Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                 Appeal No: CH/738/2009

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge Wright

DECISION

            The Upper Tribunal dismisses the appeal of the appellant.

The decision of the First-tier Tribunal sitting at Reading on 26 November 2008 under reference 175/08/01680 did not involve an error on a material point of law and is not set aside. Its decision therefore stands.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007. 

REASONS FOR DECISION

1.                   In my decision in TD –v- SSWP and London Borough of Richmond-Upon-Thames (HB) [2013] UKUT 0642 (AAC) I held that although the provisions of regulation 20(2)(a) of the Housing Benefit Regulations 2006 indirectly discriminate against men where they have exactly equal shared care of children, such discrimination was justified and therefore the regulation was not contrary to Article 1 of Protocol 1 to the European Convention on Human Rights when read with Article 14 of that Convention.

2.                  This case also involves a challenge made by a father but possibly in the different context of where at the material time he was the “substantial minority” carer for his daughter.   I say ‘possibly’ because I am mindful that there is a dispute as to whether the First-tier Tribunal erred in law in finding that the appellant did not have exactly equally shared care of his daughter at the relevant time and instead was her minority carer (see pages 54, 132, 164-165 and 293). However, although the legal analysis differs depending on which of these factual scenarios was the true one, for the reasons given below it makes no difference in the end result and that is why I have concluded the First-tier Tribunal made no material error of law in the decision to which it came. 

3.                  In the light of my decision in TD on 3 January 2014 I gave directions giving the parties to this appeal the opportunity to comment as to TD’s application to this appeal. The second respondent has not made any reply. The Secretary of State replied, on 23 January 2014, and argued that TD should be applied to this appeal because although this appeal involves a substantial minority carer rather than the exactly equal shared care in TD this is not a materially distinguishing feature as any discrimination here is also justified. The appellant through her solicitors and counsel filed further submissions on 1 April 2014. These submissions argue that TD is not determinative of this appeal as the two cases are distinguishable from one another. They also seek to take a new point of construction on the Housing Benefit Regulations 2006. 

4.                  I do not accept the further submissions of the appellant and in consequence I dismiss the appeal on the basis that regulation 20 of the Housing Benefit Regulations 2006 was properly applied by the council in its decision on the appellant’s entitlement to housing benefit so as to exclude his daughter, in effect, from being a member of his ‘family’ for housing benefit purposes.

5.                  If it is the case that the appellant’s daughter spent an equal amount of time with him and her mother then this appeal is indistinguishable from TD and the child benefit deeming provision in regulation 20(2) of the Housing Benefit Regulations 2006 would apply.

6.                  On the other hand, if at the material time the appellant was the substantial minority carer for his daughter then a different analysis has to apply.  Judge Ponting’s decision in the First-tier Tribunal was based on it being clear that the appellant was the lesser carer of his daughter, and he then drew on Mr Commissioner (as he then was) Rowland’s decision in CFC/1537/1995, which concerned materially identical provisions in regulation 7 of the Family Credit Regulations 1987, and in which at paragraph 11 the Commissioner said:-    

“In the light of these considerations, I have come to the conclusion that a person has a child or young person normally living with him if that child or young person spends more time with him than with anyone else. That may not be the most natural construction of the phrase "normally living with" but it is the only one that makes sense when the regulation is read as a whole. Such a construction makes it clear why regulation 7(2) makes provision for cases where a child or young person spends equal amounts of time in different households. It also makes clear what is meant in regulation 7(2) by "a question". There is "a question as to which household he is living in" when that question cannot be resolved by the application of regulation 7(1) because it cannot be said where the child or young person spends most time because there is no established pattern. In some cases, it will be possible to apply regulation 7(1) even though the pattern of residence is highly irregular, because it is nonetheless clear where the child spends most time. It is only in cases of real doubt that regulation 7(2) applies. The mere fact that there is a factual dispute between, "say", a child's parents as to the amount of time the child spends with each of them is not enough to bring regulation 7(2) into play. Adjudication authorities must determine what the facts are and apply regulation 7(1) unless the facts reveal that the child does spend equal amounts of time in more than one household or that there is no established pattern of residence and it is for that reason impossible to apply regulation 7(1).”

7.                  Following CFC/1537/1995 it seems to me that if Judge Ponting’s factual premise (if I can call it that) as to the level of care provided by the appellant to his daughter in any given week was correct then his analysis of regulation 20 of the Housing Benefit Regulations was also correct, and, on that basis, regulation 20(2)(a) – and the receipt of child benefit deeming test for responsibility – did not come into play on the facts of this case.   The discrimination argument would then have to be configured (as the Secretary of State recognises – see paragraphs 8 and 11 on pages 164 and 165) on the basis that regulation 20(1) of the Housing Benefit Regulations 2006 when read with regulation 20(3) of those Regulations indirectly discriminates men as minority carers.                         

8.                 I note moreover that the Secretary of State accepts that regulation 20(1) does indirectly discriminate men as minority carers (paragraph 11 on page 165). I am inclined to the view that that concession is properly made in the light of the concession made as to adverse disparate impact in Humphreys and my analysis in paragraph 33-48 in TD. However, even if this a substantial minority carer case, I agree with the Secretary of State that the discrimination against men as minority cars caused by regulation 20(1) and (3) of the Housing Benefit Regulations 2006 is justified; although my main focus below is on the appellant’s case as an exactly equal carer for his daughter.

9.                  Despite the appellant’s further submissions of 1 April 2014, it seems to me that his appeal as he argues it is on all fours with TD on the discrimination issue: it too concerns an exactly equal shared care case where the mother of the child is not in receipt of housing benefit. Moreover, I remain of the view that the discriminatory effect of regulation 20(2)(a) of the Housing Benefit Regulations 2006 has a justification that is not manifestly without reasonable foundation, and that justification includes why the ‘bright line’ rule in that regulation does not allow for housing benefit to be awarded to one parent in a shared care case where the other parent is in receipt of child benefit but is said not to be claiming housing benefit: see, in particular  paragraphs 54 and 61-63 of TD.     

10.              Moreover, the analysis in TD was not based on consideration of the impact of the rule on a particular class of person (i.e. shared care fathers where the mother is not claiming housing benefit). As I said in the opening sentence of paragraph 63 in TD, the consideration was with whether the indirect discrimination against men as exactly equal carers caused by the ‘child benefit receipt’ rule in regulation 20(2)(a) was justified, and that class or pool of people discriminated against would include within it cases where the mother was not, or was alleged not to be, claiming housing benefit. 

11.               However that part of the general class or pool of those discriminated against by the child benefit linking in regulation 20(2)(a) is addressed in the justification considered in TD, albeit obliquely, at paragraph 61. Further, assessments as to whether the other carer was in receipt of housing benefit or not would not be straightforward and thus would give rise to additional costs and a likely delay in adjudication. This is because housing benefit is awarded by local authorities and not central government, and it would be difficult for one local authority to identify if the other carer was or was not in receipt of housing benefit.  That is likely to be a consideration of even greater force in relation to council tax benefit where no distinction arises between whether the other carer is in rented accommodation (and so may be claiming housing benefit) or owner occupied accommodation (where no such claim would lie).

12.              A separate factor that would remain relevant, even assuming against what is said above that identifying whether the other carer is not in receipt of housing benefit could be achieved easily, is the issue of apportionment addressed in paragraphs 56 and 60 of TD. I see no reason why the same considerations and concerns ought not to apply in the situation where the other carer is not in receipt of housing benefit.  The vice of the linking rule is that the appellant is assessed for housing benefit purposes as if his daughter is never living with him.  Removing that discrimination might then only require housing benefit to be paid for the period in any week when the appellant’s daughter was in fact living with him, which could then rise to difficult issues of adjudication as to how long that period was (i.e. if it was disputed that there was exactly equal shared care, (as may be the case here)).

13.              In all of these circumstances I do not consider that the UK State here drawing a bright line rule as to how a ‘family’ is to be defined for the purposes of calculating entitlement to housing benefit, in circumstances where some shared carers not in receipt of child benefit but who are the only one of the two carers seeking to claim housing benefit will fall on the wrong side of that rule, has been shown to be a rule manifestly without reasonable foundation. Nor do I consider that anything said by the Supreme Court in the context of the issues it was addressing in Bank Mellat –v- HM Treasury (No.2)  [2013] UKSC 39 modifies the approach to be taken to indirect discrimination in social security cases as laid down in Humphreys.

14.              If, alternatively, this is a substantial minority carer case, the discrimination against such carers is in my judgment justified for much the same reasons as I have given above and as I gave in TD.  Again, it is the effect of the regulation 20(1) and (3) in respect of substantial minority cares that has to be considered and not just those cases where the other carer for the child is, or may be, not claiming housing benefit (or council tax benefit).  A simple rule is needed to operate the housing  benefit system effectively and to ensure it is not tied down in potentially difficult and time consuming issues of adjudication such as whether the other carer is in receipt of housing benefit (or council tax benefit) or what the period of minority care is in fact in any given week. Moreover, per Humphreys, in general targeting the benefit at the household where the child lives more of the time (which in a substantial minority carer case will, by definition, be with the other carer), is likely to mean that such children are better off and so is a reasonable means of the UK state delivering one of its social policy objectives (relieving child poverty).                                                                                                      

15.               As for the new construction point sought to be advanced, it is in my judgement a bad one and is based on a misreading of what was decided by the High Court and the Court of Appeal in Swale. 

16.              The argument, as I understand it, is that Swale turned on whether the children were members of the claimant’s household (under what is now regulation 21 of the Housing Benefit Regulations 2006) and not whether he was responsible for them, and that on the facts of this case (because of the alleged lack of a competing claim for housing benefit by the other carer) whether the appellant’s daughter was a member of his household for the periods in any weeks when she was living with him was to be determined on the ordinary meaning of phrase “member of his household” and outwith the Housing Benefit Regulations 2006.

17.               However, on reading both court judgments in Swale it seems manifest to me that neither court focused exclusively on what is now regulation 7 or regulation 21 of the Housing Benefit Regulations 2006, and, more importantly, in both judgments the terms of what is now regulation 20 of the Housing Benefit Regulations 2006 played a central and decisive role.  I only need set out the relevant part of Lord Justice Potter’s judgement to show this (substituting references to the Housing Benefit Regulations 2006 for those of the Housing Benefit (General) Regulations 1987 where relevant).

“The judge [below] held that, in accordance with the intention revealed by its immediate heading, the purpose of regulation [7(1)] was to answer the question of which home a person occupies as a dwelling for the purposes of housing benefit. For that purpose it contemplates a two-stage process, first that of identifying the occupier and then identifying the occupier and his family. For the latter purpose family has the meaning ascribed to it by section 137(1) of the 1985 Act and thus includes a couple and a member of the same household for which one of them is responsible. In this case, in accordance with regulation [20] it was clear that the applicant's partner was responsible for the three children as the person receiving the child benefit in respect of them. Regulation [21] in turn made clear that the children were not to be treated as part of the applicant's household for the purposes of housing benefit since he was not responsible for them. Accordingly, the children were not occupiers of the applicant's home for the purposes of housing benefit and, in the application of the size criteria, they should not be taken into account.

I consider that the judge was correct in the conclusion to which he came.

The exercise performed by the Rent Officer under the 1995 Order is one performed pursuant to regulation 12A of the 1987 Regulations (as amended) which regulations are part of the housing benefit scheme. The term occupier is not defined in, or for the purpose of, the 1995 Order save as a person who is stated in the application for the determination to occupy the dwelling. It is thus apparent:

      (1) that in making his determination the Rent Officer does not decide, or indeed concern himself with deciding, who is or is not to be treated as an occupier for the purpose of applying the size criteria; his is an administrative exercise consequent upon an earlier decision by the local authority as to whether or not there are persons properly to be regarded as occupiers of the premises in addition to the claimant occupier himself.

      (2) As to the question whether or not such additional person has been wrongfully omitted, one must refer to the relevant provisions of the scheme as set out in statute and regulations. Unfortunately, the relevant provisions contain no definition of occupier simpliciter. The question at issue is thus whether (as Mr Drabble Q.C. contends), the word occupier should be accorded its straightforward meaning in the sense of any person (whether adult or child) who occupies the premises as a matter of fact or whether, as the judge concluded, the effect of regulations [20] and [21] of the [2006]Regulations is such that the child of a claimant for whom the claimant's former spouse or partner is responsible should be excluded from the definition of occupier for the purposes of the claimant's application for housing benefit.

In my view, the latter is the case.

A person is only entitled to claim housing benefit in respect of a dwelling which he occupies as his home…. [Regulation 7(1)of the [2006] Regulations sets out the basis on which he shall be treated as fulfilling that occupation requirement, i.e. occupation as his own home (if he has no family) or (if he has a family) by himself and his family. In the latter case, head (b) of the definition of family in section 137 of SSCBA applies to a family consisting of a couple and any children who are not members of their household and for whom either is responsible, and head (c) covers the case where the claimant is a lone parent with a child or children who are members of his or her household and for whom he or she is responsible………. However, the question of whether or not a person (in this case the applicant) is to be treated as responsible for a child turns upon whether the child in question is normally living with that person: see regulation [20], which goes on to provide that, when a child spends equal time in different households, or there is a question as to which household he is living in, the child is to be treated as normally living with the person receiving child benefit in respect of that child. Regulation 21 in turn makes clear that the child shall be treated as a member of the household of the partner receiving such benefit.

It thus seems clear that, for the overall purpose of claiming housing benefit, children in the position of the claimant's three sons are not to be treated as persons for whom he is responsible, nor as persons normally living with him, nor as members of his household. Instead, they are to be treated as the responsibility of his former partner, normally living with her and part of her household, in respect of which she is the proper claimant for housing benefit.”   (I have added the underlining for emphasis).       

18.              It seems to me unquestionably clear from the above passages in total and the underlined passage in particular that what is now regulation 20 of the Housing Benefit Regulation was of central importance in the Court of Appeal concluding that the children were not occupying Mr Marchant’s home because he was not ‘responsible’ for them (under what is now regulation 20), and the argument to the contrary is, in my judgment, simply hopeless.

19.              Equally without merit is the argument that under section 137(1) of the Social Security Contributions and Benefits Act 1992 a child may be part of a “family” under definition (c) where he or she is a member of the claimant’s household but the claimant is not responsible for him or her. The definition of “family” under (c) is “a person who is not a member of a couple and a member of the same household for whom that person is responsible and who is a child”, and that plainly requires the child to be both a member of the claimant’s household and his responsibility to count as being a “family”. That is the, intra vires,  basis upon which regulation 20 and 21 have been drafted and was the basis of the analysis that found favour in Swale. To argue, as is now argued on behalf of the appellant, that his daughter could be treated as a member of his “household” for the times she lived with him and thus a member of his family and as occupying his accommodation at those times is contrary to both s.137(1) of the Social Security Contributions and Benefits Act 1992 and the binding judgment in Swale and simply ignores (for no good reason) regulation 20. It is precisely because s.137(1) imposes two requirements before a child may confer the status of “family” on a single person or couple (assuming no other children) – namely responsibility for the child and that child being a member of the same household – that regulations 20 and 21 are needed. It may the case that in some general sense a child can be a member of a person’s household without that person being responsible for them, but if so they do not count as a, or part of a, “family” under s.137(1).

20.             The further flaw in the argument is the claim that regulation 21 only operates in respect of a “claimant” and therefore as there is no competing claim it does not apply to the appellant. I simply do not follow this.  The appellant was a “claimant” regardless of whether there is any other claimant; indeed he says that that the material time he was the only claimant. On its face regulation 21 applied to him as a claimant. I can see is nothing in it which possibly can imply that he was not a claimant if there was no other competing claim: it simply isn’t crafted as deeming provision which only has effect where there is another competing claim.  Regulation 21 therefore applied to the appellant just as much as regulation 20, and the appellant’s daughter could not therefore be a member of his household because he was not “responsible” for her under regulation 20.   

21.              Given my view on the merits of the appellant’s new construction argument, I did not consider it necessary to call on the respondents to address it.                         

22.              For the reasons given above, this appeal is dismissed.                                   

(Signed) S. M. Wright

Judge of the Upper Tribunal

Dated 21^st May 2014