circumstances and in respect of some provisions, the mere fact that legislation makes different provisions for heterosexuals and gays may be sufficient to put the burden onto the State to justify the legislation. But that is not the case with this provision.
25. Regulation 7 is an anti-abuse provision. It excludes two categories of cases from housing benefit. One category consists of cases in which the housing benefit scheme is being abused. The other category consists of cases in which there is a risk that the housing benefit might be abused. In this category, actual abuse does not have to be shown. The risk and the difficulties of proof justify a provision that is not limited to actual abuse.
26. Obviously, regulation 7 does not cover every case in which there is a risk that the housing benefit scheme might be abused. If it did, it would be very much longer. Even then it would inevitably be incomplete. It is possible to speculate with some accuracy about the general process by which the policy makers devised the present form of the regulation. There must have a selection of the circumstances that would be included. That selection must have involved a judgment of the likelihood and frequency with which the risk of abuse would arise. And that judgment must have been based on evidence of actual circumstances that had been found to arise in practice.
27. In that context, it is not necessarily the case that heterosexual and gay couples are in relevantly similar situations. They may not pose the same risk of abuse. There may be no significant difference between heterosexual and gay relationships other than the sexual orientation of the partners. But that does not mean that there is the same risk of abuse when the relationship comes to an end. Whether there is depends first on evidence and then on an assessment of the likelihood and frequency of risk shown by that evidence.
28. The form of regulation with which I am concerned was inserted into the Housing Benefit (General) Regulations 1987 with effect from 25 January 1999. It involved a fundamental rewriting of the former regulation. It is, therefore, a relatively modern provision. It is based on an up-to-date consideration of the evidence of abuse taking into account the experience of local authorities in operating the former version of the regulation.
29. I have considered whether there is an explanation that might account for the omission of any reference to gay relationships other than the lack of risk of abuse to which they might give rise. There are some arrangements of which the law disapproves for policy reasons. It gives effect to this disapproval by refusing to give formal recognition to those arrangements. An example is the way that the law deals with illegal contracts. It also explains, in part at least, the historical failure to make equivalent provision for heterosexual and gay relationships, even when this failure actually operates to the benefit of those in a gay relationship. For example, the incomes of gay couples are not aggregated for income support purposes. This has the result that each partner may be entitled to income support, with the result that a gay household may receive more support from public funds than a heterosexual one. Given the (legitimate) concern at central and local government level about abuse of the housing benefit scheme, I do not believe that this historical reluctance to give legislative recognition to gay relationships would have prevented Parliament, at the very end of the second millennium, from blocking a significant risk of abuse.
30. In the context of these considerations, the terms of regulation 7(1)(c)(i) alone are not sufficient to require the Secretary of State or the local authority to justify the different treatment embodied in the provision.
31. I have considered the practical difficulties that a claimant would have in obtaining evidence to show that there was in practice a risk of abuse that was sufficient to show that heterosexual and gay couples were in relevantly similar situations. They would be considerable. But those difficulties do not allow me to require the Secretary of State or the local authority to justify a provision which, on its terms and in its context, may well not be discriminatory.
32. Put in simple terms, the question I have asked myself is this. Has the claimant done enough to require the State to justify this provision? She has not.
33. This approach has support in the jurisprudence of the European Court of Human Rights. I have already cited Fredin v Sweden. That case involved an alleged violation of article 14 when read in conjunction with Article 1 of Protocol 1. The applicants' licence to exploit a gravel pit was withdrawn. They argued that they were the only persons in the country to be deprived of a licence. Nonetheless, the court held that the applicants had not shown that they and the other parties were in similar situations. The court said:

'60. The court recalls that Article 14 affords protection against discrimination, that is treating differently, without an objective and reasonable justification, persons in "relevantly" similar situations. For a claim of violation of this Article to succeed, it has therefore to be established, inter alia, that the situation of the alleged victim can be considered similar to that of persons who have been better treated.

'61. Before the Commission the applicants endeavoured to demonstrate that this condition was satisfied by submitting a report by Mr Karlsson. After assessing this evidence, the Commission held, however, that there was nothing to show that the applicants were in a similar situation to those companies whose permits were not revoked.

In their submission to the Court the applicants did not try to refute the Commission's assessment, nor did they adduce other evidence. Their main argument was that, since theirs was the only ongoing business to have been stopped, it was for the Government to explain in what respect their case was dissimilar to those of the other enterprises which had been allowed to continue their activities or to give a plausible reason for their exceptional treatment.

The Court cannot subscribe to this argument. It is true that, in the absence of further information from the Government with regard to the implementation of the 1964 Act and, in particular, the 1973 amendment thereto, the Court has to presume that the applicants' pit is the only one to have been closed by virtue of that amendment. However, this is not sufficient to support a finding that the applicants' situation can be considered similar to that of the other ongoing businesses which have not been closed.

The Court perceives no reason why it should assess the evidence otherwise than did the Commission and accordingly holds that no issue of discrimination contrary to Article 14 arises.'

34. The Court's decision is based on the principle that an applicant has to do more than prove a difference in treatment. The applicant has to show that the persons have been treated differently despite being in relevantly similar situations. If the applicant does not do that, the State does not have to justify what it has done. Still less does it have to produce evidence to show that the applicant and the applicant's selected comparators are not in relevantly similar situations.
35. I must take that jurisprudence into account under section 2(1)(a) of the Human Rights Act 1998. I do so. I am not bound by it. Nonetheless, I follow it. It is a sensible approach that produces a fair balance between the claimant and the State. A claimant is not required to undertake the nearly impossible task of showing that different treatment cannot be justified. But nor is the State required to justify a provision on mere assertion that it might be discriminatory.
36. Applying that principle, the claimant has not shown, for the reasons that I have explained, that heterosexual and gay couples are in relevantly similar situations so far as the risk of abuse identified by regulation 7(1)(c)(i) is concerned.

The experience of the local authority

37. Mr Balsham told me that his local authority had not found that a gay former partner remained in the couple's former home after their separation. Ms Perez objected on the ground that that was evidence. She also argued that the local authorities would only investigate the circumstances that are actually covered by the terms of regulation 7.
38. Ms Perez is correct that Mr Balsham was giving evidence. I have not relied on it in coming to my decision. However, Ms Perez is not correct that local authorities limit investigations to the circumstances that are presently covered by regulation 7. The terms of regulation 7 do not allow that. As I put to her at the oral hearing, how can a local authority ask a claimant: are you taking advantage of the scheme? Or: is your tenancy on a commercial basis? Also, my experience of cases involving regulation 7 is that the officers who administer housing benefit are astute to identify circumstances that seem to them to fall outside the spirit of the scheme and to attempt to bring them within one of the heads of regulation 7.
39. I have not taken Mr Balsham's comment into account in coming to my decision. But, having come to my decision, I notice that it shows that, at least in the experience of his local authority, there is a difference between the behaviour of heterosexual and gay couples when they separate. That confirms me in my conclusion that the claimant has not done sufficient to require the local authority or the Secretary of State to justify the terms in which regulation 7(1)(c)(i) is drafted.

Conclusion

40. The claimant has sought throughout to place the burden on the local authority or the Secretary of State to justify the terms of regulation 7(1)(c)(i). She has used the terms of the provision to show that heterosexual and gay couples are treated differently. But she has not produced any evidence, beyond the terms of the provision, to show that they were in relevantly similar situations. That is fatal to her case.
41. I have considered whether I should allow the claimant a chance to provide the evidence to remedy the deficiency in her case. But it would be wrong to do that. The time for adducing evidence was before the tribunal. I have no power to hear evidence, unless the tribunal went wrong in law and I am substituting a decision without directing a rehearing. I cannot hear evidence in order to decide whether or not the tribunal went wrong in law. See the terms of paragraph 8 (especially 8(5)) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. I recall that Ms Perez (correctly) objected to Mr Balsham giving evidence to me.
42. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 22 September 2003