Wirral Metropolitan Borough Council v Salisbury Independent Living Ltd [2012] EWCA Civ 84

Case No C3/2011/1470[2012] EWCA Civ 84
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER
CH/3186/2009, JR/131/2010
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/02/2012
Before
LORD JUSTICE MAURICE KAYLORD JUSTICE HUGHESLORD JUSTICE LEWISON
Between
Wirral Metropolitan Borough CouncilAppellantSalisbury Independent Living LtdRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Jenni Richards QC and Josephine Norris (instructed by Weightmans LLP) for AppellantJan Luba QC and Desmond Rutledge (instructed by Lewis Silkin LLP) for RespondentHearing Hearing date: Wednesday 25th January 2012
Judgment
[1]This appeal concerns a procedural aspect of housing benefit. The question is whether a landlord (or, perhaps, some landlords) can exercise an independent right of appeal to the First Tier Tribunal against a decision of the Local Authority, other than in the cases for which specific provision is made by the subordinate legislation.[2]The appellant local authority (“the council”) administers housing benefit in its area. The respondent, Salisbury Independent Living Ltd (“SIL”), is a company limited by guarantee which is in the business in the voluntary sector of providing housing coupled with care, supervision and support to its tenants. It and the council take opposing views as to the proper basis for fixing the housing benefit payable to the tenants. The issues include matters such as: i) whether the accommodation provided does or does not rank as ‘exempt accommodation’, which makes a considerable difference to the manner in which benefit is assessed; ii) whether quite substantial service charges made by SIL are eligible housing costs; iii) whether the determinations by the council of eligible rents are justified or ought to be substantially higher; and iv) how much is due under the ‘Transitional Housing Benefits Scheme’. SIL is concerned to dispute these matters, of course, because the amount of housing benefit which its tenants receive has a direct impact on the rent which it can charge. That is no doubt often true, and for many landlords. But it is particularly so when the tenants are, many or perhaps all, without independent income and/or disadvantaged in various ways. That may well make it unlikely that the tenants will take a pro-active role in contesting the amount of housing benefit with the council, and more likely that they may adopt the stance that what is not paid by way of benefit they simply cannot pay. This dispute between the council and SIL is long-standing and has already involved at least two applications for judicial review and at least one appeal under the legislation then current, all proceedings brought by tenants but supported, funded, and perhaps in reality managed, by SIL. The sums in issue are not inconsiderable. SIL claims that in all there is something of the order of £3m owing to its tenants. The council claims that it owes nothing but rather that there is some £60,000 overpaid.[3]A series of appeals was lodged on or about 13 February 2009 against decisions of the council made on 1 October 2008. In form they appear to have been brought “on behalf of” some sixty odd tenants and in their names. The solicitors acting were SIL’s solicitors. The council objected that at least some of the appeals did not appear to have been adopted by the tenants and it obtained from the judge of the First Tier Tribunal an order requiring that authorities signed by the tenants be lodged, failing which the relevant appeals would be struck out. Signed authorities were duly lodged in relation to all but ten of the apparently appealing tenants. In those ten cases there is no authority and no sign that the tenants adopt the appeals brought in their names. They appear either to have left or not to wish to take part or, in two cases, to have died.[4]SIL then sought to continue the appeals in relation to these ten tenants by applying to be added, or substituted, as appellant in its own right. The First Tier Tribunal judge refused that application, holding that there was no valid appeal to which SIL could be added as a party. On appeal to the Upper Tribunal against that decision, Upper Tribunal Judge Rowland held that: i) SIL had a right of appeal of its own, as landlord, independent of the tenants’ right; and ii) it had already exercised it; and iii) in consequence there was no need for SIL to bring a separate claim for judicial review, even if it could do so.[5]The council appeals the first of those findings with the permission of Judge Rowland. It seeks permission to appeal from this court in respect of the second finding. Neither party questions the third finding. On the first finding, the council’s case is that a landlord only has a right of appeal in distinct cases provided for in the subordinate legislation and that SIL is not within those cases.

The legislation

[6]Housing benefit is payable to qualifying occupiers, not to landlords, under the Social Security Contributions and Benefits Act 1992, and the Housing Benefit Regulations 2006 (2006 No 213) (“the HB Regulations”). A claimant must be liable to make payments to his landlord for accommodation occupied as his home. Eligibility is means tested. The administering authority, usually the Local Authority, has power to determine the amount payable, in accordance with complex rules. The rules are somewhat different for the occupiers of “exempt accommodation” which includes premises provided by a voluntary organisation which also provides care, support and supervision for the occupier.[7]Provision for reviews and appeals on housing benefit issues is made by the Child Support, Pensions and Social Security Act 2000 (“CSPSSA 2000”). Its provisions relevant to this case are found in Schedule 7 (“Schedule 7”) Paragraph 6(3) provides the right of appeal which is here in question:
“6(3) In the case of a decision to which this paragraph applies, any person affected by the decision shall have a right of appeal to the First Tier Tribunal.”
It follows that the critical question is whether SIL is a “person affected by the decision”.[8]The same Schedule 7 contains in paragraph 23 both an interpretation provision and an enabling power, authorising the making of regulations: “23(1) ……. “affected” shall be construed subject to any regulations under sub-paragraph (2)…… 23(2) Regulations may make provision specifying the circumstances in which a person is or is not to be treated for the purposes of this Schedule as a person who is affected by any decision of the relevant authority.” “affected” shall be construed subject to any regulations under sub-paragraph (2)……[9]In the exercise of that latter power, the Housing Benefit and Council Tax (Decisions and Appeals) Regulations 2001 (SI 2001/1002) (“D&A”) have been made. Regulation 1 provides:
“ ‘person affected’ shall be construed in accordance with regulation 3.”
Then regulation 3 provides:
“3(1) For the purposes of Schedule 7 to the Act and subject to paragraph (2) a person is to be treated as a person affected by a relevant decision of a relevant authority where that person is: a) a claimant b) in the cases of a person who is liable to make payments in respect of a dwelling and is unable for the time being to act – i) a deputy appointed by the Court of Protection with power to claim, or as the case may be, receive benefit on his behalf, ii) in Scotland, a tutor, curator, judicial factor or other guardian acting or appointed in terms of law administering that person’s estate, or iii) an attorney with a general power or a power to receive benefit appointed by the person liable to make those payments under the Powers of Attorney Act 1971, the Enduring Powers of Attorney Act 1985 or the Mental Capacity Act 2005 or otherwise; c) a person appointed by the relevant authority under regulation 82(3) of the Housing Benefit Regulations [and similar provisions enabling the appointment of others for persons unable to act] d) a person from whom the relevant authority determines that – i) an overpayment is recoverable in accordance with Part 13 of the Housing Benefit Regulations or Part 12 of the Housing Benefit (State Pension Credit) Regulations; or ii) …… e) A landlord or agent acting on behalf of that landlord and that decision is made under – i) regulation 95…of the Housing Benefit Regulations; ii) regulation 96…of those regulations; iii) regulation 76…of the Housing Benefit (State Pensions Credit) Regulations; iv) regulation 77…of those Regulations. (2) Paragraph (1) only applies in relation to a person referred to in paragraph (1) where the rights, duties and obligations of that person are affected by a relevant decision.”
The relevant subparagraph is thus 3(1)(e) as qualified by 3(2). i) a deputy appointed by the Court of Protection with power to claim, or as the case may be, receive benefit on his behalf, ii) in Scotland, a tutor, curator, judicial factor or other guardian acting or appointed in terms of law administering that person’s estate, or iii) an attorney with a general power or a power to receive benefit appointed by the person liable to make those payments under the Powers of Attorney Act 1971, the Enduring Powers of Attorney Act 1985 or the Mental Capacity Act 2005 or otherwise; i) an overpayment is recoverable in accordance with Part 13 of the Housing Benefit Regulations or Part 12 of the Housing Benefit (State Pension Credit) Regulations; or ii) …… i) regulation 95…of the Housing Benefit Regulations; ii) regulation 96…of those regulations; iii) regulation 76…of the Housing Benefit (State Pensions Credit) Regulations; iv) regulation 77…of those Regulations. (2) Paragraph (1) only applies in relation to a person referred to in paragraph (1) where the rights, duties and obligations of that person are affected by a relevant decision.”[10]The four regulations specifically mentioned in subparagraph 3(1)(e) are provisions under which the housing benefit payable to a claimant either must (Regulations 95 and 76) or may (Regulations 96 and 77) be paid directly to the landlord. In the briefest of terms, benefit must be paid directly to the landlord when either there is already payment of a deduction from income support or state pension credit (as the case might be) directly to the landlord, or the claimant is eight weeks in arrears with his rent. Benefit may be paid directly to the landlord if the claimant asks for that to be done, or if the Local Authority judges it to be in his interests, or if the claimant has moved leaving rent owing. Where a decision is taken either to apply or not to apply any of these four regulations, the landlord is thus given an independent right of appeal against that decision, although not against any other housing benefit decision concerning the same tenant (and thus not, for example, against a decision fixing the amount of benefit). None of those four regulations gave rise to any issue in the ten cases under consideration in the present case. It follows that SIL is not within Regulation 3(1)(e). This much was common ground before us.[11]It is convenient to mention the separate provision which is made for appeals in cases of alleged overpayment. Paragraph 6 of Schedule 7, as well as providing the right of appeal which is directly in issue in this case (subparagraph (3)) also provides, by subparagraph (6):
“6(6) Where any amount of housing benefit…is determined to be recoverable under…section 75…of the Administration Act…any person from whom it has been determined that it is so recoverable shall have a right of appeal…”
The statute there referred to is the Social Security Administration Act 1992 (“the Administration Act”). As we have seen, appeals in overpayment cases by those from whom it is sought to make recovery are also dealt with by Regulation 3 D&A: see 3(1)(d).[12]Overpayment is governed by section 75 of the Administration Act and Regulation 101 of the Housing Benefit Regulations 2006, made under it. The general rule is that an overpayment may be recovered from the person to whom the payment was made; thus it may include a landlord if the payment was made to him under any of the regulations mentioned in paragraph [10] above. There is a separate power to recover payments from a person implicated in any false representation, or in receipt of erroneous overpayments which ought to have been seen to be such. There is also a special provision in Regulation 101(1) preventing recovery from a landlord where the overpayment is attributable to a false representation in which the landlord is not implicated and he himself reported the overpayment.[13]There is no question of SIL falling within the overpayment category of landlords who have a right of appeal as such. Although, as I understand it, the council in this case does contend that it has paid out more than it should have done, it has made no decision attempting to recover any overpayment from SIL.

The issue

[14]Shortly stated, the issue is this. Does Reg 3(1) D&A exhaustively set out those who are persons affected for the purpose of the right to appeal given by paragraph 6(3) of Schedule 7 CSPSSA 2000 ? Or does Schedule 7 paragraph 6(3) have an independent existence creating a wider class of persons affected who are not included in Reg 3(1) D&A, and which catches SIL in this case ?

The legislative history

[15]We were referred to part of the history of Regulation 3(1)(e).[16]In R v Stoke City Council ex p Highgate Projects and R v Birmingham City Council ex p Connolly (1993) 26 HLR 551 the Divisional Court of Queen’s Bench heard two judicial review applications which raised the issue whether the landlords in those cases did or did not enjoy a right to seek a review of housing benefit decisions under the then current legislation. The right to seek a review was given to ‘a person affected’, which at the time was simply defined as “any person whose rights, duties or obligations are affected by [the determination]”. The landlord in the Birmingham case was a private landlord whose tenants were unemployed and had no separate income from which to pay rent not covered by housing benefit. The landlord in the Stoke case was a voluntary sector landlord providing accommodation plus resettlement support and some meals for persons either convicted or at risk of offending. In each case the decisions which the landlords sought to review were decisions fixing the amount of housing benefit payable. The court held that the landlord in the Birmingham case, although he was affected in the general sense that his tenant would only pay what he got in benefit, was not a person whose rights, duties or obligations were affected by the decision for the purposes of the definition. In the case of the landlord in the Stoke case, the court reached the opposite conclusion, apparently on the grounds that its provision of the services which it was making available to the occupiers would or might be affected by the amount of benefit payable. It should be observed that this latter conclusion was not necessary for the decision in the Stoke case, because the court held that the request for review had sufficiently been made by the occupiers acting through the agency of the landlords. Judge Rowland remarked in the present case that the elusive distinction made between the two landlords was difficult to discern. Importantly, neither side sought to support it in argument before us. I agree that the reality is that either both landlords were persons affected because the fixing of the amount of benefit had knock-on effects on what they could in practice charge, or neither was because the rights and obligations as between landlord and tenant were not altered by the fixing of the benefit contribution to what the tenant had to pay. For the moment, the relevance of the Birmingham and Stoke cases is to the argument from legislative history.[17]Within about 18 months of the decision in the Stoke case Parliament legislated to reverse its effect. The Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) No 2 Regulations 1994 (1994 No 2137) altered the definition of person affected to read as follows:
“2(b) ....any person who is: (a) a claimant (b) the appropriate authority (c) the landlord in the case of determination made under regulation 93 or 94; or (d) a person from whom the appropriate authority determines that an overpayment is recoverable… and whose rights duties or obligations are affected by a determination….”
This definition is substantially the same as the one now found (with additions for persons representing claimants unable to act alone) in Regulation 3(1) D&A – see [9] above. As Mr Luba QC pointed out to us, because this definition is substituted into the earlier subordinate legislation, it is preceded by the words “person affected means:…”, whereas the current Regulation 3(1) is introduced by the words:
“..a person is to be treated as a person affected where....”
. I will consider that difference below. (a) a claimant (b) the appropriate authority (c) the landlord in the case of determination made under regulation 93 or 94; or (d) a person from whom the appropriate authority determines that an overpayment is recoverable… and whose rights duties or obligations are affected by a determination….”[18]Judge Rowland accepted the construction advanced for SIL. He found that irrespective of the contents of Regulation 3(1) D&A, the landlord could bring itself within the undefined words of paragraph 6(3) in Schedule 7 and that it was thus a person affected.[19]The Judge did not, as previously observed in [16] above, rely on the Stoke case or the distinction between different groups of landlords there made. Further, he rejected the argument from legislative history on the grounds that the intention to reverse Stoke (which he accepted had underlain the 1994 legislative response) might not have persisted into 2000. The CSPSSA 2000, as he observed, was no mere consolidating statute. Rather, it introduced a new regime for a system of independent appeals in place of internal reviews, and it introduced a new exception preventing the recovery of overpayments from the landlord where he was innocent of any false representation and had himself drawn attention to the possible overpayment (see [12] above). The judge drew attention to the slightly different wording of the introductions to the definition provisions – see [17] above.[20]Judge Rowland categorised the interpretation advanced by the council as a non-literal one, and that put forward by SIL as a literal construction. In doing so, and in his conclusion, he drew support from a decision of Mr Commissioner Mesher, as he then was, in CH/3817/2004. There, the would-be appellant was a tenant’s partner, or ex-partner. For reasons which are irrelevant to the present case, her attempt to appeal failed on the ground that the Local Authority had not made any valid decision capable of being appealed. But the Commissioner made it clear that if this had not been so he would have held that she was qua partner a person affected within paragraph 6(3) of Schedule 7. Of the argument that she could not be because Regulation 3(1) D&A provided an exhaustive definition, he observed that in promulgating that Regulation the Secretary of State had only exercised part of the enabling power given by paragraph 23(2) of Schedule 7 ([8] above). Regulation 3(1) D&A only provided, he said, for those who were to be treated as persons affected. It did not purport to provide, he said, who was not to be so treated. Therefore, he said, the breadth of paragraph 6(3) Schedule 7 CSPSSA 2000 was unlimited. Judge Rowland in the present case agreed, and Mr Luba’s essential submission is that both of them were right.[21]Judge Rowland made it clear that he might well have accepted the construction of the legislation for which the council contended, had that not, in his view, given rise to “manifest unfairness” to SIL in not allowing its case on the dispute between it and the council to be argued.

Conclusion

[22]I differ with some little hesitation from the very experienced specialist views of Judge Rowland and Judge Mesher, but I have come to the very clear conclusion that the legislation cannot be read as they held it should be.[23]I do not agree that it is SIL’s reading of the legislation which is the literal one. In my view, the ordinary meaning of the legislation, taking statute and Regulations together, is that the statute (CSPSSA 2000, Schedule 7) anticipates a definition of ‘person affected’ being given in Regulations, and the D&A Regulations then provide it in terms which are exhaustive. The format of Regulation 3(1) D&A is entirely commonplace. The principle of construction can be given the Latin tag expressio unius exclusio alterius, but it is equally simply explained by the ordinary proposition that when a legislative provision sets out who or what is within the meaning of an expression, it ordinarily means that no-one else or nothing else is. If it wishes to say that its provisions are other than exhaustive, it usually says so, in terms such as “Without prejudice to the generality of the expression….”, or “The following are included in …..”, or “In construing the expression….the court shall have regard to all the circumstances including…..” Mr Luba did not significantly dispute that this is the correct approach to the construction of Regulation 3(1) D&A. His submission is not that SIL can be fitted into Regulation 3(1). Rather, it is that paragraph 6(3) in Schedule 7 to the statute has an independent life. The real question in this case thus boils down to whether one should read the statute and the subordinate legislation together, or whether, as he submits, the start and finish of the case is the statute, and the subordinate legislation does little more than put some obvious categories of ‘person affected’ beyond doubt, leaving others to be governed by the more general words of paragraph 6(3).[24]It seems to me that the statute and the subordinate legislation are very plainly interdependent.[25]Schedule 7 to the CSPSSA 2000 was not brought into force immediately, except for the enabling power in paragraph 23(2). All the rest of it was made to wait until the D&A Regulations had been passed and it came into force with them on 2 July 2001.[26]The related provisions setting out the rules for overpayment recovery ([11] and [12] above) are instructive and tend to show interdependence. The class of persons consisting of those from whom a Local Authority determines that an overpayment ought to be recovered is dealt with both in paragraph 6(6) of Schedule 7 and again in Regulation 3(1)(d) D&A. Paragraph 6(6) simply speaks of those from whom recovery is sought under the statute. Regulation 3(1)(d) provides a more particular definition of the class by reference to Part 13 of the Housing Benefit Regulations, which is where Regulation 101 ([12] above) is found. There does not, however, appear to be any group of persons who are within paragraph 6(6) but not within Regulation 3(1)(d). The two statutory provisions are describing the same people.[27]Paragraph 6(7) of Schedule 7 provides for notice of decisions to be given to those who have a right of appeal against them. The statute, however, does not make any further provision for the content of the notice; rather, it contemplates that subordinate legislation will do so. It says:
“6(7) A person with a right of appeal under this paragraph shall be given such notice of the decision in respect of which he has that right, and of that right, as may be prescribed.”
In the D&A Regulations, regulation 10 deals with notice of decisions. It says:
“10(1) A person affected who has a right of appeal against a relevant decision shall be given written notice – (a) of the decision against which the appeal lies; (b) in a case where that notice does not include a statement of reasons for the decision, that he may…request…a written statement of the reasons…; and (c) of his right to appeal against that decision.”
This is a little more prescriptive. But detailed provisions for the content of notices of decisions are found in the principal subordinate legislation governing housing benefit decisions, the Housing Benefit Regulations 2006. In those, Regulation 90 requires the local authority to notify in writing “any person affected by a decision made by it under these Regulations.” Further, Regulation 90 requires the notice to comply with Schedule 9. When one goes to Schedule 9 one finds 15 paragraphs setting out the differing contents required of notices for differing kinds of decision. For decisions on quantum of benefit, they may include much information which is very personal to the tenant, such as his earnings or other income (paragraph 10), the income or capital of his non-dependant associates (paragraph 13) and his income support entitlement (paragraph 9). Where however the decision is either to apply or not to apply the regulations which require or allow direct payment to the landlord ([10] above) the notice will contain only the information germane to that decision, and not other details relating to the financial circumstances of the tenant (paragraph 11). (a) of the decision against which the appeal lies; (b) in a case where that notice does not include a statement of reasons for the decision, that he may…request…a written statement of the reasons…; and (c) of his right to appeal against that decision.”[28]It might theoretically be possible for these three legislative provisions for notice of decisions to apply to differing, if overlapping, groups of persons. But it is beyond question that they must be read together. Specifically, it is plain that the expression “person affected” must mean the same in all three of them. The most particularised provisions, in regulation 90 and Schedule 9 of the Housing Benefit Regulations, apply to all “persons affected” and by Regulation 2 of those Regulations that expression “is to be construed in accordance with” Regulation 3 D&A. Moreover, in Regulation 10 of the D&A itself the expression “person affected” means a person who falls within Regulation 3. No one falling outside Regulation 3 is entitled to receive notice under Regulation 10. That seems to me to complete the circle of the three sets of provisions. Moreover, if it were otherwise, and if the general provision in paragraph 6(7) of Schedule 7 were, via paragraph 6(3), to bring within those with a right of appeal ‘persons affected’ other than those mentioned in Regulation 3 D&A, then either there would be no provision for the contents of the notice required for such people, or, if Schedule 9 applied, the landlord who had a right of appeal would be entitled to be told the personal financial circumstances of his tenant. Mr Luba’s principal submission, that paragraph 6(3) of Schedule 7 had a life independent of the D&A Regulations, led him inexorably to the submission that although paragraph 6(7) contemplated that there would be subordinate legislation requiring notice of decision, no such delegated legislation had been promulgated and there was accordingly no provision for notice in such cases. That is, in my view, a highly strained reading of the legislation, which is immediately overcome if the statute and the regulations are read together.[29]Similar considerations apply when one looks to the mechanics of appeal. Starting, once again, with Schedule 7, paragraph 6(8) says:
“Regulations may make provision as to the manner in which, and the time within which, appeals are to be brought.”
That leads one to the D&A Regulations. They provided, in their original form, by Regulation 18, a primary time limit for appeals of one month from notification of the decision. Since the creation of the First Tier and Upper Tribunals by the Tribunals, Courts and Enforcement Act 2007, the rules are now to be found in the general rules for the First-Tier Tribunal, the Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008, but the time limit is still one month from notice of the decision: rule 23 and Schedule 1. Mr Luba accepted that his principal submission drove him to the conclusion that because there is no provision for notice to persons within Schedule 7 paragraph 6(3) but not within Regulation 3 D&A, it followed that there was no time limit for the right of appeal which he claims for SIL, or for any other landlord in a similar position. That, he submitted, is simply an unappreciated legislative lacuna. Much the better explanation of the position is that there is no such lacuna because the statute and the regulations must be read together, and Regulation 3 D&A provides the exhaustive definition of ‘person affected’ which the Act clearly anticipated would be provided.[30]SIL’s case depends on the submission that Regulation 3 D&A exercises only half of the powers with which the Secretary of State was clothed by paragraph 23(2) of Schedule 7 to the CSPSSA 2000. It was suggested that the Secretary of State had deliberately chosen to stipulate who was within the meaning of ‘person affected’ but not to say who was not. Said Mr Luba, he has chosen to add to the class but not to narrow it or subtract from it. That ingenious analysis seems to me, first, to ignore the plain fact that SIL’s claim in this case is a claim to be added. Second, the first person specified is the claimant himself, who is plainly not an addition. The submission that the Secretary of State was simply making assurance doubly sure is not convincing. Thirdly, there was no point in both listing those who are included and those who are excluded, for that would be likely to leave an indeterminate and undefined group in the middle whose status would be unclear. The form of the enabling power is simply, as Ms Richards QC submitted, one which gives the Secretary of State a wide discretion as to which method of defining those entitled he would adopt. There was absolutely no point in formulating Regulation 3(1) as it is but yet leaving a residual and undefined class of persons affected who have a right of appeal. Still less, as a matter of construction, can the regulation be read as doing such a thing without adverting to the existence of the residuum.[31]The presence of Regulation 3(2) D&A is, to my mind, some further indication that the terms of Regulation 3 are exhaustive. The confinement of a right of appeal to persons whose rights, duties or obligations are affected by the decision goes back a very long way in the legislation, as the statutory provisions under consideration in the Birmingham and Stoke cases show. On SIL’s construction, however, that limitation, now found in Regulation 3(2), would cease to apply to the residual category of those with a right of appeal deriving directly from paragraph 6(3) of Schedule 7, for by its terms 3(2) applies only to those within 3(1). I can see no purpose in such a consequence.[32]True it is that Regulation 3(1) uses the expression “is to be treated as” when it might have used the formulation “a person affected means…”. That is a legitimate consideration and if all other things were equal might carry weight. It cannot, as it seems to me, prevail over the very clear intention that the statute and the regulations together formed part of what was intended to be a consistent legislative framework.[33]For my part I accept Judge Rowland’s observation that one cannot necessarily assume continuity of legislative purpose between 1994 and 2000. If, however, there had been a significant change of policy to reverse the 1994 position and not only to restore Stoke but also to undo Birmingham, one would have expected something other than adoption of virtually identical language in the new Regulation 3(1). It seems to me that the fact that there has been no legislative intervention following Mr Commissioner Mesher’s obiter observations in CH/3817/2004 is simply neutral.[34]The key to

Judge Rowland’s decision seems to me very clearly to lie in paragraph 33 where he said:

“I might have been persuaded to accept Ms Richard’s submission if I had been sure that there was another way of avoiding what seems to me to be the manifest unfairness of not allowing SIL to argue its case even thought the local authority’s decisions may ultimately be upheld.”
He went on to give active consideration to a number of procedural devices by which SIL as landlord might be assisted to obtain the co-operation of its tenants. They included the suggestion that the local authority might use its social security or council tax files to help to trace any tenant who had moved away and/or using its best endeavours to persuade tenants to authorise SIL to act on their behalf in bringing an appeal. It may well be that a similar consideration, when applied not to a claimant’s landlord but to his partner or especially an ex-partner, underlay the decision of Mr Commissioner Mesher in CH/3817/2004.[35]For my part I was initially similarly concerned at the prospect of there existing a dispute which was in commercial reality one between SIL and the council for which there was no forum. On further consideration, however, the pragmatic considerations mentioned are by no means so clear or one-sided.[36]Housing benefit is a benefit for occupiers, not for their landlords. Of course there are knock-on effects on landlords, especially those who make it their business to accommodate mostly or entirely occupiers who are dependent on benefit. But it does not follow that such a landlord has a legitimate claim to his own right of appeal without the co-operation of his tenant. To the extent that his interests and those of the tenant coincide, the tenant is likely to authorise him to act as his agent. If they do not, it is not unfair that the tenant should prevail. There is of course a risk that the tenant may move away, but if that imposes a practical requirement on SIL to spot any issue and obtain his co-operation whilst he is still present, that does not seem to me to be unfair. In the present case, the generic issues between SIL and the council can and will be litigated in the fifty remaining appeals in which the tenants have authorised the landlord to act for them. It is true that that will not result in back payments for the ten missing tenants if SIL succeeds in its arguments, and it seems to be true that those sums could be appreciable because it is claimed that underpayments go back a long time. Whether SIL could have brought the issue to a determination sooner is not a topic on which we were addressed.[37]If SIL is a person affected, then it would follow that a great number of landlords would similarly be able to claim a right of appeal under paragraph 6(3) of Schedule 7, independently of, or indeed against the opposition of, their tenants. As was recognised in argument before us, it is not possible to limit such a right to voluntary sector landlords providing additional services, as Stoke appeared to suggest. Nor could it be confined to those whose tenants were wholly dependent on benefits. The legislative lacuna for notice would have to be filled and the consequence would be that every Local Authority would have to give notice of every decision on the quantum of housing benefit to every landlord. It is far from clear that the Local Authority would always know who the landlord is. Even if it did, that duty would carry with it the obligation on the Local Authority to reveal to the landlord the tenant’s private financial information, for without it the correctness of the decision could often not be determined.[38]All this leads me to the conclusion that the categories of person affected have been actively and exhaustively considered by the framers of the D&A Regulations. In the absence of further expansion of them, it is not possible to read the legislation as the judge did, nor do the pragmatic concerns which moved him sufficiently plainly call for a strained construction. I would accordingly allow the council’s appeal and restore the decision of the First Tier Tribunal that SIL is not a party to any of these sixty appeals, although it can of course act on behalf of all but the ten missing tenants.[39]The council had a secondary ground of appeal which does not, on that conclusion, arise. It contended that Judge Rowland was wrong to hold that SIL had in fact exercised the right of appeal which he held it had. If I had thought that the judge was correct to accord SIL a right of appeal, I should unhesitatingly have agreed with him that it was open to him to enable it to exercise such right by extending time, and that this was a sensible thing to do. If therefore the council had not succeeded on its first ground, I should not have allowed its second ground. Lord Justice Lewison:[40]I agree.

Lord Justice Maurice Kay:

[41]I also agree.

Cited in 3 later judgments