Child Poverty Action Group v Secretary of State for Work & Pensions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 13 October 2011 |
| Neutral Citation | [2011] EWHC 2616 (Admin) |
| Docket Number | Case No: CO/1768/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 October 2011 |
[2011] EWHC 2616 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Supperstone
Case No: CO/1768/2011
Martin Westgate QC and Jamie Burton (instructed by Child Poverty Action Group) for the Claimant
James Eadie QC and Catherine Callaghan (instructed by DWP Legal Group) for the Defendant
Hearing dates: 21 and 22 July 2011
Mr Justice Supperstone:
Introduction
This claim concerns changes to rules for calculating housing benefit that were brought into effect on 18 March 2011 and 1 April 2011. The Child Poverty Action Group, the Claimant, challenges two reforms to the housing benefit scheme. The measures under challenge are part of a housing benefit reform package introduced by the Government.
The Claimant challenges
i) first, the introduction of maximum weekly caps on the amount of local housing allowance ("LHA") on the basis that it is ultra vires as being outside the powers conferred on the Secretary of State for Work & Pensions, the Defendant, under the Housing Act 1996 ("the Housing Act"), read together with the Social Security Contributions and Benefits Act 1992 ("the SSCBA").
ii) second, the reduction of the maximum size in accommodation eligible for housing benefit from five bedrooms to four bedrooms on the basis that the Defendant failed properly to fulfil his general equality duties under the Race Relations Act 1976 ("RRA") and the Sex Discrimination Act 1975 ("SDA").
Further, the Claimant seeks permission to add a third ground of challenge, namely that in relation to the introduction of maximum weekly caps on LHA the Defendant also failed to comply with his general equality duty under the RRA. At the outset of the hearing I granted permission for the Claimant to proceed with this additional ground.
The specific provisions challenged are:
i) Article 2(3)(b)(iii) of the Rent Officers (Housing Benefit Functions) Amendment Order 2010 ("the RO Amendment Order"), which amends Schedule 3B of the Rent Officers (Housing Benefit Functions) Order 1997 ("the RO Order"), so that LHA weekly rates are capped at £250 for one bedroom properties; £290 for a two bedroom property; £340 for a three bedroom property; or £400 for a four bedroom property. This amendment was made under section 122 of the Housing Act.
ii) Regulation 2(6)(a) of the Housing Benefit (Amendment) Regulations 2010 ("HB Amendment Regulations"), which amends Regulation 13D of the Housing Benefit Regulations 2006 ("the HB Regulations") by reducing the largest dwelling category for LHA determinations from five to four bedrooms. This amendment was made under ss.175 and 130A of the SSCBA.
Background
Ms Higgins, the team leader for the Local Housing Allowance Reform Division in the Department for Work & Pensions ("DWP"), in her first witness statement dated 3 June 2011 explains the background to the 2011 Local Housing Allowance measures as follows:
"28. The Government's objectives in controlling the cost of the social security budget are to end long-term welfare dependency; provide a fairer, simpler approach to delivering welfare benefits and to deliver savings that will reduce expenditure and help cut the wider budget deficit.
29. Furthermore as part of the 2010 Spending Review, the Government set out its policy to reduce public expenditure on welfare reform. Overall benefit expenditure was forecast to be around 10% of the GDP in 2010/11 and for people of working age, the welfare budget rose by 40% in real terms from £63bn in 1996/97 to £87bn in 2009/10.
30. In cash terms, expenditure specifically relating to Housing Benefit has nearly doubled over the last decade, rising from £11bn in 2000/01 to an estimated £22bn in 2010/11.
31. There have been various causes for growth in Housing Benefit expenditure. Since 2008, the recession has driven up the number of claimants, and rents in the social rented sector have risen faster than inflation. However, increases in private sector rents have made a substantial impact on the overall cost – over £3bn of spending in 2009/10 is attributable to growth in private sector rents since 1999.
32. The Government set out its specific plans for reforming Housing Benefit in the June 2010 Budget. The earliest of these planned changes, to exert control over LHA rules, were progressed through amendments to secondary legislation whilst longer term measures due to come into force in 2013 will be progressed through the Welfare Reform Bill.
…
35. …The Government's overarching aim for the measures to reform LHA is to exert control on Housing Benefit expenditure, and in the short term in particular, to reduce the cost associated with private rented sector cases, and to remove some of the very high rates that have been payable in London. The 2011 measures to reduce LHA rates will save around £1bn in 2014/15. (Taken together, all of the Housing Benefit measures announced in the June 2010 Budget, including the LHA measures, are expected to save around £2bn in 2014/15). …"
Mr Westgate QC, for the Claimant, says that although the package of measures as a whole will leave almost no housing benefit claimant unaffected the particular measures under challenge are almost exclusively directed at London, or at least will produce the most adverse consequences in London. Mr Eadie QC, for the Defendant, acknowledges that the practical effect of the measures may be to put some areas, particularly parts of Central London, beyond the reach of some claimants who may need to move to less expensive areas.
The statutory scheme
Part VII deals with income-related benefits. By s.123(1)
"Prescribed schemes shall provide for the following benefits (in this Act referred to as 'income-related benefits')—
(d) housing benefit."
By s.130(1)
"A person is entitled to housing benefit if—
(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home;
(b) there is an appropriate maximum housing benefit in his case; and
(c) either—
(i) he has no income or his income does not exceed the applicable amount; or
(ii) his income exceeds that amount, but only by so much that there is an amount remaining if the deduction for which sub-section (3)(b) below provides is made."
S.130(3) provides that
"Where a person is entitled to housing benefit, then—
(a) if he has no income or his income does not exceed the applicable amount, the amount of the housing benefit shall be the amount which is the appropriate maximum housing benefit in his case; and
(b) if his income exceeds the applicable amount, the amount of the housing benefit shall be what remains after the deduction from the appropriate maximum housing benefit of prescribed percentages of the excess of his income over the applicable amount."
S. 130A deals with the appropriate maximum housing benefit. By s.130A
"(1) For the purposes of section 130 above, the appropriate maximum housing benefit (in this section referred to as 'the AMHB') is determined in accordance with this section.
(2) Regulations must prescribe the manner in which the AMHB is to be determined.
(3) The Regulations may provide for the AMHB to be ascertained in the prescribed manner by reference to rent officer determinations.
(7) A rent officer determination is a determination made by a rent officer in the exercise of functions under section 122 of the Housing Act 1996."
Regulations, orders and schemes for the purposes of SSCBA are made under section 175. By s.175(3)
"… any power under this Act to make regulations or an order may be exercised—
(a) either in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes of case;
(b) so as to make, as respects the cases in relation to which it is exercised—
(i) the full provision to which the power extends or any less provision (whether by way of exception or otherwise),
(ii) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different classes of case or different provision as respects the same case or class of case for different purposes of this Act,
(iii) any such provision either unconditionally or subject to any specified condition; …"
Section 175(6) provides that:
"any power conferred by this Act to make orders or regulations relating to housing benefit … shall include power to make different provisions for different areas."
Part VIII of the Social Security Administration Act 1992 ("SSAA") deals with, inter alia, arrangements for housing benefit. By s.134(1)
"Housing benefit provided by virtue of a scheme under section 123 of the Social Security Contributions and Benefits Act 1992 (in this Part referred to as 'the housing benefit scheme') shall be funded and administered by the appropriate housing authority or local authority."
S.134(1A) deals with rent rebates for the council's own stock. By s.134(1B)
"In any other case housing benefit shall take the form of a rent allowance, funded and administered by the local authority for the area in which the dwelling is situated or by such other local authority as is specified by an order made by the Secretary of State."
By s.191 "local authority" means "(a) in relation to England…, the council of a district or London borough, the Common...
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