Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

The claimant's appeal to the Upper Tribunal is disallowed. The decision of the Bexleyheath First-tier Tribunal dated 23 September 2010 did not involve any error on a point of law that justifies setting it aside, and therefore stands.

REASONS FOR DECISION

1. The tribunal was concerned with two decisions notified by the local authority in one letter dated 11 November 2009. Those were that the claimant was entitled to housing benefit and to council tax benefit in respect of 1 R Close from 9 November 2009. By implication those decisions disallowed benefit for the period from 26 October 2009, when the claimant’s tenancy of that property and his liability to pay rent commenced, to 8 November 2009. The explanation given in another letter of the same date was that the claimant did not qualify for benefit on two homes.

2. The crucial provision in relation to housing benefit is regulation 7(8)(c) of the Housing Benefit Regulations 2006:

“(8) Where--

(a)   a person has moved into a dwelling and was liable to make payments in respect of that dwelling before moving in; and

(b)  [conditions satisfied in present case]; and

(c)   the delay in moving into the dwelling in respect of which there was liability to make payments before moving in was reasonable and—

(i)              that delay was necessary in order to adapt the dwelling to meet the disablement needs of that person or any member of his family; or

(ii)            [not applicable]; or

(iii)          [not applicable],

the person shall be treated as occupying the dwelling as his home for any period not exceeding 4 weeks immediately prior to the date on which he moved into the dwelling and in respect of which he was liable to make payments.”

If those conditions are met the test in section 130(1)(a) of the Social Security Contributions and Benefits Act 1992 of liability to make payments in respect of a dwelling which the claimant occupies as his home is met for the days in question regardless of his not actually occupying that dwelling or of his occupying another dwelling. The rule in regulation 7(1) that a claimant can only be treated as occupying one dwelling as his home at any time, being subject to the later provisions of regulation 7, does not apply.

3. The general circumstances, as well as the reasoning, were clearly and helpfully set out as follows in the First-tier Tribunal’s statement of reasons (although the claimant’s representative has challenged the accuracy of the statement in a few respects that I am content to adopt and note below):

“1. [The claimant] is seriously disabled and requires kidney dialysis three times a week. He has been living in damp accommodation at 129 [D Road]. But this made it impossible for him to receive home dialysis and he was offered new accommodation on 21 October 2009. It was a condition of that offer that he accept it straight away and that his tenancy commenced on 26 October 2009, which he accepted.

 2. [The claimant] did not move in to his new home until 8 November 2009. There were three reasons for the delay. First, because of his dialysis schedule the only day on which it was possible for [the claimant] to move was Sunday, the day on which he felt strongest. Second, it was necessary for him to arrange for the removal of his furniture and belongings, which could not take place straight away. Thirdly, it was necessary for the new flat to be redecorated as it had been left in a dirty condition by its previous occupier; [the claimant] needed accommodation which was in very good condition, and easy to keep clean, because of his need to avoid infection and to make it possible for him to have home dialysis. It took time to arrange the decorator to attend and the work itself was carried out throughout the week beginning Monday 2 [November].

 3. I am satisfied that [the claimant’s] disability made it necessary for him to wait until the flat had been redecorated before moving in. As a result, even if other factors had not made a short delay necessary, he would not have been able to move until the end of the week of 2 [November].

 4. It is accepted by the [local authority] that [the claimant] could not have avoided a rental liability for both properties from 23 October 2009 until he moved in on 8 November 2009 and returned his keys to his old flat on 9 November 2009.

 5. To be entitled to Housing Benefit on both dwellings, [the claimant] must bring himself with regulation 7(8) [the provisions of which were then summarised].

 6. I am satisfied that each of the conditions in [sub-paragraphs (a), (b) and the beginning of sub-paragraph (c)] is met in this case. The final condition, that the delay was necessary in order to adapt the dwelling to meet the disablement needs of [the claimant], gives rise to the issue on which this appeal turns.

 7. Without authority, I would have seen a strong argument that works of decoration to a flat, made necessary by a person’s disability, could amount to `adapt[ing] the dwelling’. To adapt can mean to make fit, to change or modify to suit a purpose. What, in any individual case, will amount to adapting a dwelling to meet the disablement needs of a person will depend very much on the nature of those needs. Adapting a dwelling need not, in my opinion, involve works of any particular type, and specifically need not involve any physical interference with the structure of the dwelling, or any physical addition to it. Provided the result of the process which the dwelling has undergone is that it has been changed to make it more suitable for the needs of the disabled person, it can fairly be said to have been adapted. I would exclude the provision of carpets or curtains or furnishings, since these do not change the dwelling itself, but I would have been prepared to accept that redecoration, especially where it makes the surfaces easier to clean and more hygienic, could amount to adapting the dwelling.

 8. However, two decisions of Commissioner May QC have been cited (CSH/149/2006 and CH/1363/2006) in both of which he held that redecoration did not involve a sufficient change `to the fabric or structure of the dwelling’ to qualify as adapting it. I am bound by those decisions, and I am unable to distinguish CSH/149/2006 which involved very similar facts to the present case.

 9. Accordingly I find that the work done to [the claimant’s] new flat before he moved in, and which made the delay in moving necessary, was not work to adapt his flat to his disablement needs and cannot bring him within regulation 7(8) of the Housing Benefit Regulations 2006. The appeal is therefore dismissed.”

4. Mr Hugh Lansdowne, who has represented the claimant with great industry and determination throughout, has pointed out, in relation to paragraph 1 of the statement of reasons, that the primary reason for the claimant’s previous accommodation being unsuitable was the serious risk of infection, which had led to hospital admissions. I am content to accept that that was so and that in view of the claimant’s condition the consequences of developing an infection could be particularly dangerous. But I do not think that that makes any material difference, because the unsuitability of the previous accommodation was not an issue and the tribunal accepted that it was necessary for the new accommodation to be decorated before the claimant could safely move in.

5. A salaried tribunal judge gave the claimant permission to appeal. The notice of appeal argued that the Commissioners’ decisions by which the First-tier Tribunal had considered itself bound were wrongly decided and that the interpretation of “adapt the dwelling” adopted in those decisions discriminated against disabled people contrary to article 14 of the European Convention on Human Rights (the ECHR) in conjunction with article 8 (right to respect for the private and family life) and/or article 1 of Protocol 1 (protection of property). Mr Lansdowne had raised the human rights argument in written submissions to the First-tier Tribunal, and it was briefly noted in the record of proceedings (page 85). The Secretary of State for Work and Pensions accepted my invitation to become a party to the proceedings. The submission of 5 July 2011 on behalf of the Secretary of State not having supported the appeal and the local authority having taken no effective part in the process, I directed that there was to be an oral hearing of the appeal.

6. The hearing took place on 16 November 2011 at Field House. The claimant was unable to attend because of illness, but was represented by Mr Lansdowne. The Secretary of State was represented by Anna Powick of DWP Legal Services. The local authority was not represented. Because Ms Powick had produced a number of human rights authorities on the day of the hearing I gave Mr Lansdowne the opportunity to make a further written submission in response. There was no need to seek any reply from the Secretary of State, as set out in a direction dated 19 December 2011. However, it then came to my attention that the decision of Judge Howell QC in IB v Birmingham City Council and others (HB) [2011] UKUT 23 (AAC), one of the decisions relied on by Ms Powick, was under appeal to the Court of Appeal and was due to be heard on 22 March 2012 under the name of Burnip. Accordingly, I deferred the making of a decision in the present case until after the Court of Appeal had given judgment. The Court of Appeal allowed the appeals of the claimants in Burnip and associated cases on 15 May 2012 (Burnip v Birmingham City Council and another [2012] EWCA Civ 629). Mr Lansdowne immediately asked for permission to make a further submission, which I gave in a direction dated 17 May 2012 (issued on 12 June 2012), requiring him also to deal with the relevance and effect of the judgment of the Supreme Court in Humphreys v The Commissioners for Her Majesty’s Revenue and Customs [2012] UKSC 18, [2012] 1 WLR 1545, given on 16 May 2012. Mr Lansdowne’s submission was received on 12 July 2012 and sent to the other parties for comment as directed. There had been no expectation of a reply from the local authority, but unfortunately the file then sat in an administrative limbo for some time before it was confirmed that the Secretary of State had no comments to make. The subsequent delay is my responsibility, as I had been considering whether to defer a decision further to await the outcome of the appeal to the Supreme Court by the Secretary of State in Burnip, for which permission was granted by the Supreme Court on 30 October 2012. For the reasons explained below I have decided that that is not necessary.

The interpretation of regulation 7(8)(c) in general

7. This must be approached through the existing decisions. That is in particular because CSH/149/2006 has the status of a reported decision, under the reference R(H) 4/07. As such it must have been regarded as rightly decided by at least a majority of the Social Security Commissioners at the time. For that reason and because of the desirability of certainty about the legal position, under the authority of decision R(I) 12/75 an individual judge of the Upper Tribunal should not depart from the legal principles for which R(H) 4/07 stands unless satisfied that to do so would perpetuate error. Indeed, in Bury Metropolitan Borough Council v CD (HB) [2011] UKUT 43 (AAC) Judge Jacobs very shortly rejected arguments for a more expansive interpretation of regulation 7(8) for just that reason, without troubling to analyse the reasoning behind the arguments put forward. Therefore, I look first at the arguments made by Mr Lansdowne apart from human rights, then separately at his human rights points. It seem to me that, if an inconsistency with article 14 of the ECHR were made out, that would supply a good reason for not following R(H) 4/07, because that point had not been considered in that or in any of the earlier decisions.

8. I should mention a couple of other decisions before getting to R(H) 4/07. The first is CH/3857/2004, a decision of Mr Commissioner Henty. I would not regard that as in itself standing in the way of whatever I considered to be the proper meaning of “adapt the dwelling” because the reason why the appeal tribunal’s decision there was overturned was that the works were not carried out to meet the disablement needs of the claimant, but were necessary for any claimant.

9. The second decision is CH/1363/2006, mentioned by the tribunal of 23 September 2010. That is of more importance, because Mr Commissioner May QC relied on his decision in that case in R(H) 4/07. The claimant there had chronic schizophrenia and was moving into an unfurnished flat. There was a delay in moving in while he applied for a social fund community care grant for furniture and household items. The appeal tribunal accepted evidence that he needed to have the flat carpeted, as well as furnished and put in order, before he moved in, to avoid a deleterious effect on his mental health and found the predecessor of regulation 7(8)(c)(i) satisfied. In allowing the local authority’s appeal, the Commissioner said this in paragraph 7:

“Adaptation of a property to meet disablement needs would, in my view, require more than furnishing it, carpeting it and putting it in order. It is clear to me that what the legislation has in mind would be such provision as fixed handrails, raised lavatories, widened doors and alterations to the structure of the building to meet a disablement need. The claimant, through his representative seeks to widen the scope of the regulation beyond what it was intended to bear. The provision of furnishings and carpeting may render a building habitable and more congenial to live in. What it does not do is alter, change or add to the structure or fabric. I am satisfied that a change to the fabric or structure of the building is necessary, not simply the placing of furnishing or carpeting within it in order to adapt it. I accept that the statutory provisions are directed to `the disablement needs of that person’ not `someone’ but it is the scope of the word `adapt’ which is crucial in the context of the disablement needs of `that person’. If what was done was not encompassed by the word `adapt’ then the claimant cannot succeed. That is the position in this case.”

10. It is to be noted, first, that CH/1363/2006 did not involve internal painting or other redecorations and, second, that Mr Commissioner May referred to changes to the “fabric” of the property, that could possibly have been interpreted as including redecoration. Thus I would not regard the decision in itself as standing for more than the exclusion of the provision of furniture or carpets (or at least carpet not of any specialised kind related to disablement needs) from the meaning of “adapt the dwelling” by reference to a rather broad principle relating to the fabric or structure. It is also to be noted that there would appear to have been an argument that the predecessor of regulation 7(8)(c)(ii) applied (move delayed pending the outcome of an application for a social fund payment in connection with the move or setting up home). The application of regulation 7(8)(c)(ii) is limited to certain categories of person, but the claimant’s longstanding health problem might have been thought to have brought him within them. That might throw some slight doubt on the outcome in CH/1363/2006, but regardless of that, the treatment of redecoration remained to be decided.

11. The decision in R(H) 4/07, and the associated case of CSH/150/2006, therefore broke new ground. In R(H) 4/07 the claimant suffered from anxiety and depression and was moving to a self-contained flat as the culmination of process towards living independently. The appeal tribunal accepted that if the flat had not been painted, wallpapered and carpeted and adapted to provide a clean living environment it was likely that the move to independent living would not have been successful. In resisting the local authority’s appeal, supported in the end by the Secretary of State, the claimant’s representative submitted that Mr Commissioner May had been wrong in paragraph 7 of CH/1363/2006 to adopt any meaning narrower than making the new place suitable for the claimant’s disablement needs and that the proper meaning was wide enough to cover carpeting and redecoration. The Commissioner was not persuaded and said this in paragraph 11:

“I simply cannot accept that redecoration and furnishing in the form of carpeting constitutes adapting the dwelling for the reasons which I have set out in paragraph 7 of CH/1363/2006. I consider that the basis upon which [the claimant’s representative] submitted I should not follow my own decision by virtue of using the word `adaptation’ instead of `adapt’ and `building’ instead of `dwelling’ is a semantic distinction which is not material to the essence of the decision I have made.”

12. There was thus no real discussion of how, if the principles stated in paragraph 7 of CH/1363/2006 were accepted, painting and wallpapering were to be regarded in relation to altering the fabric of the dwelling. Counsel for the local authority had relied on CH/3857/2004 to support his submission that they did not count, but there was no further discussion of redecoration that went beyond what would have been done by any new tenant. Nonetheless, there was a very clear conclusion expressed, extending to redecoration as well as to carpeting, that has been endorsed as correct in law by the selection of the decision for reporting as R(H) 4/07.

13. Mr Lansdowne submitted that there was no rational basis for the approach approved in R(H) 4/07, which he suggested rested on a limited and out-of-date image of the disabled as people in wheelchairs. A recognition of the wide range of physical and mental disabilities that could be adversely affected by the home environment would, he said, undermine what was no more than an unsupported assumption about what the legislation was aimed at. There would also be no danger of an opening of the floodgates by interpreting “adapt the dwelling” as “make the dwelling more suitable”. There was always the controlling test that the works had to be necessary to adapt the dwelling to meet the particular disablement needs, thus excluding works which would be done by any tenant, disabled or not. I would add that there is an additional, though related, controlling factor in that the need for the works to be done must make it necessary (reasonably required: Bury MBC v DC) to delay moving in. Although of course it is often much more convenient for works, including painting, wallpapering and carpeting to be done before moving into new accommodation, many such works (and especially those just mentioned) can be done after moving in, for disabled and non-disabled alike. If redecoration is the sole issue, there would still, on the principle argued for by Mr Lansdowne, need to be evidence that the claimant could not reasonably be expected to live in the accommodation in its unredecorated state for even a short period of time or while the work was going on. That was a condition that Mr Lansdowne submitted was satisfied in the present case, by virtue of the serious risk to the claimant from life-threatening infections.

14. There is plainly considerable force in those submissions. As indicated by the tribunal in the present case, it might well have taken that approach free of authority. So might I. However, after careful thought I have concluded that the submissions do not get to the threshold of satisfying me that R(H) 4/07 was wrongly decided, especially as that the same view has already been taken in Bury MBC v DC. There is an inherent uncertainty in the specific wording adopted in the housing benefit legislation. Mr Commissioner May’s interpretation is not an unreasonable one, and its reasonableness is not in my judgment undermined by the general factors put forward by Mr Lansdowne. The Commissioner would inevitably have been aware of those factors, from his long experience of dealing with claims involving all sorts of disabilities

15. Mr Lansdowne did put forward some other factors that he said had not been considered at all in the earlier case-law. Thus, he submitted, works of the kind suggested by Mr Commissioner May as examples would take a great deal longer than four weeks to commission and carry out once a new tenancy was granted, so that regulation 7(8) must have been intended to apply to non-structural alterations that could realistically be carried out in that time. That argument does not work. The limitation to four weeks in the support given in paying housing benefit for a period before a claimant has moved in, during which by definition housing benefit (or housing costs in the calculation of another benefit) could continue to be paid, does not carry any implication about the expected length of time to be taken in carrying out adaptations. It is merely a limit in time on the amount of support to be given from public funds in such circumstances. Under regulation 7(8)(c)(ii), it might well take longer than four weeks for a social fund payment to be agreed and paid and the necessary expenditure made, but that limit is still applied. Similarly, I did not find that the material, interesting though it is, on disabled facilities grants under the Housing Grants, Construction and Regeneration Act 1996 and on the assistance available under other legislation helped in the interpretation of the specific terms of the specific legislation that is crucial in the present case. Under the 1996 Act grants are made available towards the cost of “works required for … the provision of facilities for disabled persons in dwellings” etc (section 1(1)(c). There is no requirement there or in section 23 (purposes for which disabled facilities grants may be given) that a dwelling must be altered. The use of the word “alteration”  in the Good Practice Guide issued by the Department for Communities and Local Government therefore throws no light on the interpretation of regulation 7(8)(c)(i). Neither of those factors indicates any flaw in the reasoning in R(H) 4/07.

16. I also bear in mind that regulation 7 has been amended a number of times since the giving of the decision in R(H) 4/07 and before the date of the decision in the present case, but not so as to amend the conditions in regulation 7(8)(c)(i).

17. Thus, subject to the human rights arguments discussed below, the meaning of regulation 7(8)(c)(i) must now be regarded as settled at the level of the Upper Tribunal. Any different interpretation could only be reached by a higher court.

The interpretation of regulation 7(8)(c)(i) and the Human Rights Act

18. As indicated above, if I concluded that the application of R(H) 4/07 in the present case was incompatible with an ECHR right of the claimant, that would be a good reason for not following that decision and for adopting a wider interpretation of regulation 7(8)(c)(i). That would entail concluding that the tribunal of 23 September 2010 had erred in law by adopting a wrong interpretation. Conversely, if I conclude that there is no such incompatibility, that would be a good reason for not setting the decision aside although the tribunal prima facie erred in law by failing to deal with the Human Rights Act arguments that had been put to it on behalf of the claimant.

19. I find that there is no such incompatibility. With all due respect to the wealth of case-law referred to by Mr Lansdowne, I can deal with the issues relatively shortly and without direct reference to the majority of the authorities cited by him and by Ms Powick for the Secretary of State. In so far as there is a difference of approach between the Court of Appeal in Burnip and the Supreme Court in Humphreys, I conclude that the outcome in the present case is the same whichever approach is applied. I can not see how the Supreme Court in Burnip could come to any conclusion that makes the establishment of justification under article 14 on discrimination even more difficult, rather than arguably easier as under Humphreys. Accordingly, it would not be right to defer the decision in the present case yet further to await the outcome in the Supreme Court. That is especially so as no date appears yet to have been fixed for the hearing of Burnip.

20. I am not entirely sure how far Mr Lansdowne relied on the proposition that if regulation 7(8)(c)(i) were interpreted in the way adopted above that would represent a direct breach of article 8 of the ECHR, which requires that there shall be no interference by a public authority with the exercise of the right to respect for a person’s private and family life, his home and correspondence except such as is in accordance with the law and is necessary in a democratic society in the interests of various widely drawn public policy objectives. Certainly at the oral hearing he disclaimed any submission that there was a direct contravention of article 8, instead relying on discrimination contrary to article 14, in conjunction with article 8 and/or article 1 of Protocol 1. On the other hand, he placed great stress on arguments that article 8 imposed positive obligations on the state to take positive measures to protect especially vulnerable groups (such as the severely disabled) from interference with their right to respect for private and family life and the home (as he put it, with the fundamental right to move from accommodation in which the claimant was exposed to the risk of life-threatening infection to accommodation that was put into a clean and hygienic condition). I think that, in the end, those arguments were mainly directed to a submission that article 8 was engaged though the expression in regulation 7(8)(c)(i) of respect for article 8 rights, so as to found a case on discrimination.

21. It would not be fair to hold Mr Lansdowne, who is not a lawyer, too strictly to the form of his submissions, especially when trying to distil the principles specifically relevant to the present case out of a confusing mass of decisions is a considerable challenge for anyone. However, in my judgment there is a fundamental factual obstacle to any claim by the claimant directly under article 8 that means that Mr Lansdowne was right in his approach. That is that there was in fact no interference with the claimant’s article 8 rights in the course of his move from his old unsuitable accommodation to his new accommodation. He accepted the new tenancy as soon as practicable. He moved in as soon as he would have been able to even if housing benefit could have paid to him retrospectively under regulation 7(8)(c)(i) after he had completed the move and the new accommodation became his home. He could not have arranged for the redecoration to be done any quicker and he could not have actually moved in until the Sunday following the completion of the redecoration. The claimant’s complaint is that he was not under regulation 7(8)(c)(i) allowed entitlement to housing benefit for the period from the beginning of the tenancy on 26 October 2009 to 8 November 2009. I cannot see how the decision to that effect made on 11 November 2009 in fact interfered in any way with the claimant’s ability to move home or the speed at which the process took place.

22. Accordingly, in my judgment the claimant’s case has to be based on the effect of article 14 on discrimination. I see no difficulty in accepting that another article was engaged so as to bring article 14 into play. Housing benefit or the particular rules in regulation 7(8) might engage article 8 through the right to respect for the claimant’s home or for his private life. Rather more straightforwardly, as recognised in Burnip (Maurice Kay LJ at paragraph 8), article 1 of Protocol 1 was engaged because, if the claimant had been awarded housing benefit for the new accommodation for the period in question, he would have had a possession within that article. That follows logically from the decision of the House of Lords in R (on the application of RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 AC 311, that article 1 of Protocol 1 was engaged by the conditions to qualify for the disability premium in the calculation of income support and the exclusion of the homeless from such qualification.

23. The first obstacle to the case for the claimant under article 14 is whether the difference in treatment between disabled claimants or members of their family who meet the conditions under regulation 7(8)(c)(i) as interpreted above and those who would meet the conditions on a wider interpretation could be said to be based on some “other status” or a “personal characteristic”. This is not a straightforward case of discrimination against the disabled (as in Burnip through the mechanism of a failure to treat significantly different categories differently) or against a group like homeless income support claimants (accepted after some discussion as a personal characteristic in RJM) or against claimants resident in certain countries or below a certain age (as in R (on the application of Carson v Secretary of State for Work and Pensions, R (on the application of Reynolds v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173). It is a case where there is a provision in favour, subject to conditions, of disabled housing benefit claimants that is said to contravene article 14 if interpreted so as to exclude certain other disabled claimants who do not meet those conditions. The difference of treatment cannot even be said to be based on type of disability or severity of disability. It is based on the type of works that would be necessary in order to make a claimant’s new accommodation suitable for the disablement needs of the claimant or a member of the family. If the works do not involve some change to the fabric or structure of the dwelling, the claimant does not qualify under regulation 7(8)(c)(i). That is at the very least dangerously close to offending against the principle stated by Lord Bingham in R (on the application of Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484 at [28] that a “personal characteristic” cannot be defined by the differential treatment of which a person complains (and see also Lord Hope at [47] and Baroness Hale at [55] to [63]). That statement of principle was mentioned without disapproval by Lord Neuberger in RJM at [46]. If it were necessary to do so, I would conclude that the article 14 case failed on that point. However, especially in case this appeal might go any further, I go on to consider other issues on the assumption that there was a difference of treatment on the ground of a personal characteristic under article 14. On that assumption I can see no doubt that the claimant here was in an analogous situation to a claimant who did meet the conditions of regulation 7(8)(c)(i).

24. The focus then turns to whether the Secretary of State can show that the difference in treatment can be justified. Mr Lansdowne submitted that “weighty reasons” would have to be given to achieve that result, relying in particular on what was said by Henderson J in Burnip at paragraphs 27 and 28:

“27. As the Grand Chamber explained in [Stec v United Kingdom [2006] EHRR 47] at paragraph 51, a difference of treatment lacks objective and reasonable justification `if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised’. With regard to the margin of appreciation enjoyed by a Contracting State, the Court went on to say at paragraph 52:

`The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is `manifestly without reasonable foundation’.’

 28. Relying on this and other similar statements of the Strasbourg court, and on the observations of Lord Walker in [RJM)], at paragraph 5, Mr Drabble QC submitted for the appellants that “very weighty reasons” would be needed to justify discrimination on grounds of congenital disability, which (like a person’s sex) is an innate and largely immutable characteristic, closely connected with an individual’s personality and life chances. While I would accept that congenital disabilities of the kind suffered by Mr Burnip, Ms Trengove and Mr Gorry’s daughters may in principle fall within the category of grounds for discrimination which can be justified only by very weighty reasons, I would nevertheless reject this submission for the same reasons that a similar submission was rejected by this Court in [AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634]: see paragraphs 15 to 16 of the judgment of Maurice Kay LJ, and paragraphs 61 to 62 of the judgment of Elias LJ. Weighty reasons may well be needed in a case of positive discrimination, but there is no good reason to impose a similarly high standard in cases of indirect discrimination, or cases where the discrimination lies in the failure to make an exception from a policy or criterion of general application, especially where questions of social policy are in issue. As in AM (Somalia), therefore, the proportionality review applicable in the present case must be made by reference to the usual standard, not an enhanced one.”

25. Mr Lansdowne naturally fixed on the sentence in paragraph 28 of Burnip stating that weighty reasons may well be needed in a case of positive discrimination, by which it is clear that Henderson J meant a case where the rule under scrutiny drew an express line on the disputed ground, as opposed to cases of indirect discrimination (where an apparently neutral rule had an disproportionate effect on a disadvantaged group) or of discrimination in the form of failing to make an exception from a general rule (as in Burnip and AM (Somalia)). He submitted that in the present case the discrimination alleged was in the form a rule which as interpreted drew an express line excluding those in the claimant’s situation. However, not only was it unnecessary for the Court of Appeal in Burnip to decide what principle applies in cases of “positive discrimination”, it also clear that Henderson J was referring only to cases of positive discrimination on the ground of a person’s disability. I also do not need to enter into the debate about whether the suggestions (no more) in AM (Somalia) and Burnip that discrimination expressly on the ground of disability might be added to the already recognised “suspect” grounds, like race, sex, nationality etc for which very weighty reasons are needed for justification. That is because the ground of discrimination on the basis assumed for present purposes is not disability or a disability of a particular kind in and of itself, but the consequences of disability on the kind of works necessary to make new accommodation suitable for the claimant. The rule under scrutiny is one that established a protection for the disabled and the argument is that it should be interpreted in a way that that does not discriminate against those disabled people who require works going beyond involving some change to the structure or fabric of the dwelling. That is much closer to the situation of seeking an exception from a policy or criterion of general application, where it is accepted that the “very weighty reasons” principle does not apply. What matters in my judgment is the substance of the issue rather than slotting a case into a particular classification of types of discrimination. In the present case the substance of the alleged discrimination is much too far away from the sort of situation being suggested as analogous to the “suspect” grounds to be subject to the same principle. Accordingly, I reject this aspect of Mr Lansdowne’s submission. Since the issue was not raised for decision in the circumstances of Burnip, I see no need to wait for the outcome of the appeal to the Supreme Court before reaching that conclusion.

26. That leaves the application of the ordinary approach to justification in cases involving social security benefits. In relation to that I can repeat what I said in paragraphs 52 and 53 of LH v Secretary of State for Work and Pensions (IB) [2012] UKUT 288 (AAC):

“52. In both Burnip and Humphreys there was express reliance on the explanation given by the European Court of Human Rights in paragraph 52 of Stec after stating at the end of paragraph 51 that a state enjoyed a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment:

[quotation of the extract in paragraph 24 above omitted]

In both cases there was also an acknowledgement that that test had been applied by the House of Lords in [RJM], which concerned the denial of income support disability premium to rough sleepers.

53. In Burnip, having rejected the submission that difference of treatment on the ground of disability required very weighty reasons for justification, Henderson J went on to express the conclusion (agreed with by the other members of the Court of Appeal) that justification had not been shown in terms that the “single bedroom rule” in housing benefit was not a fair or proportionate response to the discrimination that had been established. By contrast, in Humphreys, Lady Hale (with whom the other members of the Supreme Court agreed) at [19] stated that even in cases of sex discrimination the normally strict test for justification gives way to the “manifestly without reasonable foundation” test in the context of state benefits. At [20] she said that the real object of the complaint in Humphreys, about the “no-splitting” rule in child tax credit for parents to count as responsible for a child, was the discrimination between majority and minority shared carers and that, if that was regarded as a status, justification would turn on the “manifestly without reasonable foundation” test. She had also noted at [18] Lord Neuberger’s observation in RJM, at [56], that this was "an area where the court should be very slow to substitute its view for that of the executive, especially as the discrimination is not on one of the express, or primary grounds". However, at [22] Lady Hale also said that the justifications put forward for the rule in question required careful scrutiny and, after detailed consideration of the submissions and relevant factors, put her conclusion that the indirect sex discrimination in that case was justified in terms that the “no-splitting” rule was a reasonable rule for the state to adopt.”

27. I therefore went on to ask in that case whether the failure to treat the claimant differently from other in a different situation was manifestly without reasonable foundation. Having concluded that it was not, I also concluded that there would still have been justification if the question was asked in terms merely of whether that had been a fair or proportionate response. In so far as Henderson J suggested in paragraph 64 of Burnip that the reluctance to interfere with matters of policy expressed in AM (Somalia) did not extend to cases concerning the conditions of entitlement to a benefit designed to help people meet their basic human need for accommodation of an acceptable standard, that cannot in my judgment stand with the approach taken in RJM and Reynolds to income support (another means-tested subsistence benefit) and approved in Humphreys. It is possible of course that the Supreme Court in Burnip will take a different view, although I consider it most unlikely that it would conclude that the test for justification should be more difficult than suggested by Henderson J. Accordingly, I see no need to wait for the outcome of the appeal to the Supreme Court in relation to this issue either, as I reach the same conclusion on both of the approaches realistically on the table.

28. I find it quite impossible to conclude that it was either manifestly without reasonable foundation for the line under regulation 7(8)(c)(i) to be drawn in accordance with the interpretation adopted above or unfair, unreasonable or disproportionate to do so. There was a legitimate aim in providing a limited protection for the disabled who are prevented from moving into new accommodation until necessary works related to their disablement needs are carried out, without offering an open-ended incentive for the process to be strung out unnecessarily. It was reasonable and proportionate for the protection and for the potential payment of housing benefit on two homes simultaneously to be limited to a maximum of four weeks, recognising that the period reasonably involved in individual cases might exceed that limit. In my judgment it was also reasonable and proportionate to limit the protection to cases involving some work to the structure or fabric that might be expected to cause the sort of disruption that would mean that a disabled claimant could not reasonably be expected to live in the accommodation while the work was going on. By contrast, redecoration or laying flooring or installing furniture can often be done while an occupant is present. Again, that would be with a recognition that some deserving cases would be excluded under such a rule, but that the rule would cover cases with a strong expectation of qualification subject to the condition that the delay in moving was necessary. It seems to me well within the margin of appreciation allowed to the public authorities under either the ordinary test of objective and reasonable justification or under the “manifestly without reasonable foundation” test for the regulations to identify particular cases in which a claimant would be treated as having the new accommodation as home before moving in, rather than use a general test of a delay being unavoidable or reasonable, and for the particular protection for the disabled to be limited in the way identified above. The remarks of Lord Neuberger in RJM, at [18] about the view of the executive in making the rule under scrutiny in that case seem particularly apposite here also:

“The fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified.”

29. For those reasons I am satisfied that, on the assumption that the claimant’s case under article 14 of the ECHR has not already failed at the stage identified in paragraph 23 above, the difference of treatment of the claimant was objectively and reasonably justified, so that there was no contravention of article 14 of the ECHR. There is therefore no basis under section 3 of the Human Rights Act 1998 for requiring the interpretation of regulation 7(8)(c)(i) of the Housing Benefit Regulations 2006 to be wider than that adopted above. Accordingly, although the tribunal of 23 September 2010 erred in law in failing to deal with the human rights arguments put forward on behalf of the claimant, that error does not justify the setting aside of its decision in relation to housing benefit under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

Council tax benefit

30. There is some uncertainty about whether the claimant’s appeal to the First-tier Tribunal was only against the housing benefit decision issued on 11 November 2009 or was also against the council tax benefit decision notified in the same letter. His appeal form signed on 14 November 2009 identified the benefit involved as housing benefit and Mr Lansdowne’s letter of 14 December 2009, although headed “HB/CTB appeal decision 11/11/09”, dealt only with the housing benefit regulations until asking that full entitlement to housing benefit and council tax benefit be awarded from 26 October 2009. The local authority said nothing about council tax benefit in its written submission to the First-tier Tribunal. Mr Lansdowne said at the hearing on 23 September 2010 that the claimant had appealed against the council tax benefit decision and the tribunal disallowed such an appeal in its decision and confirmed the local authority’s decision of 11 November 2009. However, it said nothing about council tax benefit in giving reasons for its decision.

31. That is all rather unsatisfactory. It might be thought that the tribunal must have erred in law. Either the council tax benefit appeal was not before it, in which case it had no power to confirm the decision of 11 November 2009 in that respect, or it was before it, in which case it failed to give any explanation as to why the appeal failed. This is not a case where there is a simple read across from the Housing Benefit Regulations 2006 to the equivalent provisions in the Council Tax Benefit Regulations 2006. There is quite a complex relationship between the liability for council tax under sections 6(1) and (2) of the Local Government Finance Act 1992, either as a resident or as an owner if there is no resident, and qualification for council tax benefit under section 131(3)(a) of the Social Security Contributions and Benefits Act 1992 only for those liable to pay council tax who are residents of a dwelling.

32. I am just persuaded that Mr Lansdowne had done enough to show that there was an appeal before the tribunal of 23 September 2009 in relation to council tax benefit. However, I am not going to set aside the tribunal’s decision in that respect for the complete failure to give any reasons for disallowing the appeal or indeed for proceeding to make a decision without seeking the necessary evidence. That is because examination of the figures put forward by Mr Lansdowne in his submission of 30 November 2001 from the claimant’s council tax bill dated 13 November 2009 (page 187) shows that there was nothing wrong with the council tax benefit element of the calculation of that bill.

33. The bill showed the amount due as £452.29 for the period from 26 October 2009 to 31 March 2010. Then there was a deduction at the rate of 10% (£4.03) for the period from 26 October 2009 to 8 November 2009 labelled “Second Home Class A”. For the period from 9 November 2009 to 31 March 2010 there was a 25% reduction (£102.99) for having only one adult resident. Within the council tax benefit to 31 March 2010 being £308.97, that left an amount due to be paid by the claimant of £36.30. That amount is just about 90% of the full council tax liability for the period from 26 October 2009 to 8 November 2009. As I understand it (which is very far from reliably) the local authority’s classification of the new accommodation for that period under Class A meant that it regarded it as unoccupied, ie not anyone’s sole or main residence. The claimant’s liability for council tax in that period was therefore as an owner (which term can include a tenant). He was not liable as a resident, and therefore eligible for council tax benefit, until 9 November 2009. It thus seems to me that the claimant’s real challenge was to the imposition of liability for the period from 26 October 2009 to 8 November 2009 subject only to the 10% second home reduction or discount. Such a challenge would presumably be based on the argument that, until the claimant moved his furniture and other belongings in on Sunday 8 November 2009, the dwelling was unfurnished and should have been exempt from all liability instead of merely being subject to the 10% discount. I am not in a position to express any opinion at all about whether that argument holds water or whether it is now too late to challenge the liability for the period in question. Those are questions that Mr Lansdowne and the claimant may wish to consider if they have the energy to pursue the matter of £36 after all this time.

(Signed on original):  J Mesher

  Judge of the Upper Tribunal

Date: 16 January 2013