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Neutral Citation Number:	2011 UKUT 301 AAC
Reported Number:
File Number:	CH 1073 2010
Appellant:	DH
Respondent:	Kirklees Metropolitan Borough Council and Secretary of State for Work and Pensions
Judge/Commissioner:	Judge J. Mesher
Date Of Decision:	26/07/2011
Date Added:	02/08/2011
Main Category:	Housing and council tax benefits
Main Subcategory:	liability, commerciality and contrivance
Secondary Category:	Human rights law
Secondary Subcategory:	article 13 (redress)
Notes:	Reported as [2012] AACR 16. Housing benefit – liability for housing costs – treated as not liable to former partner – whether applies only where liability arises immediately after separation The claimant was separated from her former husband and living in the matrimonial home. Some 14 years after they separated, she sold her share of the home to her former husband, and claimed housing benefit for rent payable to him. The local authority decided that she was not entitled to housing benefit on the ground that she fell within one or more of the categories in regulation 9(1) of the Housing Benefit Regulations 2006 of persons to be treated as not liable to make payments in respect of a dwelling. The First-tier Tribunal held that she was caught by regulation 9(1)(c), which provides that a person shall be treated as not liable where his liability is to a former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners. That provision is not subject to the exception in regulation 9(3) and therefore can apply to genuine claimants who have no intention of taking advantage of the housing benefit scheme. The First-tier Tribunal stated that it did not matter whether or not there had been other former partners during the relevant period. It also rejected an argument that regulation 9(1)(c) was inconsistent with Article 14 of the European Convention on Human Rights. The claimant appealed to the Upper Tribunal. Before the Upper Tribunal it was argued that regulation 9(1)(c) applied only to an immediate former partner, and that that required the liability to have arisen immediately on their ceasing to be partners. Also, and in addition to the human rights argument, it was submitted that the amending regulations that inserted the predecessor of regulation 9(1)(c) into the 1987 Regulations in January 1999 were invalid on the ground of a defect in the procedure by which the Social Security Advisory Committee (SSAC) agreed not to have the proposal for the amending regulations referred to it under section 172(1) of the Social Security Administration Act 1992 and also because the preamble to the amending regulations stated wrongly that there had been a reference to the SSAC. It was conceded on behalf of the Secretary of State that entitlement to housing benefit was a “possession” for the purposes of Article 1 of Protocol 1 to the European Convention on Human Rights, so that Article 14 on discrimination could be engaged in relation to the conditions of entitlement to housing benefit. Held, dismissing the appeal, that: 1. regulation 9(1) was designed to identify cases in which there was a risk of abuse of the housing benefit scheme, and as the categories may be drawn in a way that could produce rough justice, the narrowest interpretation consistent with the policy of protecting the scheme was required. To interpret regulation 9(1)(c) as applying only to the immediate former partner or the most recent former partner would be going beyond merely adopting the narrowest appropriate ordinary meaning into applying an artificially narrow meaning (paragraphs 15 to 23); 2. it was evident from the relevant documentation that the SSAC had subjected the whole of the draft regulations to close analysis and had not been misled as to the specific effect of what became regulation 9(1)(c), and, whichever interpretation was adopted, the amending regulation introducing what became regulation 9(1)(c) was validly made (paragraphs 30 to 31); 3. in the absence of a report from the SSAC, the mistake in the preamble to the draft regulations could not have misled Parliament in any material respect in any way that could affect the validity of the amending regulations (paragraphs 33 to 36); 4. on the issue of discrimination, while the existence of some alternative response with a narrower scope could be a relevant factor in judging whether any difference of treatment was justified, that must always be subject to a judgment about how far the proposed alternative does the job of meeting the legitimate aim in question. There would be obvious practical difficulties and opportunities for avoidance in the suggested alternative of interpreting regulation 9(1)(c) as applying only where the liability arose immediately on separation of the partners and so a difference of treatment of the kind alleged in the present case was justified as a proportionate response to a legitimate aim and did not amount to discrimination contrary to Article 14 of the Convention (paragraphs 37 to 42).
Decision(s) to Download:	[2012] AACR 16bv.doc [2012] AACR 16ws.doc