UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CJSA_232_2003 (12 June 2003)

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Aberystwyth appeal tribunal, held on 17 October 2002 under reference U/03/181/2002/00103, is not erroneous in point of law.

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 the leave of Mrs Commissioner Jupp.
3. Mrs Jupp directed an oral hearing of the appeal. It was held before me in Cardiff on 3 June 2002. The claimant attended and spoke on his own behalf. The Secretary of State was represented by Mr V Lewis of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to both of them for their clear submissions.

The issues

4. The claimant raised two issues on his appeal.
5. The main issue was whether the use of a standard mortgage interest rate for determining eligible housing costs for his income-based jobseeker's allowance is in violation of the claimant's Convention rights under the Human Rights Act 1998. He was locked into a fixed rate mortgage at a rate that was higher than the standard rate, with the result that his eligible housing costs were capped at the standard rate.
6. The subsidiary issue was whether his housing costs were based on the correct amount.

The main issue

7. The claimant argued that the standard interest rate was in violation of his Convention right under article 14 of the European Convention on Human Rights and Fundamental Freedoms when read in conjunction with either article 8 of the Convention or article 1 of Protocol 1. He did not argue that there was a violation of either of those other articles. Only that the standard interest rate was within the ambit of one or other of them so as to bring article 14 into operation.
8. Mr Lewis argued that the standard interest rate was not within the ambit of either article 8 or article 1 of Protocol 1. But, if it were, there was no discrimination under article 14, because claimants paying different rates of interest were not in comparable circumstances or the use of a standard rate was justified and proportional.

Is the standard interest rate within the scope of article 8?

9. This Convention right provides that:

'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.'

10. This Convention right does not guarantee an absolute right. It requires only 'respect'. All forms of income-related financial assistance provided from public funds show respect for claimants' homes. They provide assistance towards meeting the housing costs or include those costs as an element in the calculation of the assistance provided. So: housing benefit may meet all or part of a claimant's rent; income support and income-based jobseeker's allowance take account of mortgage interest payments in fixing the applicable amount; and council tax benefit may provide relief from all or part of the council tax payable on the claimant's home. All of those schemes involve restrictions or caps. Even with those restrictions and caps, the assistance provided shows respect for claimants' homes.
11. I accept Mr Lewis' argument, which is often presented on behalf of the Secretary of State, that this Convention right had not been used as the basis for a right to any particular amount of benefit. I accept that. However, the issue for me is not whether there is a violation of this right. It is whether the standard interest rate is within the ambit of this right.
12. It is possible to imagine forms of income-related public assistance that would not show respect for a claimant's home. For example, a scheme might deny any support until a claimant's home had been sold and the proceeds of sale exhausted in maintenance. That might well be a violation of article 8(1) sufficient to require justification under article 8(2).
13. The claimant's argument is that if the standard interest rate is not sufficient to meet mortgage interest payments, the result may ultimately be that the claimant's home has to be sold. I am prepared to accept, at least for the sake of argument, that that is sufficient to bring the standard interest rate within the ambit of article 8.

Is the standard interest rate within the scope of article 1 of Protocol 1?

14. This Convention right provides that:

'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 penalties.'

15. As I understood the claimant's argument, it was this. By requiring him to meet the shortfall between his actual interest rate and the standard interest rate, he was being deprived of his possession. That possession was either the money he had to pay or his home if it had to be sold.
16. Mr Lewis argued that the claimant was not being deprived of anything. It was just that the housing costs element in the applicable amount for calculating his entitlement to a jobseeker's allowance was not equal to the full interest payment on his home. I accept that argument. Indeed, as I pointed out to the claimant, on the facts he has not been deprived of his home and he had somehow met the shortfall. I asked him how he had met the shortfall. His answer was vague. But the indisputable fact is that somehow he has managed to retain his home.
17. Having heard Mr Lewis' argument, the claimant accepted that he was in some difficulty in bringing himself within the scope of this article. He tried to redefine the possession involved as an intellectual non-material right, which he identified as the right under law to equal treatment in the way the law is administered.
18. This was an ingenious, off-the-cuff response. But I am not sure that even the claimant was persuaded by his argument. I am not. What he has identified is a constitutional right. It is not the form of economic possession within the meaning of this article. And it is too far removed from being one for the case to fall within the general ambit of the article.

Is the standard interest rate in violation of article 14?

19. This Convention right provides that:

'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.'

20. Assuming that the standard interest rate is within the ambit of article 8, is it in violation of article 14 when read together with that article?
21. The claimant introduced his argument on discrimination by pointing out the similarities between random number generation and the standard interest rate. I was not persuaded by this part of his argument. The similarities are superficial and cannot detract from the fact that the standard interest rate is not randomly generated. Over time, the standard rate has had a general alignment with prevailing market rates and tracked the general trend in those rates.
22. The claimant cited a number of authorities. Most of them lay down basic principles that are not in dispute. Specifically, he relied on Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2001] 3 All England Law Reports 393. This case concerned the liability for chancel repairs of owners of former glebe land. The Court of Appeal held that this was an arbitrary form of taxation that was in violation of article 1 of Protocol 1. It also held that it was discriminatory. The discrimination was between 'the owners of land which was formerly glebe land and of land which was not' (paragraph 50). That is discrimination on the basis of property, which is expressly covered by article 14.
23. I am not persuaded that the facts of that case and this are analogous. I do not find useful or relevant a comparison between an arbitrary tax that was but a historic relic with no legislative basis (see paragraph 46 of the judgment of the court) and a modern legislative restriction on the amount of eligible housing costs in a scheme for publicly funded financial assistance.
24. The claimant argued that ultimately the discrimination was based on credit rating, because those paying higher than the standard interest rate are likely to be those who have a low rating. I reject this argument for this reason.
25. In order for a discrimination to be relevant under article 14, it must be based on a personal characteristic or status. See the judgment of Sir Richard Tucker in R (on the application of Barber) v Secretary of State for Work and Pensions [2002] 2 Family Law Reports 1181 at paragraphs 28 to 34. I also respectfully agree on this issue with the more detailed analysis of Mr Commissioner Bano in CIS/3280/2001.
26. A credit rating is not a personal characteristic or status for this purpose. Wallbank does not help the claimant. The discrimination there was based on property, which is expressly covered by article 14. For the reasons I have already set out, the claimant cannot identify any interference with his property.
27. That apart, the claimant's also fails because the standard interest rate is a proportionate response to legitimate aims.
28. Why was the standard interest rate introduced? Mr Lewis explained that the standard interest rate was introduced for two main reasons. I accept his reasons as providing the main aims for the change; they accord with my recollection of the reasons given at the time of the change. I deal with the case first on the basis that they were the only, or only significant, reasons.
29. The first reason for the standard interest rate was that it allowed the Department of Social Security to take advantage of the administrative savings arising from computerisation. With a standard interest rate, the change to the housing costs element of the applicable amount for every claimant could be done centrally with a single action. That obviously involved saving of staff time and allowed the change to be implemented more quickly, which was to the advantage of claimants. The second reason for the standard interest rate was that it helped to prevent overpayments that arose from claimants failing to report reductions in their mortgage interest rates. That reduced the misuse of public funds and prevented claimants from incurring recoverable overpayments.
30. So, the aims were (a) improved administration and (b) the avoidance of overpayments. Both of those were legitimate aims for the Department to pursue. The standard interest rate was also a proportionate means of achieving those aims. Indeed, it is difficult to see how the aims could have been achieved as successfully as they have been in a different way.
31. The claimant argued that the purpose behind the change to a standard interest rate was different from that identified by Mr Lewis. He argued that the real purpose was to make small savings in the overall amount of benefit payments in order to present an attack on social security spending as part of the electioneering for the 1997 election.
32. I do not accept that the aims behind the introduction of the standard interest rate were so limited or cynical as the claimant suggests. I am sure, though, that there is some truth in what he says. The policy officials cannot have overlooked the fact that one of the effects of the change would be to reduce the amount of social security benefit being paid. Nor can the ministers who approved the policy have overlooked that or the political opportunities it provided. However, I have no reason to reject the reasons Mr Lewis has given for the change. So, at most the saving of money was an additional aim behind the change or was seen as a beneficial consequence. I now deal with the case on the basis that the reasons for the change were those given by Mr Lewis with the addition of a savings in the social security budget or the housing costs part of that budget.
33. Whether taken alone or in combination with the other aims, it was legitimate for a spending Department to take account of the amount of money devoted to one part of its budget and to one part of public finance. It was also a proportionate approach. I must allow the Department a degree of deference in the way that it allocates the limited resources within its budget and decides on the appropriate balance between the interest of home owners and others who claim benefit. A limited saving on one part of a budget is proportionate.
34. The claimant also argued that the aims he had identified could have been achieved without discriminating between claimants. He suggested that they could have been achieved by reducing all housing costs to, say, 90% of the mortgage interest actually payable. In other words, the claimant was inviting me to rewrite the legislation so as to achieve in a different way what he saw as the aim being pursued. I must resist his invitation. His argument fails to identify correctly the aims being pursued. It also fails to recognise the degree of deference to which I have referred. I have no power to rewrite legislation, even in order to give better effect to the aims being pursued.

The subsidiary issue

35. This issue was whether or not the decision-maker had used the correct figure for the housing costs element in the claimant's application amount. The answer is: yes. There are documents in the papers that show a higher figure than that used by the decision-maker. However, there is also a document that shows that the figure used was the outstanding balance of the claimant's mortgage in 1996: page N. There are no documents that show what has caused the increase since then. It is probably a result of the capitalisation of arrears. The decision-maker was correct to exclude them from the calculation.

Summary

36. The appeal tribunal came to the correct decision in law. The standard interest rate in not a violation of the claimant's Convention rights. His housing costs were correctly calculated. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 12 June 2003