Langley v Bradford Metropolitan District Council and another [2004] EWCA Civ 1343 CH 1205 2003
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 22 September 2003 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Housing and council tax benefits |
| Docket Number | CH 1205 2003 |
| Appellant | Langley v Bradford Metropolitan District Council and another [2004] EWCA Civ 1343 |
R(H) 6/05
(Langley v Bradford Metropolitan District Council and another [2004] EWCA
Civ 1343)
|
CA (Kennedy, Sedley and Neuberger LJJ) 15.10.04 |
CH/1205/2003 |
Human rights – discrimination against former member of a heterosexual relationship – whether facts fell within the ambit of Article 8 – whether discrimination could be justified - whether claimant entitled to any remedy
Ms Langley’s relationship with a man with whom she had been living together broke down. He left the home that they had formerly shared but she remained. She agreed to pay rent to him and claimed housing benefit in respect of this. The local authority refused the claim in accordance with regulation 7(1)(c)(i) of the Housing Benefit (General) Regulations 1987 because she was paying rent to a former partner. She appealed against this decision on the grounds that it constituted discrimination incompatible with her Convention rights under the Human Rights Act 1998 because the definition of “partner” in those regulations only referred to heterosexual relationships, so that a person who had formerly been in a homosexual relationship and whose circumstances were otherwise the same as hers would have qualified for benefit
Her appeal was refused by the tribunal and she appealed to a Commissioner. He held that the facts fell within the ambit of Schedule 1 Part 1, Articles 8 and 14, to the Human Rights Act but the difference in treatment of which Ms Langley complained was justified. It was possible to speculate that the policy-makers responsible for regulation 7(1)(c)(i) had considered that there was less risk of abuse of the housing benefit scheme by former homosexual partners than by former heterosexual partners. He therefore rejected the appeal and Ms Langley appealed to the Court of Appeal. The Secretary of State submitted a respondent’s notice contending that the Commissioner was wrong to consider that either Article 8 or 14 was engaged.
Held, dismissing the appeal, that:
1. The facts did not fall within the ambit of Article 8. (Per Sedley LJ) the housing benefit scheme as a whole is within the ambit of Article 8 as its purpose is to enable persons to retain a dwelling that they would otherwise be unable to afford and so demonstrates the state’s respect for the home. However it was necessary to consider not the scheme as a whole but the particular provision that was alleged to be discriminatory. Since the purpose of regulation 7(1)(c)(i) is to prevent abuse, it does not engage any Convention right (paragraphs 71 and 76). (Per Kennedy LJ) the housing benefit scheme is not within the ambit of Article 8 as its provision is not the state’s demonstrating its respect for the home. Although it might have the effect in particular cases of enabling the claimant to retain a dwelling, the benefit was not sufficiently closely allied to that object (Douglas v North Tyneside MBC [2003] EWCA Civ 1847 [2004] HLR 14 considered) (paragraphs 179 to 180);
2. The discriminatory effects of regulation 7(1)(c)(i) could not be justified. Even if it were the case (which was merely speculation on the part of the Commissioner) that the reason for the discrimination was that it was believed that the problem of artificial tenancies was far less prevalent as between former homosexual partners than as between former heterosexual partners, evidence that this belief was factually based needed to be presented. No such evidence had been before the Commissioner or the Court (paragraphs 68 and 69);
3. Even if the refusal of benefit was incompatible with Ms Langley’s Convention rights, no relief should be given by the Court. (Per Sedley LJ) she had failed to show that she was a “victim” as required by section 7(1) of the Human Rights Act. Even if the discriminatory element in regulation 7(1)(c)(i) were removed by making it applicable to former homosexual couples, her own position would not be improved. Her real complaint was against the arbitrary nature of the provision but that does not raise any Convention issue (paragraph 75). (Per Neuberger LJ) the real anomaly in regulation 7(1)(c)(i) was that it did not cover former homosexual couples. Therefore for the Court to award compensation for breach of Convention rights to former heterosexual couples would be to increase the size of those to whom anomalous payments were being made, which the Court should not do
(R (Hooper) v Secretary of State for Work and Pensions [2003] EWCA Civ 813, [2003] 1 WLR 2623 at [160] to [163] applied) (paragraphs 179 to 180);
4. Per Sedley LJ, if any remedy were to be given to Ms Langley, it would have to take the form of a declaration that regulation 7(1)(c)(i) was ultra vires. The alternative of “reading up” the regulation so as to construe it as covering former homosexual partners was not available as this would be to go beyond any power which even the Administrative Court possesses (paragraph 92).
Note: The headnote above covers the judgment in Langley only, but the decision reproduced below is the combined decision of the Court of Appeal, including the case of Secretary of State for Work and Pensions v “M” (CCS/1153/2003) in which the Secretary of State has appealed to the House of Lords.
DECISION OF THE COURT OF APPEAL
Ms Karon Monaghan and Ms Ulele Burnham (instructed by Liberty) for “M”
Mr Richard Drabble QC and Ms Rachel Perez (instructed by Stachiw Bashir Green) for Ms Langley
Mr Philip Sales and Mr Daniel Kolinsky (instructed by Solicitor for Department for Work and Pensions) for the Secretary of State
Ms Kate Olley for Bradford MDC
Judgment (reserved)
LORD JUSTICE KENNEDY:
1. I have asked Lord Justice Sedley to deliver the first judgment.
2. Since we heard submissions in relation to these appeals we have received from the solicitors acting for the appellant in the second case a request that her name be given in full. Thus far she has been referred to only as L. We accede to that request.
LORD JUSTICE SEDLEY:
3. M is a mother of two children. They live with their father but she shares with him the responsibility for their maintenance. She herself has since 1998 lived in a same-sex relationship, pooling incomes and sharing outgoings with her partner.
4. Ms Langley is a woman who, following the break-up of a relationship with a man, remained in what had been their shared home and paid rent to him.
5. M’s case arises out of the calculation of her child support liability. Ms Langley’s case arises out of her claim for housing benefit. Because they raised related issues they were heard together by Mr Commissioner Jacobs. His decision against Ms Langley, upholding that of the Leeds appeal tribunal, was given on 22 September 2003. His decision in favour of M, upholding that of the Middlesbrough appeal tribunal, was given on 1 October 2003.
6. In M’s case the issue is this: because the prescribed criteria for reducing the liability of absent parents for child maintenance on account of their current housing costs are confined to members of heterosexual couples, her liability is greater than if she were now living in a heterosexual relationship. She has successfully sought resolution of the issue under the Human Rights Act 1998 by having the material regulations treated as applying to her (and by logical extension to members of other same-sex partnerships) as they do to members of heterosexual partnerships and marriages.
7. In Ms Langley’s case the issue is this: the local authority has decided that she is not entitled to housing benefit because she is paying rent to a former cohabiting partner of the opposite sex when she would not be disentitled to benefit had it been a same-sex relationship. In this argument she has failed before the Commissioner on the ground that she cannot show herself and her chosen comparator to be in a relevantly similar situation
8. It is helpful that we have both cases before us, not only because they raise a common issue from widely divergent standpoints but because the reasoning in the one case offers certain challenges to the reasoning in the other.
The legislative schemes
Child support
9. The broad effect of the material provisions is to allocate the financial responsibility of separated parents for the maintenance of their children by pooling the absent parent’s income and outgoings with those of his or her new partner if, but only if, that partner is of the opposite sex. For same-sex couples this means that the one who is an absent parent is assessed as if living alone, with generally disadvantageous consequences.
10. By section 11 of the Child Support Act 1991, child maintenance is to be calculated in accordance with Schedule 1, which sets out the elements of income and outgoings to be taken into account. These include the following sub-paragraphs:
“6(4) The amount which is to be taken for the purposes of this paragraph...
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