UK Social Security and Child Support Commissioners' Decisions

 


[2006] UKSSCSC CIS_1916_2005 (17 March 2006)

CIS/1916/2005

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This is an appeal by the Claimant, brought with my permission, against a decision of the Fox Court Appeal Tribunal made on 23 February 2005. For the reasons set out below that decision was in my judgement erroneous in law. I allow the appeal, set aside the Tribunal's decision and remit the matter for redetermination by a differently constituted appeal tribunal in accordance with the directions set out in paragraph 45 below.

Introduction

2. The Claimant, who is now aged 53, lived in a hostel between March 1998 and October 2002, having been rendered homeless when she lost her tenancy of council accommodation. In October 2002 she went to live in a 3 bedroomed maisonette which was also occupied by her mother and her sister, and of which her mother was the tenant. The Claimant's mother died in June 2004, and her sister succeeded to the tenancy of the maisonette. The Claimant continued to live there, occupying one of the bedrooms, and sharing use of the kitchen and the living room, and on the basis that she would pay rent to her sister.
3. The Claimant has been in receipt of income support since 1998 as a person incapable of work. She is also in receipt of the lower rate of the mobility component and the middle rate of the care component of disability living allowance.
4. On 30 June 2004 a form was sent to the Claimant by the Department requiring answers to certain questions, for the purpose of determining whether the Claimant was entitled to the severe disability premium (SDP) for income support purposes. The Claimant answered "yes" to the question "Does anyone live with you?" It having emerged, in answer to a question on a further form, that that person was the Claimant's sister, on 16 September 2004 a decision was made that the Claimant was not entitled to the SDP, on the ground that she was living with her sister – i.e. a person within the definition of "close relative" in the legislation.
5. In her grounds of appeal the Claimant stated that she did not see why the position should be any different from what it had been when she was living in the hostel, sharing kitchens and a sitting room with some 20 other people, during which time she had been in receipt of the SDP. She further contended that if she had been living in the house of a stranger, she would have been entitled to the SDP. In the Record of Proceedings taken by the tribunal chairman it is recorded that the Claimant contended that she and her sister lived in separate households, a contention which the Claimant has repeated in this appeal. She further stated, however, and this evidence was accepted by the Tribunal in its Statement of Reasons, that "sometimes she shops, sometimes I do. Ditto cooking."
6. The Tribunal dismissed the appeal, holding that the Claimant "resided with" her sister and so did not satisfy the condition of entitlement to the SDP in para. 13(2)(a)(ii) of Schedule 2 to the Income Support (General) Regulations 1987 ("the 1987 Regulations") that "he has no non-dependants aged 18 or over normally residing with him or with whom he is normally residing."
7. Although the Tribunal did not in terms refer to this, there is no doubt that, if the Claimant had been sharing the maisonette with and paying rent to someone other than a close relative, she would have been entitled to the SDP, by virtue of the fact that regulation 3(2A)(b) of the 1987 Regulations excludes from the definition of "non-dependant" "a person, other than a close relative, to whom the claimant ….. is liable to make payments on a commercial basis in respect of his occupation of that person's dwelling."

The Claimant's contentions in this appeal

8. The Claimant's contentions in this appeal, which are set out in her original grounds of appeal and in a number of subsequent written submissions, can be summarised as follows:

(1) She should have been held entitled to the SDP under the terms of legislation as it stands because (a) she is not "residing with" her sister because (i) that expression means "sharing their bed and being engaged in sexual relations", and (ii) although they share the kitchen and living room, they are independent households and (b) the definition of "non-dependant" also excepts "any member of the claimant's family".

(2) The Tribunal's decision was in any event erroneous in law in that the Statement of Reasons did not deal with the Claimant's arguments that she did not understand (a) why she had been entitled to the SDP when she had been living in the hostel, where she also shared a kitchen and living room with others, but was not entitled to it now, and (b) why she was not entitled to the SDP when she would have been entitled to it if she had been living in the house of a stranger.

(3) The Tribunal's decision was in breach of Article 6 of the European Convention on Human Rights in that she was never supplied with a full and accurate version of the relevant legislation.

(4) The Tribunal's decision was in breach of the following further provisions of the Convention:

(a) Article 5 (right to liberty and security of person), in that it is safer for her to live with her sister than with a stranger, and the denial of entitlement to the SDP if she is living with her sister makes it less easy for her to do so;

(b) Article 8 (right to respect for private and family life, home and correspondence), in that the Claimant is in effect penalised for wishing to live with her sister;

(c) Article 1 of Protocol 1 (protection of property), in that the Claimant's original award of SDP whilst she was living in the hostel was for life, and she has been deprived of that.

(d) Article 14 (prohibition of discrimination), in conjunction with one or more of the above Articles, in that if she had been living with and paying rent to a stranger, she would have been entitled to SDP.

The relevant statutory provisions

9. "Non-dependant" is defined by Reg. 3 of the 1987 Regulations, which provides as follows:

"(1) In these Regulations, "non-dependant" means any person, except someone to whom paragraph (2), (2A) or (2B) applies, who normally resides with a claimant or with whom a claimant normally resides.

(2) This paragraph applies to –

(a) any member of the claimant's family;

(b) a child or young person who is living with the claimant but who is not a member of his household by virtue of regulation 16 (circumstances in which a person is to be treated as being or not being a member of the household);

(c) a person who lives with the claimant in order to care for him or for the claimant's partner and who is engaged for that purpose by a charitable or voluntary organisation which makes a charge to the claimant or the claimant's partner for the care provided by that person;

(d) the partner of a person to whom sub-paragraph (c) applies.

(2A) This paragraph applies to a person, other than a close relative of the claimant or the claimant's partner, -

(a) who is liable to make payments on a commercial basis to the claimant or the claimant's partner in respect of his occupation of the claimant's dwelling;

(b) to whom the claimant or the claimant's partner is liable to make payments on a commercial basis in respect of his occupation of that person's dwelling;

(c) who is a member of the household of a person to whom sub-paragaph (a) or (b) applies.

(2B) Subject to paragraph (2C), this paragraph applies to –

(a) a person who jointly occupies the claimant's dwelling and who is either –

(i) a co-owner of that dwelling with the claimant or the claimant's partner (whether or not there are other co-owners); or

(ii) jointly liable with the claimant or the claimant's partner to make payments to a landlord in respect of his occupation of that dwelling,

(b) a partner of a person to whom sub-paragraph (a) applies.

(2C) ………………………………………………

(3) ………………………………………………

(4) For the purposes of this regulation a person resides with another only if they share any accommodation except a bathroom, a lavatory or a communal area [but not if each person is separately liable to make payments in respect of his occupation of the dwelling to the landlord].

(5) In this regulation "communal area" means any area (other than rooms) of common access (including halls and passageways) and rooms of common use in sheltered accommodation."

The position apart from the Human Rights Convention

10. I consider under this heading those of the Claimant's contentions which I summarised in paragraph 7(1) and (2) above. The question is whether the Tribunal erred in law in holding that the Claimant was "residing with" her sister and therefore did not fulfil the condition of entitlement to SDP in paragraph 13(2)(a)(ii) of Schedule 2 to the 1987 Regulations that "he has no non-dependants aged 18 or over normally residing with him or with whom he is normally residing." The Claimant says that it should have been held that she is not "residing with" her sister.
11. The definition of "non-dependant" in regulation 3(1) restates the requirement that the person must be someone who normally resides with the claimant (or with whom the claimant normally resides). Regulation 3(4) provides that a person resides with another only if they share any accommodation except a bathroom, a lavatory or a communal area.
12. In Bate v. Chief Adjudication Officer [1996] 2 All ER at p.798 Lord Slynn said this in relation to a previous version of reg. 3, para. (1) of which read: "In these Regulations "non-dependant" means any person, except someone to whom paragraph (2) applies, who normally resides with a claimant":

"I do not see any indication in the regulation that "resides with" is to be given any meaning other than its ordinary meaning. It seems to me to mean no more than that the claimant and the other person live in the same residence or dwelling. There is no need to read into the phrase "resides with a claimant" the qualification that the household has to be that of the claimant or that the dwelling must be one in which the claimant has the legal interest and that the other person is there in a subordinate position (it is not his household) or without any legal interest before that person can reside with the claimant."

13. For present purposes the important part of that passage is the first two sentences, because the remainder is concerned specifically with a point which can no longer arise, owing to the amendment of reg. 3(1) to include the words "or with whom a claimant normally resides" which are now to be found there.
14. In R (Kadhim) v. Brent Housing Board 2001 QB 955 the Court of Appeal was concerned with the meaning of (for present purposes) very similar provisions relating to housing benefit. Reg. 7(1) of the Housing Benefit (General) Regulations 1987 (as then in force) in effect excluded from entitlement to housing benefit "(a) a person who resides with the person to whom he is liable to make payments in respect of the dwelling and …..(i) that person is a close relative of his or his partner." By reg. 3(4):

"a person resides with another only if they share any accommodation except a bathroom, a lavatory or a communal area [defined as "areas (other than rooms) or common access (including halls and passageways)]"

15. In that case the claimant lived in the same house as his landlord, who was also his brother. The housing benefit review board upheld the local authority's decision refusing housing benefit, on the ground that, as the claimant was sharing a kitchen and living room with his brother, he was treated by reg. 3(4) as residing with his brother. The claimant sought judicial review, contending that a finding that that a kitchen or living room were shared with a close relative was a necessary but not a sufficient condition for a finding that he "resided with" that relative.
16. The Court of Appeal agreed with that contention. In para. 11 Buxton L.J, giving the judgment of the Court, said that he agreed with the view which the judge below (Munby J.) would have taken had he not felt himself bound to take the contrary view by earlier Court of Appeal authority. In para. 7 Buxton L.J. had summarised that view as follows:

"Munby J. found compelling the submission ….that "reside" was an ordinary English word, which in the absence of statutory counter-indication had to be given its ordinary meaning: a view also taken, in respect of different Regulations, by Lord Slynn of Hadley in Bate v. Chief Adjudication Officer. Regulation 3(4) did not, in its natural meaning, provide such counter-indication so as to substitute for a general approach to the meaning of reside a statutory rule that where persons share any accommodation other than bathroom, lavatory or communal areas they necessarily reside with each other. The judge held that the natural meaning and implication of the expression "only if" in regulation 3(4) was to impose a necessary, but not a sufficient, condition for a finding of residence

17. In para. 11 of the Court of Appeal's judgment Buxton L.J. then continued:

"No doubt in practical terms there might not be many cases in which a board [i.e. a housing benefit review board] would not find that A was residing with B, in the normal meaning of that term, when A and B shared accommodation other than bathroom, lavatory or communal area; but the wording of the regulation does not drive them to that conclusion as a matter of law. All that the regulation, on its natural construction, does is to preclude such a finding where A and B are not sharing any accommodation beyond bathroom lavatory or communal area."

18. What emerges from the above authorities is that the expression "resides with" in the definition of "non-dependant" is to be given its ordinary meaning, and in the view of Lord Slynn in the Bate case, it means no more than that two persons live in the same dwelling. It is not, therefore, limited (as the Claimant contends) to persons who live as a couple. Persons occupying separate bedrooms, but sharing a kitchen and living room, can be (and indeed in my view barring exceptional facts will be) residing with each other.
19. In the present case the Tribunal said, in the penultimate paragraph of its Statement of Reasons, that "as well as the bathroom, [the Claimant] and her sister share the kitchen and living room, so for paragraph (4) [i.e. para. (4) of Reg. 3 of the Income Support (General) Regulations 1987) they are residing with each other ………" That sentence is perhaps open to the criticism that, like the housing benefit review board in the Kadhim case, it assumed that if kitchen and living room were shared then the Claimant and her sister were necessarily "residing with" each other. I think that the Tribunal's decision was probably erroneous in law on that ground.
20. I have considered whether I am able, on the very limited evidence before the Tribunal, to substitute a decision to the same effect as that made by the Tribunal – i.e. that the Claimant was residing with her sister. I would refer to the statement of Buxton L.J. in the Kadhim case that there are not likely to be many cases where living accommodation other than bathroom, lavatory or communal areas are shared and where the persons sharing are not "residing with" each other. In the present case there are the additional facts, which may be said to support a finding they were "residing with" each other, that (a)(as recorded in the second paragraph of the Statement of Reasons) the Claimant and her sister sometimes shopped and cooked for each other and (b) they were of course sisters and (c) they had previously lived in the maisonette with their mother.
21. However, the Claimant has asserted that she and her sister lived as "independent households." It is possible for two persons to be sharing accommodation such as a kitchen and living room but not to be members of the same "household". I do not think it right to express any concluded view on whether the expression "resides with", in regulation 3, necessarily has the same meaning as "is a member of the same household as", which may be a somewhat narrower expression. I strongly suspect that, given that the Claimant and her sister were apparently on good terms, and that there appears to have been some degree of co-operation in relation to matters such as cooking and shopping, the Claimant will find it impossible to persuade a new tribunal, after further evidence by the Claimant as to the manner in which they lived in the maisonette, that they were not "residing with" each other, giving that expression its ordinary meaning. But I think that she should at least be given the opportunity to do so.
22. The Claimant is right in saying that, had she been living in the same circumstances in the house of a person other than a close relative, she would have been entitled to the severe disability premium. That is simply because that person would not have been within the definition of a "non-dependant" in reg. 3 of the 1987 Regulations because her (or she) would have been specifically excluded from the definition by reg. 3(2A)(b) (which does not exclude "close relatives")
23. As regards the position when the Claimant was living in a hostel, it may be that a large number of people (the Claimant says that there were about 20 in her hostel) sharing a hostel (including kitchen and a living room) would not be considered to be "residing with" each other. That seems to me to be different situation from one in which only two persons (in this case close relatives) share kitchen and living room, and sometimes cook and shop for each other. Further, as the Secretary of State in his submission in this appeal rightly points out, reg. 3(4) specifically provides that persons are not "residing with" each other for the purposes of the definition of "non-dependant" if each is separately liable to make payments to a landlord. I imagine that that may well have been the position in relation to the Claimant's hostel.
24. The Claimant is further right in submitting that the definition of "non-dependant" specifically excludes "any member of the claimant's family" (see regulation 3(2)(a)). However, that does not assist her because, by section 137(1) of the Social Security Contributions and Benefits Act 1992, "family" is defined in terms which are not capable of including the Claimant's sister.

The contentions based on the Human Rights Convention

25. The Claimant only needs to rely on the Human Rights Act 1998 if it is found by the new tribunal that she is "residing with" her sister and is therefore not entitled to the SDP. The remainder of this decision is therefore based on the footing that the new tribunal will so find.

Article 6

25. The Claimant contends that she has not had access to the precise terms of the legislation which was applicable to her situation. In particular, she says that a copy of the relevant legislation was not supplied with the Secretary of State's submission to the Tribunal, or subsequently. As I am setting aside the Tribunal's decision on other grounds, it matters not whether the Tribunal's decision could also have been set aside on this ground. The Tribunal's Statement of Reasons, dated 20 April 2005, referred to the crucial regulation 3 of and paragraph 13 of Schedule 2 to the Income Support (General) Regulations 1987, and set out extracts therefrom. I consider that the Claimant has had ample opportunity since then to obtain the full terms of those provisions, had she wished to do so. Further, the Secretary of State's submission in this appeal, dated 18 July 2005, set out all the material terms of reg. 3. In my judgment the Claimant has had ample opportunity, in this appeal, to make submissions on the basis of the applicable legislation.

Article 5

26. In my judgment, even if it be assumed that the lack of entitlement to the SDP would in practice compel the Claimant to seek accommodation elsewhere and that she would feel less secure in that other accommodation, the provisions having the effect of excluding entitlement to SDP where a claimant is living with a close relative cannot possibly be said to be in breach of Article 5, which is concerned with matters such as deprivation of liberty by detention. It is not concerned with the effect of social security benefits not being available in particular situations. Nor do the facts of the present case "fall within the ambit of", or "engage" Article 5, for the purposes of Article 14.

Article 8

27. In my judgment it cannot be said that the non-entitlement to SDP constitutes a breach of the Claimant's "right to respect for [her] private and family life, [her] home and [her] correspondence." Nor, for the purpose of Article 14 of the Convention, is Article 8 "engaged" in this situation. Those propositions in my judgment emerge from the following passages in the judgment of Laws LJ in R (Carson) v Secretary of State [2003] 3 All ER at 590-1 (which are unaffected by the judgment of the House of Lords on appeal in that case):

26. "…..on the Strasbourg learning art 8 does not require the state to provide a home: see Chapman v UK (2001) 10 BHRC 48 at 72 (para 99); nor does it impose any positive obligation to provide financial assistance to support a person's family life or to ensure that individuals may enjoy family life to the full or in any particular manner: see Vaughan v UK App no 12639/87 (12 December 1987, unreported), Anderson and Kullmann v Sweden (1986) 46 DR 251, Petrovic v Austria (2001) 33 EHRR 307 at 319 (para 26).

28. In the present case I am clear that the provision of jobseeker's allowance and income support has not been made by the United Kingdom legislature and executive out of compliance with any actual or perceived positive obligation arising under art. 8. Such positive obligations may arise where there is a "direct and immediate link between the measures sought by an applicant and the latter's private and/or family life": see Botta v Italy (1998) 4 BHRC 81 at 88 (para. 34). Recognised instances include circumstances where the criminal law is required to offer protection for family life against particular dangers (see again Botta v Italy (at 88 (para 34)). But they cannot, in my judgment, extend to include whole swathes of a state's social security system without embracing that system within the general duty vouchsafed by art 8. That, however, would be contrary to the learning to which I have referred in [26], above."

Article 1 of Protocol 1

28. This provides as follows:

"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."

29. The Secretary of State accepts, for the purposes of this appeal and in the light of the recent admissibility decisions of the European Court of Human Rights in Stec and Others v United Kingdom (Application nos. 65731/01 and 65900/01) that income support is a "possession", and thus that Article 1 of Protocol 1 is "engaged" for the purposes of Article 14. However, there cannot in my judgment have been a breach of Article 1 of Protocol 1, taken on its own. The Claimant appears not to have been in receipt of the SDP during the period of nearly two years before the decision under appeal to the Tribunal, when she was living in the maisonette with her mother and sister. (She was, however, apparently in receipt of it during the period before that when she was living in hostel accommodation). In my judgment the Claimant cannot have been "deprived" of a "possession" (i.e. the SDP) of which she had not been in receipt for a period of nearly two years before the decision under appeal. Article 1 of Protocol 1 applies only to a person's existing possessions: it does not guarantee a right to acquire possessions: see, again, R (Carson) v Secretary of State [2003] 3 All ER 577 at paras 17 to 23, and the authority there cited.
30. The Claimant says that SDP was wrongly removed when she was living with her mother, but that is not a point which she can make in relation to the decision under appeal to the Tribunal. The Claimant could not have relied on Article 1 of Protocol 1 even in relation to the decision (which I assume there must have been) removing entitlement to the SDP when she went to live with her mother: a decision, in accordance with the terms of the legislation, that a person is entitled to a reduced amount of income support because the conditions of entitlement to a premium are no longer satisfied does not constitute deprivation of a possession. It is a decision, in accordance with the legislation defining the amount of the "possession", that there is no longer entitlement to it. The legislation defines when there is entitlement to the SDP, but does not purport to deprive a claimant of an entitlement to it. The Claimant argues that she was awarded the SDP for life. However, that would not have been so: she would have been awarded an amount of income support which included the SDP for an indefinite period, and therefore subject to removal if and when she ceased to be entitled to it.

Article 14

31. Article 14 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."

32. As noted above, the Secretary of State accepts that, for the purposes of Article 14, the entitlement to SDP falls within the ambit of Article 1 of Protocol 1. The Claimant's contention is that she has been discriminated against in relation to entitlement to SDP in that if she had been living in the house of and paying rent to a stranger, she would have been entitled to SDP. For the purposes of Article 14, the same point can perhaps be better put in this way: a severely disabled claimant living with and paying rent on a commercial basis to someone other than a close relative would be entitled to SDP, because the person with whom the claimant was living would fall within the exception from the definition of "non-dependant" contained in regulation 3(2A)(b) of the 1987 Regulations. The Claimant argues that she has therefore been discriminated against, by reason of her relationship with her sister, which she contends falls within the word "birth", or if not then within the words "or other status", at the end of Article 14.
33. The argument on behalf of the Secretary of State is that there is no discrimination because the close relationship between the Claimant and her sister means that the Claimant, on the one hand, and some person not so related, on the other, are not in an analagous position, and (which is essentially the same point) because the fact of the close relationship provides an objective justification for the difference in treatment. The argument is put as follows in the Secretary of State's written submission:

"If there is considered to be prima facie discrimination within the meaning of Article 14 it is submitted that such discrimination is objectively justified. The Secretary of State considers that the basis for this is that the SDP is intended for those severely disabled people who live independently and are therefore most likely to need to purchase care. This ensures that the greatest support is directed to the most vulnerable of those claimants who are disabled.

A distinction is drawn between close relatives and others who may normally reside with a severely disabled customer for the test of whether the SDP is payable. It is submitted that this apparent discrimination against close relatives is objectively justified in that there is an intrinsic difference in relationship between "close relatives" and "others". It is further submitted that it is not unreasonable to view someone living with a close relative as not living independently or to expect a close relative to provide care and assistance with domestic chores that would not be expected of non-close or non relatives without additional monetary compensation through the SDP."

34. Examination of the background to the inclusion of the provision specifically relating to close relatives bears out that that was indeed the reason for the provision. Much useful background information appears from the Report by the Social Security Advisory Committee in relation to the Income Support (General) Amendment No. 6 Regulations 1991 (SI No 2334) (Command Paper No. 1694)("the SSAC Report"). Those Regulations introduced the provision relating to close relatives.
35. Before the introduction of income support in April 1988 severely disabled people in receipt of supplementary benefit were able to apply for a weekly "additional requirement" to help with payment towards what was termed domestic assistance. The amount paid in May 1987 averaged £4.87 per week, but a few people had substantial weekly additions of around £40 a week. (Para. 12 of the SSAC Report).
36. The parliamentary history behind the inclusion in the original income support legislation of provision for the SDP is traced in the speech of Lord Bridge in CAO v Foster [1993] 1 All ER 705 at pages 715-7. After a House of Lords amendment, the minister (Mr. Newton) said in the House of Commons: "it will be paid as an extra amount to severely disabled people who are living on their own, and who are most likely to need extra support and care……….The present domestic assistance addition already has a condition that there must be no one in the household capable of carrying out normal domestic duties. The purpose behind that rule, on the need for extra support to maintain independence that cannot otherwise be provided, is a sensible one. …………."
37. Regulation 3 of the 1987 Regulations, as originally enacted, did not contain an exception from the definition of the "non-dependant" equivalent to the present 3(2A)(b) (i.e. in respect of a landlord living on the premises). However, such an exception was introduced, along with a number of similar exceptions, with effect from 1 October 1990, by the Income Support (General) Amendment No. 3 Regulations 1990. Those exceptions, when originally introduced, applied even to close relatives. The exclusion, from those exceptions, of the position where the otherwise excepted person (e.g. landlord) was a close relative was introduced with effect from 11 November 1991 by the Income Support (General) Amendment No. 6 Regulations 1991, which was the legislation on which the SSAC commented in their Report.
38. The purpose of the amendment in relation to close relatives was described in a Note from the DSS to the SSAC, annexed to the SSAC Report, from which I would set out the following extracts:

"It was never intended that the premium should be paid where the disabled person was living with close relatives in a normal family situation. This was made clear in a Parliamentary answer on 2 March 1987 when the then Minister for the Disabled (Mr. Major) said:

"In deciding whether or not someone was to be regarded as a non-dependant, either for housing benefit purposes or in order to determine eligibility for the SDP, it would be necessary to establish whether he or she was a member of the same household as the claimant. Where they did not reside together because, for example, one was a sub-tenant, living in self-contained accommodation (including separate cooking but not necessarily separate bathroom facilities) they would not be regarded as being members of the same household, and one would not therefore be classified as non-dependant in relation to the other. Where they did reside together, as might, for example, be the case with a lodger, they would normally be treated as members of the same household unless the arrangement between them was on a purely commercial basis and they were not close relatives.

There is increasing evidence that parents, who have hitherto provided, for example, a mentally handicapped adult offspring with a home, are seeking to establish a joint tenancy with their offspring, or issuing them with a licence on a "commercial" basis, with the specific intention of securing the severe disability premium.

The proposed amendment is designed to put beyond doubt that the severe disability premium is available to people, such as supported lodgers, who are liable to make payments on a commercial basis to another person living on the premises but not people who are making such payments to a close relative."

39. The SSAC concluded (para. 21 of their Report):

"The issue we must consider here is whether the original policy intention would be restored by this amendment: on balance we believe it would."

but continued in paras. 26 and 27 as follows:

"26. We are also concerned that, as drafted, the regulation makes an assumption that relatives living in the same premises are always able to provide the care which the severe disability premium would otherwise be used to purchase. It is our opinion that the regulation should distinguish between those cases where the relatives or friends are in a position to provide the care which the Department believes should be the case, and those where, because of the age or infirmity of the relatives or friends, this is not a realistic possibility. The regulations already recognise that a relative under 18 or in receipt of attendance allowance cannot be expected to provide care.

27. However, we have doubts and concerns about the operational difficulties of identifying these cases so that these provisions work efficiently and fairly. It is clear that the amount of care which such people need and which relatives are able to provide may fluctuate over time and needs regular review. Any policy which cannot operate sensitively in this matter is bound to fail. We have not been able, within this consultation period, to devote the necessary time required to consider the many complex features which would be required to ensure that such cases are properly identified. We take the view that it is essential that there should be some provision for those families who are simply unable to provide the care required by the severely disabled person. We make no recommendations in respect of these regulations but will pursue the matter in our later report."

40. The above background fleshes out the following comments of Lord Slynn in Bate v CAO [1996] 2 All ER at p.798 as to the reason for SDP not being payable where there is a "non-dependant" living in the premises:

"The scheme of the legislation as I see it is that if a claimant has to make arrangements to enable him to deal with his disability (not just to be housed) then the premium is payable, but that if someone is living with him and able to look after him (or who may be assumed to be likely to look after him) then the premium is not payable."

41. The Claimant objects that the legislation assumes that close relatives will be willing to provide domestic assistance, which may not be the case, and indeed may in practice force them into a position of providing that assistance when they have no wish to do so. However, as the SSAC recognised, it would be impracticable to make entitlement depend on whether the close relative does in fact provide domestic assistance.
42. The ground of the alleged discrimination, namely the Claimant's relationship with her sister, is not within the category of "particularly sensitive grounds" (such as race, gender, or religion) which will require "very weighty reasons" to justify any discrimination. (See R (Carson) v. Secretary of State [2005] 4 All ER 545 at [15] to [17] (Lord Hoffmann) and [55] to [60] (Lord Walker). The alleged ground of discrimination is within the (second) category of less sensitive grounds which "merely require some rational justification" (Lord Hoffmann at para. [15]. Further, "decisions about the general public interest which underpin differences in treatment in the second category are very much a matter for the democratically elected branches of government" (Lord Hoffmann at para. 16). It is appropriate to refer in this context to the frequently cited statement by Lord Hope of Craighead in R v DPP ex parte Kebilene [2000] AC 326 at 381B-D:

"In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention ….The area in which these choices may arise is conveniently and appropriately described as the "discretionary area of judgment." It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection."

Conclusion in relation to Article 14

43. In my judgment it is clear that the reason for the provision excepting persons living with and paying rent on a commercial basis to a close relative from entitlement to the SDP is that it is assumed that such a relative will in practice be likely to provide some assistance to the claimant and thus render it unnecessary, or less necessary, for the claimant to purchase outside assistance. That is a perfectly rational justification for the exception. It may be that in some cases relatives other than close relatives, or persons who are not relatives at all, would be willing to provide such assistance, but it is for the legislature to determine how to define the category of cases in which in considers that such assistance is in fact likely to provided, and the choice which it has made is perfectly rational. The legislature has clearly taken the view that it would be impracticable, and undesirable, to attempt to define the conditions of entitlement by reference to whether such assistance is actually provided by the close relative. That, again, was a matter for it, and its decision was perfectly rational. In my judgment, therefore, (and it does not really matter which way one puts it), the Claimant is not in an analogous position with persons living with a landlord who is not a close relative, so that there is no prima facie discrimination for the purposes of Article 14; alternatively, any such discrimination is objectively justified, and so not in breach of Article 14.

Disposal

44. I therefore set aside the Tribunal's decision and remit the matter for redetermination by a differently constituted appeal tribunal. The only issue for determination by the new tribunal will be whether the Claimant was at the material time "residing with" her sister, giving that expression its ordinary meaning (see paragraph 10 to 21 above). For the reasons set out above, the new tribunal will proceed on the footing that the relevant provisions of the legislation relating to the DWP are not in breach of the Convention.

(signed on the original) Charles Turnbull

Commissioner

17 March 2006