PC CSH 777 2013
| Jurisdiction | UK Non-devolved |
| Judge | Other Judges / Other Commissioners/Deputy Commissioners |
| Judgment Date | 15 August 2014 |
| Neutral Citation | 2014 UKUT 467 AAC |
| Subject Matter | Housing and council tax benefits |
| Respondent | Secretary of State for Work and Pensions (HB) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CSH 777 2013 |
| Appellant | PC |
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...
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