R A v The Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | HHJ Worster |
| Judgment Date | 29 January 2015 |
| Neutral Citation | [2015] EWHC 159 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 January 2015 |
| Docket Number | Case No: CO/6391/2013 |
[2015] EWHC 159 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
HHJ Worster
(sitting as a High Court Judge)
Case No: CO/6391/2013
Caoilfhionn Gallagher and Katie O'Byrne (instructed by Hopkin Murray Beskine) for the Claimant
Tim Eicke QC and Edward Brown (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 19 and 20 November 2014
Draft Judgment: 10 December 2014
This is an application for judicial review of the Housing Benefit (Amendment) Regulations 2012; SI 3040/2012 ("the regulations"). Permission was granted by HHJ Anthony Thornton QC on 26 June 2014. It is submitted on behalf of the Claimant that this is a test case of some importance. The Defendant's stance is that the application raises questions of principle which have already been answered by the Court of Appeal in R (MA and others) v Secretary of State for Work and Pensions [2014] EWCA Civ 13; [2014] PTSR 584, and that there is no material distinction between that case and this.
The Claimant
The Claimant (I shall refer to her as "A") lives in a three-bedroomed house rented from her local council. She refers to the house having two bedrooms and a box room. She moved into the property in about 1989, and has lived there ever since. In 1993–4 she had a very brief and casual relationship with a man (X). Some time later X was convicted and sentenced to 15 years in prison for the attempted murder of a Police officer. Whilst in prison he started harassing A, and in 2002 after he had been released, he sought her out. He went to her house and assaulted and raped her whilst her teenage daughter and a friend were in the house. She was terrified and X threatened further violence if she told anyone. As a result of the rape, A conceived a son, who was born in 2003 and lives with her. X sought contact with his son and following proceedings the Court ordered that there should be no contact until the child was much older.
In 2012 X contacted A again. He made threats of serious violence, which this time she reported. The local Police and other agencies took these threats seriously, and her local authority carried out some adaptions to her house under its Sanctuary Scheme. I have read a letter from her support worker which summarises that work [C23]. For reasons which I hope are obvious I do not set out the nature of that work in this Judgment. A had to move out of her house whilst the work was undertaken. She understood that it was an expensive operation. She has the continued support of the Police, support workers, her neighbours and her family. Her witness statement refers to the consequences of these matters for her psychological well-being and to her fears and concerns for the future for her son and herself. She has been diagnosed with PTSD, takes anti depressants and has been suicidal. There can be no lack of sympathy for her in the situation she now finds herself.
A receives Housing Benefit. Until the regulations came into effect, that was in a sum equal to her rent. However, as a consequence of the 2012 Regulations A is deemed to be under-occupying the house she and her son live in, for there is a third bedroom. The consequence of the regulations is that her Housing Benefit is cut by 14%, leaving a weekly shortfall of (currently) £12.61. A says that makes this house unaffordable for her because she cannot afford to pay the shortfall from her income-related employment support allowance.
In 2013, with the assistance of her solicitor, she applied for and was granted a Discretionary Housing Payment (a "DHP") for 12 months. This was calculated to cover the shortfall until 31 March 2014 and was paid in full. However, as a result of a loophole in the regulations, A qualified for some transitional protection because she had been in continuous receipt of housing benefit since before 1996 (the "loophole") and in fact her housing benefit was not reduced in the year to March 2014. The DHP payments were made in ignorance of the loophole, and consequently A's rent account went into credit.
That will not be for long. The transitional protection has come to an end, housing benefit has now been reduced by 14%, and the DHP has been cancelled. Consequently the housing benefit A now receives is 14% less than her rent. The DHP "overpayment" will not be recouped. The intention is to set off the resulting credit in her rent account against the current shortfall in benefit. That credit will run out in about March 2015, and A will then have to find a way of mitigating the difference between her rent and her housing benefit, or if she cannot, apply for another DHP. At that stage there is the prospect that A will not be able to afford to remain in the house which has been her home for 25 years, and her son's home for his entire life. She suffers from PTSD, and is understandably concerned about the future, particularly if she has to move out of a house which has the security measures provided by the Police to help protect her from X.
A does not know why she was allocated a three-bedroomed property 25 years ago, when she only needed a two-bedroomed property, but she thinks it was because there was a surplus of 3 bed roomed properties and a shortage of two bed roomed properties. It appears that may still be the case. Ms Gallagher referred me to a newspaper report of the shortage of smaller public sector housing in the area, and the problems this was creating for those who wanted to downsize.
Before I come to the Regulations and the Policy underlying them, I should refer to the evidence about Sanctuary Schemes and DHPs, in particular their nature and use, their funding and the published Guidance.
Sanctuary Schemes
A Sanctuary Scheme provides for the adaption of a property to make it secure. In particular there may be a secured room or space. The safe room provides a place to which the person can retreat if violence occurs or they are in fear of attack whilst they call the police and wait for assistance. The address is 'tagged' on police computer systems to ensure a quick response to a 999 call or the activation of a panic button. Specialist, tailored support is also provided, and A has (what is termed) a "complex package of multi-agency support".
These Schemes have been successfully established across the country since 2006. Even a brief explanation of their aims and scope are sufficient to demonstrate what a good idea they are. One of the obvious benefits is that victims of domestic violence and the like can remain in their own homes (if they want to) rather than being forced out by the fear of violence. Leaving their home as a result of domestic violence can have serious consequences for the stability of their lives. Government statutory homelessness statistics show that domestic violence is consistently reported as the main reason for the loss of a last settled home for 12–13% of homelessness acceptances in England; see the witness statement of Polly Neate of Women's Aid at [C4]. Ms Gallagher submitted that Sanctuary Schemes are a means of homelessness prevention. Whilst the work costs money, it avoids the expense and upheaval of re-housing and (as A's case well illustrates) of losing the support network of friends and neighbours that takes years to build up and which is so important for the continued safety and general well being of people in A's position. It is these people who help provide her with the day to day friendship and sense of community that she needs.
The safe room may or may not be the "extra" bedroom in the house. In that sense this case is different from those cases where the regulations provide that there is a deemed need for (say) two bedrooms, but the circumstances of the tenant are such that in fact there is an actual need for three bedrooms. The problem in this case is that A may need to move from her adapted (safe) home because she will not be able to afford the rent, rather than have an actual need for the extra bedroom.
Ms Gallagher submits that this case has far wider implications than the outcome for A, for this issue will arise in relation to others in Sanctuary Schemes who rely upon Housing Benefit to pay their rent. In 2013, the Rt. Hon. Yvette Cooper MP obtained some information from the Home Office about the numbers of those in Sanctuary Schemes who were affected by these regulations. She has passed that information on to A's solicitor, who produces the information in a spreadsheet [C39–41]. Whilst some local authorities do not have available data, the information which was available showed that there were 5,831 households in Sanctuary Schemes across England as at 30 September 2013. Of those 281 were affected by the operation of the under occupancy provisions in these regulations.
Subsequently the Home Secretary provided some further information in response to a question from an MP which indicated that as at 28 October 2013 there were 7,100 properties adapted pursuant to Sanctuary Schemes; see paragraph 13 of Ms Carrier's witness statement [C170]. That was said to be a rise of 17% on the previous year. The Claimant's case is that the numbers of those affected by the effect of these regulations would also have increased.
For the purposes of this case Ms Carrier made her own enquiries, making requests of local authorities under the Freedom of Information Act. She produces a summary of the responses in an Appendix [C181–2]. Of the 371 local authorities contacted, there were 127 responses from local...
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