The Secretary of State for Work and Pensions v Rachel Hockley
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Lord Justice Hickinbottom,Lord Justice Longmore |
| Judgment Date | 24 June 2019 |
| Neutral Citation | [2019] EWCA Civ 1080 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 June 2019 |
| Docket Number | Case No: C3/2018/0225 |
[2019] EWCA Civ 1080
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
Mrs Justice Knowles, Upper Tribunal Judge Jacobs, Upper Tribunal Judge Hemingway
CH/1987/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Hickinbottom
and
Lady Justice Nicola Davies DBE
Case No: C3/2018/0225
Edward Brown (instructed by Government Legal Department) for the Appellant
Tom Royston (instructed by Child Poverty Action Group) for the First Respondent
Alison Meacher (instructed by Nuneaton and Bedworth Borough Council) for the Second Respondent
Hearing date: 21 May 2019
Approved Judgment
The appeal, brought by the Secretary of State for Work and Pensions in respect of a decision of the Upper Tribunal (“UT”), concerns the interpretation of Regulation B13 of the Housing Benefit Regulations 2006 (as amended). Regulation B13 was introduced with effect from 1 April 2013 by way of amendment of the 2006 Regulations by the Housing Benefit (Amendment) Regulations 2012 (SI 2012/3040) as further amended by the Housing Benefit (Amendment) Regulations 2013 (SI 2013/665). It introduced into social sector housing a cap on housing benefit (“HB”) in cases of deemed under occupancy. It did so by applying what has been described as the size or bedroom criteria set out in Regulation B13.
The issue for consideration in this appeal is: what is a “bedroom” for the purpose of Regulation B13(5)? The size criteria pursuant to B13(5) entitle an HB claimant to “one bedroom for each of the following categories of person” in occupation of the property. The categories are listed (a) to (e) as at the relevant time of the first respondent's determination.
Regulation B13
Regulation B13 of the regulations:
“Determination of a maximum rent (social sector) B13.
(1) The maximum rent (social sector) is determined in accordance with paragraphs (2) to (4).
(2) The relevant authority must determine a limited rent by—
(a) determining the amount that the claimant's eligible rent would be in accordance with regulation 12B(2) without applying regulation 12B(4) and (6);
(b) where the number of bedrooms in the dwelling exceeds the number of bedrooms to which the claimant is entitled in accordance with paragraph (5), reducing that amount by the appropriate percentage set out in paragraph (3); and
(c) where more than one person is liable to make payments in respect of the dwelling, apportioning the amount determined in accordance with sub-paragraphs (a) and (b) between each such person having regard to all the circumstances, in particular, the number of such persons and the proportion of rent paid by each person.
(3) The appropriate percentage is—
(a) 14% where the number of bedrooms in the dwelling exceeds by one the number of bedrooms to which the claimant is entitled; and
(b) 25% where the number of bedrooms in the dwelling exceeds by two or more the number of bedrooms to which the claimant is entitled.
(4) Where it appears to the relevant authority that in the particular circumstances of any case the limited rent is greater than it is reasonable to meet by way of housing benefit, the maximum rent (social sector) shall be such lesser sum as appears to that authority to be an appropriate rent in that particular case.
(5) The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant's dwelling as their home (and each person shall come within the first category only which is applicable)—
(a) a couple (within the meaning of Part 7 of the Act);
(b) a person who is not a child;
(c) two children of the same sex;
(d) two children who are less than 10 years old;
(e) a child,
and one additional bedroom in any case where the claimant or the claimant's partner is a person who requires overnight care (or in any case where each of them is).”
Subsequent to the decisions in R (Carmichael & Others) v Secretary of State for Work and Pensions [2016] UKSC 58 (“ Carmichael”) and Burnip v Birmingham City Council [2012] EWCA Civ 629 further categories have been added to B13(5)(a) to (e) to reflect the findings of the courts, however they postdate the relevant determination in this appeal.
The interpretation of Regulation B13 is the subject of two contradictory three judge decisions of the UT. The first is the Scottish case of Secretary of Work and Pensions v David Nelson and Fife Council and James Nelson and Fife Council [2014] UKUT 0525 (AAC) (“ Nelson”) comprising inter alios Charles J, the Chamber President. The second being the UT decision in this case [2017] UKUT 471 (AAC). There is a further decision, that of the Inner House of the Court of Session, Secretary of State for Work and Pensions v City of Glasgow Council and IB [2017] CSIH 35 (“ IB”).
Social policy background
HB claimants living in the social rented sector previously had no restrictions placed upon the size of the accommodation occupied. The introduction of size criteria for HB claimants living in the social rented sector was intended to replicate or at least reflect the size criteria applicable to HB claimants in the private rented sector. It applies only to working age HB claimants. Its stated purpose is to contain HB expenditure, encourage greater mobility within the social rented sector, make better use of available social housing stock and improve work-incentives for working age claimants. It was intended to provide a mechanism through which there would be a greater incentive to make the most efficient use of available social housing by ensuring a better match between housing need and the accommodation provided to a tenant.
The facts
The first respondent (“RH”) lives with her husband and their two sons (born in December 2004 and December 2006) at 51 Wisteria Way, Nuneaton (“the property”). The property is described in the tenancy agreement as having three bedrooms, however bedrooms two and three are small and awkwardly shaped. The landlord permits a maximum of four occupants. The First-Tier Tribunal (“FTT”) found that the two small rooms are not capable of sleeping two people, even children. RH and her husband sleep in the double room, one boy sleeps in each of the small rooms. There is no spare room. RH works, her husband had to give up work in 2007 on the grounds of ill health. The family income is sufficiently low so as to entitle them to support with their housing costs through HB.
Originally the family's eligible maximum rent at the property was their whole rent. From April 2013 Regulation B13 was applied to them. The local authority decided they had one excess bedroom and reduced their eligible maximum rent and thus their HB by £740 per year. Following the reduction RH applied to the local authority for a discretionary housing payment (“DHP”) to meet the shortfall between rent and HB. Her application was refused. Following her successful appeal to the UT in 2017 RH was granted a DHP for the duration of this appeal.
The decision of the Upper Tribunal
The UT identified the relevant issue, described as the “connection issue”, as being: “Is a room in a dwelling classified without reference to the particular individual or class of individual who may occupy it or must the room in question be one that can be used as a bedroom by the actual occupants or class of occupants?” The UT regarded the connection issue as being distinct from what it described as the “classification issue”, namely whether the room could be used as a bedroom at all.
The UT analysed Regulation B13 as follows:
“9. The regulation operates to reduce the amount of the claimant's otherwise eligible rent by reference to the number of bedrooms in excess of the claimant's entitlement. Paragraph (5) provides that that entitlement depends on ‘the categories of person’ occupying the dwelling as their home. That depersonalises the assessment so that the characteristics of the actual individuals concerned are irrelevant. The first task in applying paragraph (5), therefore, is to identify the individuals who occupy the dwelling as their home and then to place them into the categories listed. That was not in dispute.
10. The argument for the Secretary of State and the local authority was that the next task is to identify the number of bedrooms in the dwelling without reference to the categories of person who would have to occupy them. …
…
12. … First, to us that is not the natural meaning of the language of paragraph (5). On Mr Brown's approach, the paragraph sets up a calculation by reference to the actual occupants as classified into particular categories but then ignores the inevitable characteristics of the categories, such as that they consist of two people or people of a particular age. The paragraph provides that the claimant is entitled to a bedroom for each category. The natural expectation of that language is that the room would be a bedroom for the persons bearing the characteristics of that category, not a room that ignored those characteristics. This leads on to our second reason. If the legislation were to produce the result that Mr Brown and Ms Meacher contended for, it would need much clearer language to show that it was necessary to sever the claimant's entitlement from the characteristics of the categories as set out in paragraph (5). The language does not do that.”
The UT considered but did not follow IB. It did not accept that a decision of the Court of Session was binding upon the UT, further it stated that IB was not concerned with the connection issue. The UT considered the authority of Nelson, it did not accept its analysis and found that the connection issue did not arise...
To continue reading
Request your trial
-
Secretary of State for Work and Pensions -v- JM and Liverpool City Council (HB)
...and that person's partner. ……………………… 23. In the Court of Appeal’s decision in Secretary of State for Work and Pensions v Hockley [2019] EWCA Civ 1080; [2019] PTSR 2246, the Court held: 10 CH/1253/2018 (V) SSWP –v- JM and Liverpool City Council (HB) [2020] UKUT 337 (AAC) i) At [38] that ‘bed......