Upper Tribunal (Administrative Appeals Chamber)

 

 

 

 

THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

 

This appeal is refused. 

 

The decision of the First-tier Tribunal held at Glasgow on 1 August 2013 was erroneous in law, but on the basis of the materials and submissions presented in this appeal, that error was not material.  The appellant’s appeal against the making of an “under-occupancy reduction” from his Housing Benefit fails. 

 

 

REASONS FOR DECISION

 

Introduction

 

1. The appellant is in receipt of Housing Benefit.  He is the tenant of a two bedroomed house.  The only other person who stays sometimes at the house is his fourteen year old son who, under longstanding arrangements, stays for the majority of the week with his mother, but for some days of the week with the appellant, using the second bedroom as his own.  The First-tier Tribunal refused the appeal.  Permission to appeal was granted.  The appellant has sought to rely on human rights obligations on the first respondents, Glasgow City Council.  The Secretary of State has become involved as second respondent.  In the appeal to the Upper Tribunal, the appellant’s case is based on reliance on Article 8 (“Protection of Home and Family Life, etc”), which, the appellant argues, obliged the first respondents to apply regulation 20 of the Housing Benefits Regulations 2006 so as to treat the appellant as responsible for his son, with the result that they should not be applying the under-occupancy reduction.

 

 

2. The appellant’s procedural approach to this appeal was to introduce additional evidence to enable it to be decided at this stage that he has a “seriously arguable” case justifying a further fact-finding enquiry into the specific circumstances of his case, without the necessity of any overall challenge to the scheme administered by the first respondents.  The respondents did not challenge this way of taking the appeal forward.  Accordingly, what I have had to consider, following an oral hearing in which additional evidential material has been provided by both sides, was whether it is “seriously arguable” that Article 8 obliged the first respondents to continue to award full benefit to the appellant.  I have considered below the approach which I have required to take to the factual position in these circumstances, but it may be noted at this stage that it is now a matter of agreement that the appellant has received “discretionary housing payments” making up for the full amount of the deductions made since 1 April 2013 and has received confirmation that he is to continue to receive such discretionary payments until 31 March 2015.  A significant part of the argument has been about the effect of these facts. 

 

 

 

 

 

Decision of First-tier Tribunal

 

3. Parties are agreed that the First-tier Tribunal fell into error, apparently by giving inadequate consideration to the argument based on human rights, a view which I am prepared to accept.  Accordingly, it is sufficient here simply to record that the Tribunal made certain basic findings in fact.  Put shortly, having noted that the first respondent’s decision was correct in terms of the regulation, the Tribunal took the view that the legislation, including that regulation, was not ambiguous, so that it was not possible to read and give effect to it in any way other than that which had been done by the first respondents.  The Tribunal did not have power to issue a declaration of incompatibility and accordingly did not consider further whether or not the Convention rights of the appellant (or his son) had been breached.  They also rejected an argument based on the Children (Scotland) Act 1995, a matter which has not been advanced in this appeal.

Appeal to Upper Tribunal

 

 

4. It is fair to say that the appellant’s case moved on during the course of correspondence about procedure, when the appellant’s representative submitted a detailed Note of Argument elaborating arguments on the basis of Article 8 alone, together with a witness statement from the appellant, elaborating on the circumstances surrounding the “shared care” arrangement at the heart of this appeal.  As indicated above, the appellant wished to argue, on the basis of that submission and the additional evidence, that it was seriously arguable, under reference to Article 8, that the under-occupancy deduction should not be made in his case.  The submission made clear the appellant’s approach that the particular decision made in the circumstances of his case unjustifiably interfered with his and his child’s home and private and family life. There was no broader challenge to the provisions.  It was argued that the appellant was entitled to a hearing taking full account of all the circumstances now put forward.  He was seeking to establish that the case based on Article 8 was seriously arguable, with the result that a further hearing of evidence of the facts and circumstances of this particular case, was required.  The submission initially was that the Upper Tribunal should set aside the existing First-tier Tribunal decision and remit the appeal to a First-tier Tribunal with directions for its reconsideration on the basis of the fuller evidence and the submissions regarding the effect of Article 8.

 

 

5. Each respondent lodged written submissions in answer to the appellant’s Note of Arguments referred to.  Neither of the respondents has taken issue with the appellant’s way of proceeding in this appeal.  Accordingly, at an oral hearing in which the appellant was represented by Mr Bryce, Advocate, the first respondents by Mr McDonald, Solicitor, and the second respondents by Mr Webster, Advocate, I was invited to rule on whether the appellant had a seriously arguable case which required further inquiry into the facts.  I acceded to that approach, although I did raise the possibility that, in the event of my being persuaded at this stage, the further evidential inquiry might in fact take place before the Upper Tribunal rather than remitting the appeal to another First-tier Tribunal.  Parties at the oral hearing appeared amenable to that way of proceeding as a more expedient way of disposing of the appeal if the appellant established a “seriously arguable” case.  The second respondents have in fact also produced some new evidential material in support of a passage in their written submissions regarding the existence and operation of the scheme of discretionary housing payments in the appellant’s case. The Upper Tribunal has formally admitted the additional evidence lodged on both sides. 

 

 

 

 

 

 

6. It may assist in shortening the references to party’s submissions to record some matters of agreement.  Firstly, neither respondent challenged the competency of the appellant’s basic approach to the effect that the first respondents as a “public authority” under Section 6(3)(b) of the Human Rights Act 1998, were required to act compatibly with Convention rights.  Secondly, the applicable test for breach of Article 8 was the five-stage test set out (in the immigration context) by Lord Bingham in Razgar [2004] 2 AC 368.  Although Mr Bryce did not put the matter in precisely the same way, I did not understand him to question the further division of the issues into two parts, firstly, whether Article 8 was engaged, i.e. whether there was interference with the right to respect for family life of sufficient gravity; and, secondly, whether such interference was justifiable in the sense of proportionate.  Mr Bryce also agreed that under Section 7 of the 1998 Act the appellant required to demonstrate that he was, or would be, the victim of an unlawful act, although I did not understand either of the respondents to advance any argument separate from the argument, as to whether Article 8 was engaged, in this respect.

 

 

Appellant’s Submissions

 

7. In the appellant’s Note of Argument, it was submitted that the particular decision made against him unjustifiably interfered specifically with his home and private and family life and that of his child.  If this was seriously arguable, he was entitled to a hearing taking full account of the facts and circumstances of his individual case.  Article 8 was engaged in respect that the measure might place families in a position where they are unable to remain in their existing accommodation, it being clearly contemplated that the result in many cases would be that the recipients and their families would be compelled to leave the homes they presently occupy. Cf. SG (formerly JS) v DWP [2014] EWCA Civ 156, at paras 85, 90. That applied a fortiori in the case of a measure expressly designed to break up a long established arrangement for shared accommodation of the child of separated parents.  There might have been justification, but the right was engaged.  The Article 8 rights had to be interpreted in the case of a family, in the light of general principles of international law, including Article 3(1) of the United Nations Convention on the Rights of Children.  (Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, per, Lord Brown of Eaton-under-Heywood at para 20;  ZH (Tanzania) 2011 2 AC 166, per, Baroness Hale at paras 21-23;  HH v Deputy Prosecutor of the Italian Republic, etc [2012] UKSC 25, per, Lord Wilson at para 155;  Jane Stevens v Secretary of State for Communities and Local Government and Guildford BC [2013]  EWCL 792, per, Hickinbottom J at para 55).

 

8. The evaluation following the Razgar test required to be carried out on a case-by-case basis rather than a bright line guillotine.  The interests of each child had to be examined on a case-by-case basis.  (Re. G [2008] 3 WLR 76, per, Lord Hoffman at paragraph 16).  So far as the gravity of the interference was concerned, the threshold of engagement was not a specially high one (AG (Eritrea) v Secretary of State for Home Department [2007] EWCA Civ 801.  The principal focus of any fact specific inquiry was likely to be in the realm of proportionality.  It was accepted that, as a generality, Convention jurisprudence refrained from imposing positive obligations to provide social benefits such as housing.  However, the boundary between a negative obligation to refrain from interfering in the family and home life in question, and the positive duty to respect it by facilitating it, was greatly blurred in a case where the measure appealed against interferes in a longstanding and well established arrangement for the upbringing of the appellant’s child.  Moreover, there were indications in the case law that there might be scope for enforcing positive social welfare obligations where there were at stake the best interests of a child.  Reference was made to Quila v Home Secretary [2012] 1 AC 621 at paragraphs 38 to 43;  Stevens v Secretary of State for Communities and Local Government, etc [2013] EWHC 792 (Hickinbottom J);  Holmes-Moorhouse v Richmond-upon-Thames LBC [2009] 1 WLR 413. There was a substantial degree of negative interference with the rights in question, making that harder to justify, at least when the best interests of a child were in play.  There were indications that the court might contemplate the imposition even of a positive obligation in a case involving the best interests of a child: Holmes-Moorhouse, at 421 B – C and 427 B – D.  New allocation of social housing support would involve only the invocation of purely positive obligations which would thus only exceptionally require to be accommodated, but the omission of any transitional provisions in the regulations meant that there would be cases where application of the measure negatively interfered with longstanding arrangements for the care and accommodation of children.  In such cases there would be a lower threshold and whether the interference was disproportionate would need to be assessed on the facts and circumstances of the case.  There was a parallel with the consideration of Article 8 rights in relation to recovery of possession of heritable property.  In the present case, the considerations on the basis of which interference in the private family and home life of the appellant and his son might be found to be disproportionate were: the appellant was not unemployed by way of lifestyle choice, and had been unable despite strenuous efforts to re-enter the labour market; there was a comparatively short time before the child turned sixteen; and the appellant had tried unsuccessfully to find single bedroom accommodation near the child’s mother’s home so as to allow family life to continue in some form.  The measure precisely disrupted the established family life in this case.  The availability of discretionary housing payments did not adequately replace housing benefit: Burnip v Birmingham City Council [2013] PTSR 117.  The appellant had made out seriously arguable grounds as to why the decision appealed against was an unjustifiable interference in his and his son’s family and home life and should be allowed an evidential hearing in which to question the proportionality of the measure.  There was an example of the correct approach to “reading down” subordinate legislation in Osman Omet v SHHD [2012] 3448 (Admin).  The words “except where incompatible with a person’s Convention rights”, could be “read in” to the Regulation.

 

 

9. In oral submissions, Mr Bryce emphasised the well established nature of the appellant’s private and family life and the component represented by the child’s interest and the significance of the best interest of the child.  In relation to any positive aspect of the Article 8 right, deference must be given to the right of the democratically elected executive to allocate social and economic resources, so that the burden on the State to justify interference would be lighter in the case of a new application.  Also, on the negative aspect, it would be easier to justify interference when no child was involved.  In this case, however, the State was seeking to interfere and break up an arrangement of shared care of a child that had lasted all the child’s life when there was quite a short period before he would reach the age of sixteen.  The amendment to the Regulations had contained no transitional provisions taking account of this situation.  As regards the discretionary housing payments, Mr Bryce recognised and accepted the decision in Rutherford and Others v Secretary of State for Work and Pensions [2014] EWHC 1631 (Admin), referring to paragraphs 25, 26 and 53-54. That case involved an assessment of the impact on the appellant, in relation to the degree of assuredness of the discretionary payments.  In the present case,  the appellant was impacted by uncertainty in the past and uncertainty in the future.  It was recognised that the appeal lay within this “small margin”.  Evidential examination was required.  The specific role of housing benefit was important (Burnip, at para 45).  Article 8 being engaged, the issue was justification, requiring a proportionality exercise.  The appeal came down to whether the payment of discretionary housing payments was justification and the question was whether there was a present adequate assurance of the appellant’s position.  It would not be necessary to inquire into the facts in every case, particularly if the Upper Tribunal gave a decision as to the operation of the scheme in Scotland.  Asked about a remedy if the payments stopped after 31 March 2015, Mr Bryce could not exclude the possibility of a remedy in judicial review, but said that it would be better to deal with the matter within this system.  He understood that in that situation the appellant would not be able to apply again for housing benefit.

 

Submissions for second respondent

 

10. The second respondent took the lead in answering the appellant’s submissions.  In his Note of Argument, the second respondent, having noted that the appellant’s only challenge to the application of the regulations was under reference to Article 8, identified two issues.  Was Article 8 engaged?  If so, was it strongly arguable that there had been disproportionate interference with the right?   The test in Razgar required initial consideration of whether Article 8 was engaged such as to justify consideration as to whether the interference was proportionate.  To engage Article 8, there must be interference with the right  to respect for family life, and it must be of sufficient gravity.  Article 8 did not require the State to provide a home – Chapman v UK [2001] 33 EHRR 18.  Nor did it impose any positive obligation to provide financial assistance to support a person’s family life.  Whilst there might be circumstances in which Article 8 imposed a positive obligation to take steps to secure or further respect for home or family life, such positive obligations only arise where there is a direct and immediate link between the measure sought and the private and/or family life (Botta v Italy [1998] 4 BHRC 81, at para 34;  R (Carson) v Secretary of State for Work and Pensions [2003] All ER 577, at paras 26-29.)  The appellant had to demonstrate that he was the victim of an unlawful act (Klass v Federal Republic of Germany [1979/1980] 2 EHRR 214, at para 33).  The removal of the spare room subsidy did not render the appellant’s housing needs unprovided for.  If anything, it was the extent of the appellant’s disposable income which might be affected.  The appellant continued to reside in his property and did not show or offer to show any inability to meet the rent, nor any rent arrears, nor any attempt to have him removed from the property.  The submission went on to set out the position regarding discretionary housing payments.  The amount available to local  authorities had been increased, and the Scottish Government had made additional funding available and committed to make further funding available.  Only seventy two per cent of the allowable spend had been paid out. The appellant had had the benefit of that financial assistance, and had the ability to enforce compliance through judicial review in the protection of any Article 8 right.  He was not proposing to demonstrate that he was or would be appreciably worse off in terms of home or family life.  It was manifest that his predicament was insufficiently severe to constitute an interference with Article 8 rights.  Cf. Anufjijeva v Southwark London Borough Council [2004] QB 1124 at para 43; R (TG) v Lambeth London Borough Council [2011] HLR 33,  per, Wilson L J at paras 34, 40; and R (SG) v Secretary of State for Work and Pensions, at paras 105 and 106.  The appellant’s case fell well short of demonstrating destitution, and thus engagement of Article 8.

 

 

11. It was submitted that, if Article 8 was engaged, the foregoing observations applied a fortiori in the assessment of proportionality.  Detailed reference to R (MA and Others) v Secretary of State for Work and Pensions [2013] EWHC 2213 and  21 February 2014 (Court of Appeal); R (SG) v Secretary of State for Work and Pensions; and Rutherford and Others v SSWB, was made.  In relation to the present case, the application of the measure to parents with shared care had been raised and considered during the passage of the legislation through parliament, following consultation.  There was no precisely defined group of individuals with shared care of children whose circumstances justified disapplication and there was no “bright line” to identify the extent of shared care.  Local authorities administering the discretionary housing payments were required to consider applications to alleviate hardship, including in shared care situations. If a reduction in a particular case did threaten to infringe Convention rights, the authority would have a duty to consider awarding a DHP.  Reliance on  UNCRC did not add materially to the appellant’s case.  Further, the reduction in the appellant’s housing benefit reflected the principle of one person being responsible for a child in any benefit period, making the decision in Humphreys v HMRC [2012] 1 WLR 1545 upholding that principle fatal to the appeal.  The Housing Benefit provision had previously “duplicated” benefit in respect of a child.  The measure also harmonised the approach in the social sector with the longstanding approach to housing benefit for private sector housing.  The application of standard size criteria to private sector housing had never been adjudged in breach of the Convention rights of any shared carer and no reason had been suggested why social sector tenants ought to be treated more favourably in this regard.  The application of the standard size criteria to shared care arrangements of social sector tenants comfortably surpassed, for all these reasons, the threshold of not being “manifestly without reasonable foundation” and was therefore justified, at least in the present case.  The appellant had failed to demonstrate a seriously arguable case. 

 

 

12. Elaborating orally, Mr Webster submitted that the appellant had not overcome the high hurdle of making out a “seriously arguable” case.  It was not enough to say that he might be worse off.  The obligation was on him to show why he was at risk after March 2015.  The cases of MA and Rutherford had taken matters further on from Burnip, into regard for the question, what happens at the end, was there adequate assurance in relation to the future?  Accepting that the appellant had been given no undertaking of the position after March 2015, he had not put forward any material suggesting why he would not continue to have the payments in the future.  He had a potential remedy at that stage.  That would then focus matters on the discretionary housing payments rather than housing benefit.  That was where he might have a remedy.  In relation to engagement, which Mr Webster also characterised as “standing”, and to the test of detriment, in order to be a victim, the appellant (a) was still in his house, (b) was exercising the same child care, and (c) had had all the housing benefit made up.  There was no direct or sufficiently serious degree of suffering.  (It was also submitted that (a) and (b) were sufficient on their own to defeat the appellant’s case).  It was pointed out that the scheme of discretionary housing payments was statutory: Child Support, Pensions and Social Security Act 2000, Section 16(9).  The regulations governing discretionary housing payments gave a right of review.  The appellant’s reliance on SG was misplaced, the relevant passage in relation to reliance on Article 8 on its own, per, Lord Dyson, started at paragraph 87.  The case for engagement fell far short, even if there was any interference.  It might arise later, in relation to an unfavourable decision on discretionary housing payments.  Mr Webster also reiterated the written submissions on the question whether, if the Article was engaged, it was seriously argued that it was disproportionate in this case.  There was no indication of the appellant’s position after March 2015, making the risk in respect of that period highly speculative. 

 

 

Submissions for first respondent

 

13. The first respondent in effect submitted that the second respondent was in the best position to answer.  The first respondents did not accept any obligation to disapply regulation 20.  They were entitled to assume that the regulations were ECHR compliant.  The regulations were approved of by Parliament as part of a deliberate policy shift.  It would only be in very exceptional circumstances that a local authority administering housing benefit could go beyond the plain meaning of regulations approved by parliament.  It was not clear that Article 8 was engaged. Even if it was it was not clear that any interference with the appellant’s Article 8 rights would be disproportionate.  The first respondent’s decision maker had no reason to anticipate any interference or certainly not any disproportionate interference, with Article 8 rights.  Mr McDonald did clarify at the hearing that the discretionary housing payments had not been awarded originally, but some six weeks after the measure took effect, backdated,  but there had been no refusal of that claim.  There had been one short gap in payments due to administrative oversight but that, too, had been made up. (Mr Bryce indicated his acceptance of this position). 

 

 

 

 

 

Consideration: Error of Law

 

14. I am prepared to accept, without any detailed analysis, that the Tribunal’s decision was erroneous in law.  Although I am not at all clear as to the extent to which the human rights points were advanced – it would certainly be in much less detail than in this appeal – I can accept the position taken up by all three parties to the extent, at least, of holding that the First-tier Tribunal did not give adequate reasons for its decision as regards Convention rights.  The issue before me was therefore whether the error was material  (or perhaps whether or not the decision required to be re-made with any different result).

 

 

Factual Position

 

15. I require next to explain my approach to the factual position under the procedure which has been followed of allowing the appellant to submit that he has a seriously arguable case.  Firstly, there are the unchallenged findings of fact by the First-tier Tribunal.  They found that the appellant’s house, tenanted from the social landlord, has two bedrooms.  He  is the sole resident, sleeping in one of the bedrooms.  His son, born in October 1999, stays with his father on Wednesday, Friday and Saturday nights, this being a regular pattern of shared contact which has been in place for most of the boy’s life.  He lives with his mother at a different address for the remaining four nights.  She receives Child Benefit.  While staying at the appellant’s house, the son uses the second bedroom, which he and his father consider to be his room and which contains some of his possessions such as a computer, bicycle, etc. 

 

 

16. Beyond that, it seems to me that for the purpose of deciding whether the appellant has a seriously arguable case I should generally accept the appellant’s written statement of evidence pro veritate.  Conversely, it would not be right to accept the additional material advanced by the second respondent if it was not agreed.  However, the appellant and the respondents were content for me to consider all the material before me, in order to assist in considering whether there was a seriously arguable case.  There is probably very little in dispute, although the first respondent did indicate a wish to test the appellant’s evidence insofar as it related to his ability to find alternative accommodation and his ability to find employment.   On the appellant’s behalf, Mr Bryce, as well as specifically accepting the information about actual payments to the appellant, made clear his acceptance that the more general information provided by the Secretary of State was provided in good faith and no doubt accurate so far as it went. 

 

 

17. On that basis, I should accept the appellant’s witness statement for present purposes.  I have taken it all into account, but summarise it briefly here.  The appellant has hearing difficulties affecting his employability.  He lived for a period with the mother of his son and has been single ever since.  There has been an informal shared caring arrangement throughout the son’s life.  The appellant and his mother moved to his present house about nine years ago.  She, however, died in 2009.  Since then, the son who stays three nights a week is the only occupant of the second bedroom.  The caring arrangements have worked extremely well.  They are very beneficial for the son, who has friends and activities in the area and is doing extremely well at school.  They help in providing a very stable home and family support network.  The son has said he would not want to stay if he did not have his own room where his friends could visit.  The arrangements would be disrupted if the appellant was forced to have a one-bedroom property.  The appellant originally became unemployed in order to care for his dying mother and would want to get back into work, but his deafness has made this difficult.  When told about the under-occupancy deduction, he realised he “would not be able to pay for the bedroom tax”, wanted to stay in his house but did not want to get into trouble with rent arrears.  He asked his landlord if they had any one-bedroom houses available.  They said they did not.  He could not take in a lodger.  The statement, dated April 2014, finally refers to uncertainty about the discretionary payments and whether he was going to get into trouble with the housing association for arrears, but that should be qualified by the information clarified at the oral hearing to the effect that the appellant has received confirmation of continuing receipt of the discretionary payments, so that the whole of the shortfall between the date of the decision and April 2015 is being made up.  The most recent letter confirming that states, as in earlier letters, that this  “is short-term assistance during a particular period of financial difficulty”, this being apparently a standard form of letter which gives no consideration to the appellant’s particular circumstances.

 

 

18. That letter confirms the “start date” of the present award of discretionary payments as 7 April 2014 and the “end date” as 6 April 2015.  The second respondents also produced a “discretionary Housing Payments Guidance Manual … including Local Authority Good Practice Guide”, dated April 2014.  This provides some forty pages of guidance on the administration of discretionary housing payments under the Discretionary Financial Assistance Regulations 2001, as amended in 2013.  Put shortly, local authorities are advised that although the regulations give them very broad discretion, decisions must be made in accordance with ordinary principles of good decision making, i.e. administrative law, and in particular authorities have a duty to act fairly, reasonably and consistently and to consider each case on its own merits.  However, once the authority’s overall cash limit has been met, no more payments can be awarded.  Priority is given to applicants where separated parents have a formal arrangement for shared care of a child or children and an additional bedroom is a requirement of the agreement, as well as other cases such as extra accommodation costs for disabled persons, etc.  Although there are caps on the amounts that local authorities can pay, there have been increases in the amounts available to local authorities, the Scottish Government has made particular efforts to make additional funding available for this purpose and not all of the available discretionary housing payments spend has been used either by the first respondents of their allocation or in Scotland as a whole, at least up to 31 March 2014.  The Scottish Government has formally been granted power to set the DHP cap level in Scotland for the financial year 2014-2015 and intends “to either remove it completely, or to set it at a level high enough to meet the Scottish Government’s clearly stated policy intentions”. 

 

 

19. From all this I can take it that there is a well established scheme of discretionary payments which has to date been applied to benefit the appellant, having regard to the shared care arrangements involving accommodation for his son, and he has an award of such payments until the end of the current financial year.  As regards the period from April to October 2015, when the appellant’s son will reach the age of sixteen, I have not found any specific or formal commitment to funding for that period, although it was indicated to me orally that a statement of the second respondents’, i.e. the UK Government’s, intention to continue funding for the scheme has been made. That was not vouched, but at all events I think it may be taken that there is an established, funded scheme which has not only been applied to date to the appellant but seems likely to continue if his circumstances remain the same, i.e. he remains unemployed and maintains, as there is no reason to doubt he will do, the present arrangements for sharing the care of his son.  There is no indication of any particular pressure applied in his case in relation to the finding of single bedroom accommodation.

 

 

 

 

 

 

 

20. It is fair to say that the more general factual background on the issue of justification, i.e. the extent of governmental consideration, consultation and discussion and debate in parliament is not spelled out in material lodged in this appeal.  This is, however, material which has been aired at some length in some of the cases referred to and I did not understand Mr Bryce to take objection to references to such consideration, although I think care needs to be taken to ensure that the references relate adequately to the issue as it arises in this case. 

 

 

Engagement of Article 8

 

21. I turn therefore to consider the first issue, whether the appellant has done enough to demonstrate the engagement of Article 8.  Having set out fairly fully the authorities to which each side referred in argument, I shall explain my conclusion relatively briefly and without further detailed references.  I should indicate that, although Mr Webster referred to this issue as being whether Article 8 was engaged, I think I should consider, under this issue as well as the second issue of justification, whether the appellant’s position is “seriously arguable”.

 

 

22. There appears to me to be a slight semantic mis-match between the parties’ position on “engagement”.  I suspect that Mr Bryce’s approach was that Article 8 is engaged if the first part of the Razgar test could be satisfied, leaving the question of the gravity of the interference as being something to be weighed in the scales of proportionality.  Mr Webster on the other hand clearly enough treated the test of engagement as including the first two parts of the test, the remaining three parts going to the issue of justification.  As a matter of fact, when one looks at Lord Bingham’s expression of the test, at para 17, the second part is expressed as:  “if so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8?”  At all events, what is clear is that parties are agreed that Lord Bingham authoritatively set out five hurdles, of varying heights, in the way of a claim under Article 8, although it should be remembered that this was in the context of a decision by the Secretary of State to direct the claimant’s removal to another country. 

 

 

23. I should also make clear that I accept, again as agreed by the parties, that a  “case- by-case”, as opposed to a “bright line”, or “guillotine”, approach is permissible where, as in an individual’s appeal against a benefit decision, the case is based on the appellant’s particular circumstances.  The cases considered in “Burnip”,  which was such an appeal, as opposed, for example,  to MA and Rutherford, which were not, appears to illustrate that.  However, the picture also includes consideration of the whole scheme and its application.

 

 

24. I have reached the view that the first part of the Razgar test could be satisfied by a case such as the present, in which the under-occupancy deduction may affect the appellant’s tenancy, when the additional room is used by a child under shared care arrangements.  I accept the relevance of UNCRC and that the best interests of the appellant’s son are an important consideration.  As it seems to me, the question at this stage is whether there may be “interference”, as opposed to failure to provide or to give positive support.  As well as the clear indications on the authorities that neither Article 8 nor any other Convention right are directed generally at the provision of benefits, in particular housing, there are indications that there might be cases in which a measure may interfere with longstanding arrangements in which considerations of the welfare of a child or children arise.  This distinction between provision (the positive obligation) and interference (the negative obligation in a ‘shared care’ case) is indicated in paragraph 41 of the opinion of Baroness Hale in Holmes-Moorhouse, although I do note that that particular case had nothing to do with  Convention  rights. As  regards Article 8,  I  think  there  is  sufficient  in the  judgement of the Court of Appeal in SG, in their consideration of the free-standing claim, from paragraph 87 onwards, to support the possibility of relevant interference, if it is of sufficient gravity, in such a case.  The under-occupancy deduction may affect the tenancy and therefore the family life of the appellant and a child.  I am inclined to the view that the discretionary housing payments scheme is highly relevant to the issue of gravity but does not affect the basic analysis that this measure in relation to housing benefit might in such cases interfere with the exercise of this Convention right.

 

 

25. However, I am also of the clear opinion that any relevant interference which may be established in this case could not, having regard to the jurisprudence on Article 8, be regarded as having consequences of such gravity as to satisfy the second part of the test and thus require the respondents to show justification.  Here again I refer to the consideration of the free-standing claim in SG.  At this stage I see no reason to leave the scheme of discretionary housing payments out of account and in that situation, looking at what this appellant may be able to establish, I cannot see that this case could be of sufficient gravity.  Nor is SG the only case illustrating the degree of interference which would be required.  As Mr Bryce fairly acknowledged, all that the appellant can point to is a degree of uncertainty in the past and a degree of uncertainty as to the future.  As to the past, I cannot see that the by no means unduly long period during which the application for discretionary housing payment was being processed, or the brief accidental failure to make the payments, can have any weight at all.  As to the future, while I do not regard this as irrelevant, I do not on the material before me think that it can have a serious effect on consideration of the present position.  I note the reference in para 100 of SG to “a premature and pessimistic assumption” and consider the position about the discretionary payments in the short period of around six months during 2015 is similar.  It will be clear from the foregoing that I regard the approach taken in MA  and Rutherford to discretionary housing payments as part of the scheme under consideration, as relevant here even although the issue in those cases related to justification of discrimination.  Mr Bryce did not argue otherwise although, as already noted, he may have been putting the arguments into slightly different compartments. Put shortly, taking the discretionary housing payments into account, there is no interference of any gravity at all  with the appellant’s Article 8 right or that of his son.

 

 

26. That is sufficient to dispose of this appeal.  I would, however, just add that Mr Webster on behalf of the second respondents urged on me the view that, even without the discretionary housing payments, there could not be sufficient interference, on the basis of the evidence proffered by the appellant.  He argued that the facts that the appellant remained in his house, i.e. has not lost the tenancy, and continues to exercise the same child care, were on their own, i.e. even if the shortfall in benefit had not been made up, showed that he could not succeed in showing interference of sufficient gravity.  I have decided the case particularly on the basis of the discretionary housing payments, but would add that I think an appellant who is not able to show actual, as opposed to threatened, serious breaches of his home and family life, may well find it difficult to overcome this particular hurdle in an Article 8 argument.  It might also be – I only say might be – that the appellant’s son’s family life might not be sufficiently seriously interfered with even if the appellant were required to move to a smaller house.  While one could envisage particularly serious consequences in some cases for children, might there also be, individual cases in which the interference does not have a sufficiently serious effect. However, I do not require to consider that further.

 

 

 

 

 

 

 

27. I should perhaps add that I have not left the lack of transitional provisions protecting claimants in the position of the appellant out of account.  That may serve to underline the possibility of this measure falling under Article 8, i.e. the first part of the test, but does not in my view add anything to the case of gravity in the situation where, in effect, the appellant’s position has been protected by the discretionary payments. 

 

 

Justification

 

28. I deal quite shortly with the issue of justification, not only because my decision on the first issue is sufficient to dispose of this case, but also because the decisions in MA and Rutherford  address this issue, albeit in the different area of discrimination.  Parties were agreed that the test of justification under Article 8 is the same as under Article 14.  It is, again, clear from those cases that, in relation to this issue also, the measure complained of has to be seen as part of a larger scheme, including the scheme of discretionary payments.  Further, although the appellant is entitled to have his own particular circumstances considered, when those circumstances are considered in this case they reveal only a narrow area of interference, in the form of uncertainty.  Therefore, when one asks whether the application of the scheme to the appellant, and his son, can be justified as proportionate to the legitimate public end sought to be achieved, there is in this case in my view only one possible answer.  A scheme which includes a measure which may affect a claimant’s home and family life, but which also incorporates protection in his particular situation, which protection has actually been given, albeit on a discretionary basis, cannot in my view be seen as disproportionate or not justified in terms of the Convention right.  I am in no doubt that the third, fourth and fifth parts of the Razgar  test Hewould be satisfied in this particular case even if the appellant succeeded at the second part.  As Mr Bryce acknowledged, there must be a high degree of deference to the democratic decision of the executive, exposed as this one has been to detailed scrutiny in Parliament and when the measure has included the protection, which it has, for the appellant’s position, the scale in my view comes down heavily against the appellant.   I reach this view without taking account of the issue of splitting benefits between carers.

 

 

29. For all these reasons, it is not in my opinion seriously arguable that the decision to apply the under-occupancy deduction to the appellant involves a breach of Article 8 requiring his appeal against that decision to succeed. Thus, while the First-tier Tribunal did err to the extent identified, that error was not in my opinion material to its decision to refuse the appeal.  The appeal to the Upper Tribunal is therefore refused.

 

 

 

 

 

 

 

 

(Signed)

J N WRIGHT QC

Judge of the Upper Tribunal

Date: 15 August 2014