Lai, R (on the application of) v Secretary of State for Defence [2011] EWHC 145 (Admin)

[2011] EWHC 145 (Admin)Case No CO/6799/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 February 2011
Before
MR JUSTICE OUSELEY
Between
THE QUEEN on the application of BRIGADIER TIMOTHY LAIClaimantSECRETARY OF STATE FOR DEFENCEDefendant
Brigadier Timothy Lai (appeared in person) for in personMr Ian Rogers (instructed by the Treasury Solicitor) for DefendantHearing Hearing dates: 3 rd December 2010
Judgment
[1]The Claimant, a serving Brigadier in the British Army, challenges the decision of the Army Board of the Defence Council on 30 April 2008 to dismiss his application for redress of the complaint he made on 25 July 2006 to the Army Board. The Board’s decision was upheld on 1 April 2009 by Her Majesty the Queen, after the matter was referred to her.[2]In short, he claims that the Ministry of Defence has wronged him through its misinterpretation or misapplication of its policy on what is called Substitute Service Single Accommodation, SSSA. In effect, it had refused to provide accommodation for him when he was posted to the Ministry in Whitehall, on the grounds that he owned a suitable property within sensible commuting distance. That, he said, was an investment property which he had intended to let out to cover the mortgage and other running costs, and he was unfairly treated on account of his private investment decisions by comparison with other officers in a similar posting.

The policy framework

[3]Mr Rogers, for the Ministry of Defence, says that there are no specific Terms and Conditions of Service, TACOS, which bear on the question of accommodation for service personnel. Accommodation is governed by the Tri Service Accommodation Regulations, TSARs, published in the Joint Service Publications, JSP, 464. These are not statutory instruments and “Regulations” is a legal sounding but misleading word for what is the Ministry of Defence’s own policy. The TSARs are very detailed policies dealing separately with Single Living Accommodation, SLA and Service Family Accommodation, SFA. They undergo quite frequent changes, as new situations emerge. JSP 464 describes the TSARs in its Strategic Overview in the introduction to JSP 464 as:
“the overarching and definitive policy source document for the provision of Defence living accommodation and takes primacy on all accommodation matters.”
[4]The immediately preceding paragraph and the first paragraph in the “Strategic Overview” dealt with the provision of service accommodation in this way at the relevant time:
“0101. Provision of Service Accommodation. It is a condition of service in recognition of their inherently mobile lifestyles, frequently remote bases and terms of service that married, married unaccompanied and single Service personnel are provided with a satisfactory standard of accommodation either at, or within an appropriate distance from, their duty unit.”
[5]The essence of the condition has not changed but those in civil partnerships have been added to personnel to be provided with accommodation. The Claimant, who acted in person, put considerable emphasis on that first sentence of paragraph 0101 and in particular on the words “condition of service”. By the time of the events with which this case is concerned, the Claimant was divorced and single.[6]SLA is usually provided in a mess or accommodation block, itself usually within or near a military base. SSSA is provided in accordance with the following policies:
“0205. Guiding Principle. In cases where there is either insufficient or inappropriate SLA, units should seek to provide personnel with substitute SLA which broadly equates to their equivalent SLA entitlement. The following options are available: 0206. Substitute Service Single Accommodation (SSSA) (GB only). Where appropriate SLA is not available, the Services…may authorise the provision of fully furnished and equipped SSSA …which will be sourced, allocated and managed by the MOD Accommodation Agency Contractor. The Authorising Officer is responsible for verifying the non-availability of SLA within a radius of up to 45 minutes travelling time by public transport … of the duty station before approving SSSA. Once authorised, SSSA will be provided within a radius of up to 45 minutes travelling time by public transport … Full details on the SSSA scheme are at Chapter 8”
[7]Further options follow but are immaterial here. It is clear however that it is the existence of a variety of means whereby SSSA is provided which demonstrates the purpose of the words “may authorise”. That language permits the choice of the appropriate option but plainly the guiding principle, together with the condition of service in paragraph 0101, requires the provision of accommodation, albeit chosen from the range of options.[8]Chapter 8 of the TSARs commences with paragraph 0801 which the Claimant submitted fully reflected the fundamental and general obligation in relation to accommodation contained in paragraph 0101. “0801. General. On those occasions where SLA is not available, SSSA will be provided. Whilst the Defence Estates Housing Accommodation Cell in DE Ops Housing will centrally oversee the provision of SSSA by the MOD Contractor, the Services’ chains of command are responsible for approving and funding SSSA. Key documentation pertaining to the SSSA scheme is at the following Annexes:a. Annex A – SSSA Applicationb. Annex B - Licence to Occupy SSSAc. Annex C - SSSA Regulationsd. Annex D - Furnishing and Equipment Specification and Standard – SSSA.” a. Annex A – SSSA Application b. Annex B - Licence to Occupy SSSA c. Annex C - SSSA Regulations d. Annex D - Furnishing and Equipment Specification and Standard – SSSA.”[9]The reference to the role of Annexes supports the Claimant’s contention as to the subordinate implementing role of Annex C.[10]The introduction to Annex C to Chapter 8 continues what the Claimant submits is the same fundamental obligation in these words:
“1. SSSA will be provided by the MOD Accommodation Agency contractor from the commercial rental market on those occasions when there is insufficient Single Living Accommodation (SLA) to meet the demand in accordance with the following regulations. In principle, SSSA will replicate the provision of SLA, however, because of the unpredictability of the commercial rental market, occupants of SSSA should be made aware that there is no security of tenure beyond the first 6 months of the lease. 2. The provision of the SSSA is subject to strict criteria governing entitlement, property specification, furnishing, standard, distance from place of work and indicative rental ceilings set by MOD.”
[11]The critical paragraph in Annex C is paragraph 5 which lists those personnel not entitled to SSSA. This includes those serving outside Great Britain or on temporary duties for whom other provision is made. It excludes cadets in full time education whose accommodation is provided by others, certain specialist RAF personnel, and it avoids the duplication of the obligation in certain specific circumstances.

(d) it provides:

“Personnel who own/part owna property up to 45 minutes travelling time by public transport (or up to 10 miles when there is no viable public transport at the discretion of the Local Service Commander) of the permanent duty station will not be provided with SSSA by MoD. However, such personnel should be aware that they may occupy their property in lieu of SSSA and, in so doing, be entitled to claim the appropriate rate of FIA and daily travelling expenses (but not refunds for utilities, telephone line and equipment rental, TV licence and Council Tax), unless they are married/in a civil partnership or PStatCat2 and the property is their main or family residence. Personnel will not be expected to occupy their property if: (1) The property is uninhabitable because it is undergoing renovation or subject to some other building related work (such as underpinning for subsidence). (2) The property is subject to an existing lease, and early termination would have financial penalties. (3) In these circumstances personnel may be allocated SSSA on the basis that they will occupy their property when it becomes habitable or at the first break point in the lease arrangements.” (1) The property is uninhabitable because it is undergoing renovation or subject to some other building related work (such as underpinning for subsidence). (2) The property is subject to an existing lease, and early termination would have financial penalties. (3) In these circumstances personnel may be allocated SSSA on the basis that they will occupy their property when it becomes habitable or at the first break point in the lease arrangements.”
[12]At the time when the Claimant complained about the application to him of paragraph 5(d) the exclusionary provision from SSSA in that subparagraph was only applied to married personnel if the officer was in receipt of Long Service Advance of Pay, LSAP, which was a grant made to assist in the purchase of property. As he was not in receipt of LSAP, he would have continued to be entitled to SSSA had he remained married rather than divorced.[13]The statutory provisions under which the Claimant’s complaint was dealt with was section 180 of the Army Act 1955. This has since been replaced but the 1955 Act remained in force for the purposes of this complaint. Section 180(1) states:
“(1) If a person subject to military law thinks himself wronged in any matter relating his service he may make a complaint with respect to that matter to such officer as may be prescribed.”
Mr Rogers for the Defendant points out that “wronged” is a concept wider than unlawfully treated.[14]The procedures are laid down in section 180 (5)-(7) as follows:
“(5) An officer to whom a complaint is made or referred under provision made by virtue of subsection (3) above shall grant any redress which appears to him necessary. (6) If the complainant does not obtain redress to which he thinks he is entitled by the procedure referred to in subsection (3) above, he may submit his complaint to the Defence Council in accordance with the procedures laid down in the Queen’s Regulations. (7) The Defence Council shall have any complaint submitted to them investigated and shall grant any redress which appears to them necessary.”
[15]Sub section (8) deals with the further remedy of the report to Her Majesty the Queen, unsuccessfully invoked by the Claimant.

The facts

[16]The Claimant purchased a property in Bath, remote from where he served, for investment purposes and rented it out. Coincidental with notification that he would be posted to Permanent Joint Headquarters Northwood, he formed the view that the time was right to sell the Bath property and to invest instead in property in London. Notification of his posting to Northwood led the Claimant to decide to continue with the sale of the Bath property and to purchase in London as an investment for the longer term, but also to provide accommodation for himself in the shorter term while he was posted to Northwood. His thinking was that living in SLA, “behind the wire” as he put it, on base would be living in a dull suburban environment which for a recently divorced man was a sufficiently unattractive proposition that he was prepared to live for the duration of his posting to Northwood in his investment property in London and to forgo the rental income the while. So he proceeded with its purchase. That was a choice he was prepared to make weighing for himself the loss of rental income against the attractiveness of living away from base.[17]At short notice but it appears before he exchanged contracts for the purchase of the London property, the Claimant was notified that he was to be posted not to Northwood but to the Ministry of Defence in Whitehall. He knew that unlike at Northwood, there was no SLA available for such a posting and that the provision of SSSA would be determined according to the rules set out above which would disentitle him to such accommodation. He knew that the Ministry would contend that the location of the property meant that he would fall within the exclusionary provision in paragraph 5(d) and that he would not be offered SSSA enabling him to let out his new London flat. He continued with his purchase, eventually receiving about £5,000 for legal expenses associated with the purchase. The Claimant knew that in addition to the rental income forgone, the cost to him of living in his own accommodation was rather greater than the ceiling set on what he would have to pay for SSSA in London to cover rent and other expenses. In fact it turned out to be rather greater than he had thought when he decided to continue with the purchase. So there was also an important element of increased accommodation costs which he would have to pay by comparison with officers posted to Whitehall who owned no such property or indeed by comparison with officers who did but were married and not in receipt of LSAP.

The complaint

[18]The Claimant occupied his two bedroom flat in London never having let it out. He complained that the policy embodied in paragraph 5(d) was unfair, inconsistent with the conditions of service which entitled him either to SLA or to SSSA and penalised those who owned property within reasonable commuting distance over those who did not. It penalised one group but not others therefore being posted to London. The cost of SSSA was also rather less than the cost, less allowances, of self provided accommodation. In late 2005 and early 2006 the Claimant raised these issues through the appropriate channels, eliciting considerable words of sympathy and of support from those who dealt with it.[19]Ms Terena Lawton of the Deputy Chief of Defence Staff (Personnel) Ministry of Defence, a C1 Grade Civil Servant employed in the Service Conditions and Welfare Accommodation Policy Team, took the view in June 2006 that the then Lieutenant Colonel Lai “outlines a very compelling case” but she rejected his comparison between SSSA allowances and the costs he incurred because of a range of other allowances for which he was eligible, and the prospect of equity growth potential. She could not justify making an exception in his case because she said he was aware of the exclusion clause, yet persisted in his purchase and so had taken a calculated risk on the comparison of costs aware of the consequences.[20]This led to the Claimant’s formal complaint on 25 July 2006. He put his case on the basis that his exclusion from SSSA was incompatible with the TACOS which he saw as requiring SLA or SSSA to be provided. He said he was not seeking to make a case based on exceptional personal circumstances, but rather on the unfairness and incompatibility of the exclusion in relation to the fundamental obligation or undertaking by the Ministry of Defence to provide accommodation. By January 2007 he was deployed abroad and only persisted in his claim in relation to costs incurred since he was now free to let the property. He estimated the additional costs including rental income foregone on the flat as being £26,577.08 over the period. I thought his further loss figures too remote had this been a contractual claim.[21]In his representations dated 7 October 2007 he was clearly submitting that the exclusion policy in paragraph 5(d) was incompatible with what he saw as a fundamental condition of service that either SLA or SSSA be provided. No rationale for the exclusion had been provided nor for the different treatment of single and married personnel on this point. The exclusion of what he called “local property owners” from SSA was untenable and should be struck down. He had decided to live in his flat when posted to Northwood, accepting the cost consequences to him of doing so because SLA was available at Northwood and it would have been his choice not to occupy it. That choice was removed from him when he was posted to Whitehall and he was compelled to occupy his investment property. It was not just the extra cost of doing so by comparison to the SLA allowance, but the rental income foregone which would have covered his mortgage and other costs. He agreed he had proceeded in full knowledge of how the Ministry of Defence would apply its policy. “But my purchase of a London property was as much a long-term capital investment as a place to live for the limited period of my posting to the PJHQ or the MoD. Irrespective of being obliged to live in the property, it would have been idiotic not to proceed. But that decision was also an entirely private matter that should not have been affected by considerations of ill-conceived regulations. It is also irrelevant that I knew that the regulations would oblige me to live in my flat. Just as one pays an incorrect Mess Bill first and challenges it later, I complied with the regulations as they stood and challenged them subsequently. In so doing, I did nothing to absolve Defence of its obligations. I first enquired about a refund of legal expenses in November 2004, well before my posting was changed. The advice given to me by my Regimental Administration officer was eventually found to be correct, but approval of the refund was only granted in September 2005, by which time I was posted to the MoD, had purchased my new flat and had moved in, in accordance with the SSSA regulations that obliged me to do so. By this time I also knew these regulations to be unfair, and I disagreed with them, but I did not yet understand the extent to which they were ill-founded or the degree to which the case against them was compelling and irrefutable, and I had not determined to challenge them and seek reimbursement.”[22]He had first pursued a refund of his legal expenses when he was due to go to Northwood but only persisted in it after he was posted to Whitehall, when he knew that the MOD would require him to occupy his flat. He did not then fully realise how unfair the TSARs would turn out to be. The refund of legal expenses and challenge to the TSARs were not connected in time or in his mind.

The Board decision

[23]It rejected the Claimant’s interpretation of paragraph 0101 of the TSARs that it was a condition of service that it was the MOD which was obliged to provide the satisfactory standard of accommodation and it then pointed to the significance of the provision that the Ministry “may authorise SSSA” all as context for its conclusion that, subject to exceptions, an individual was disentitled to SSSA if he owned a property within 45 minutes of his place of work, and there was no dispute but that the Claimant did own such a property. Nonetheless the Board said in paragraph 9 of its decision letter:
“In our view, these Regulations should be looked at together. Taking the Regulations as a whole, it seems to us that the MoD is guaranteeing, one way or another, that single Service Personnel will be provided with a satisfactory standard of accommodation within a reasonable distance from the place of work to which he or she is posted. If an individual already owns private accommodation within 45 minutes of his duty station then the MoD will reasonably regard this fact as discharging its obligation to provide satisfactory accommodation. The general principle set out in Paragraph 0101 is subject to the detailed SSSA Regulation and is not inconsistent with it.”
[24]The Army Board thus rejected the Claimant’s contention that paragraph 5(d) of Annexe C to Chapter 8 was inconsistent with a fundamental obligation in the conditions of service to provide either SLA or SSSA. It then endorsed the judgment of Ms Lawton “that the Regulation was properly applied to the Claimant and did not need to be waived on the grounds that its application to him was unfair.” This was because:
“…as Col Lai was aware of the exclusion clause before proceeding with the purchase of the London property, he had knowingly continued with the sale and purchase of his property and he did have the opportunity to choose not to purchase the London property. We cannot detect in this approach any unfairness to Col Lai. Accordingly, under the Regulations, since his property was within 45 minutes of his place of duty, he was not entitled to SSSA.”
[25]The Army Board dealt with the fairness of the regulations themselves because of the distinction between the application of the Rules as between single and married personnel. It said that although such discrimination was not unlawful “…the word “wronged” in Section 180 of the Army Act 1955 is wider than unlawful and in our view if Col Lai was able to prove to us that he had been unfairly treated then we would conclude that he had been wronged in a matter affecting his service.”[26]It rejected the Claimant’s contention that the regulations were unfair because of ambiguity, saying that they were not ambiguous and “…and Col Lai makes perfectly clear that he well knew that under the Regulations he would not be entitled to SSSA when he bought his London property.” It continued:
“One of the key points in our view, though, is that in the Armed Services there are a series of different Regulations and different allowances apply whether or not an individual is single or married.” “…In other words taking just one allowance and comparing it across the spectrum of married and single status does not in our view begin to provide evidence of unfair discrimination.” “One of the key points in our view, though, is that in the Armed Services there are a series of different Regulations and different allowances apply whether or not an individual is single or married.” “…In other words taking just one allowance and comparing it across the spectrum of married and single status does not in our view begin to provide evidence of unfair discrimination.”
[27]The Board did not examine or suggest that the Claimant himself had benefited from a swing to make up for what he had lost on the roundabouts; it thought instead that it was important that the Claimant had purchased the property:
“as much a long-term capital investment as a place to live for the limited period of my posting to the PJHQ or the MoD” and concluded: “We do, however, conclude that Col Lai has not proved to us that he has been the victim of unfair treatment…”

Conclusions

[28]I start with a few observations about the role of the court on judicial review. The court rules upon challenges to Army Board decisions as it would upon any other reviewed decision; it does not have an appeal before it on the merits. If the relevant policies have been properly interpreted, the decision can only be upset, if the Board has misinterpreted what is meant by a person being “wronged” and its power to grant redress; or if it has reached an irrational decision, or ignored relevant considerations, or relied upon the irrelevant. I have not heard argument about the scope of any duty to give reasons, but I would have thought that it too was under a duty to give legally adequate reasons addressing the principal points in issue in the complaint. The Board has no power to set aside paragraphs of the policy with which it might disagree, although the scope of its power to deal with unfairness or arbitrariness in the application of policy by redressing wrong is intentionally broad. The court has not been asked to quash paragraph 5 (d) on the grounds of unlawfulness.[29]It would be very undesirable to prescribe limits to what the Board could conclude was an act which “wronged” serving personnel. It is clearly a word intended to be of wide scope. It is certainly broad enough to enable the Board to give a purposive interpretation to a subparagraph, rather than a black letter lawyerly one which could obscure its real aim. For that purpose it can interpret the policy, as should the court, to give effect to its intent and to avoid a policy covering unfairly cases which the policy was not intended to deal with. The Board can properly interpret regulations to mean serving personnel take a certain amount of rough with the smooth. It can make exceptions to the application of the policy to that same end. The Board’s interpretation and application of policy, in view of its role and experience should be an important guide to the court. I would say no more, without being prescriptive, than that a person was “wronged” if he was treated significantly unfairly or unreasonably as a result of the interpretation or application of a policy.[30]The first point made by the Claimant is that the policy has been misinterpreted, in so far as it disentitles someone in the position of the Claimant from receipt of SSSA. But the argument as to interpretation is in effect an argument that the subparagraph should not be given the meaning it has on its face, because it is inconsistent with what the Claimant says is the fundamental obligation in paragraph 0101, or because the subparagraph is unfair in its effect as between those who invest in property and those who invest in other ways or who just spend their earnings. However, I start with what the TSARs mean.[31]It is not disputed but that it is for the court to rule on the proper interpretation of the TSARs, although the view of the Army Board on their meaning can be a useful source of specialist guidance. The TSARs are not to be construed as statutes, but as policies. I accept that they are changed frequently, as responses to particular problems or situations. They are detailed but not intended to cover with precise forethought all the many situations in which service personnel accommodation needs arise. There is an element of the ad hoc about what they cover, and imprecision in the drafting of what they do cover; for example, I very much doubt that the scope of “uninhabitable” in paragraph 5(d) covers all the causes that would commonly be regarded as making a house uninhabitable, and that the implied and arbitrary distinctions were intended; it is merely that the commonplace causes or ones which the Ministry had actually experienced were covered.[32]I accept Mr Rogers’ submission that the TSARs must be read as a whole, and as what they are, as I have already discussed. I accept that the reference in paragraph 0101 to it being “a condition of service…that…service personnel are provided with…accommodation either at, or [near] their duty unit,” is not a statement taken from some other document of higher authority, but is a policy statement with no greater status by virtue of its source than any other policy in the TSARs. But Brigadier Lai is right to say that this policy states a general rule of fundamental importance to the way service personnel are enabled to perform their duties, and are treated while doing so.[33]I reject entirely Mr Rogers’ submission that paragraph 0101 imposes no obligation on the Ministry of Defence to provide accommodation, but implies an obligation instead on some unnamed body or person, Ministry or personnel or some other to provide accommodation. In reality the obligation could only fall on either the Ministry or the serving personnel. An obligation on personnel to provide their own accommodation, without more, scarcely fits with it being a condition of service, or with the introductory words. The clear obligation is and can only be on the Ministry to provide accommodation or enable its provision, for the sound reasons given in the first sentence of paragraph 0101. The use of the passive voice is not intended to impose or include an obligation on serving personnel, whether in the UK or abroad, to find and fund their own accommodation. That obligation can be met either by direct provision on or near base, or by contracting in the private sector, or by assisting in the purchase of private property. It does not have to be met by accommodation owned by the Ministry. Paragraph 0101 should not, taken by itself, be interpreted as enabling the Ministry to oblige serving personnel to provide their own accommodation whether abroad or in the UK. That fundamental and general position is reflected in Chapter 2, Chapter 8, Annex C, and in the Board’s decision letter as cited in paragraph 22 above. It is clear upon whom the fundamental and general obligation lies.[34]Paragraph 9 of the Board letter makes the same point: although there is no requirement on the Ministry to provide service accommodation, the MoD “is guaranteeing, one way or another, that single Service personnel will be provided with a satisfactory standard of accommodation….”[35]Mr Rogers’ and the Board’s suggestion that the words “may authorise” provide for a discretion to provide or not to provide accommodation is a serious misinterpretation. As I have said, those words reflect the existence of options, but do not include the choice for the Ministry not to provide accommodation. But does that exclude any exceptions? Paragraph 0101 does not state that it is subject to exceptions, but the Regulations have to be read as a whole, and that paragraph has to be read as part of a very much larger series of detailed policies. There is nothing which suggests that this general and fundamental principle cannot be disapplied in defined circumstances. To treat paragraph 0101 as laying down a general rule to which no exceptions are permitted, and to ignore the presence of exceptions in the TSARs, would be a basic error of interpretation, ignoring the need to read the TSARs as a whole.[36]It is clear that subparagraph 5(d) in Annex C is intended to be an exception to that general principle. Chapter 1 leads to Chapter 2 which takes the reader to Chapter 8 and then on to Annex C. The TSARs contain exceptions to the general rule, which on Brigadier Lai’s argument could not be the subject of exception at all, even though he does not suggest that the other exceptions in paragraph 5 are inconsistent with the general obligation, and it is obvious that they can properly be the subject of exception.[37]So I accept Brigadier Lai’s argument that there is a hierarchy of regulations within the TSARs to which subparagraph 5(d) of Annex C to Chapter 8 must be subordinate. There is indeed a general and fundamental obligation on the Ministry to accommodate serving personnel. But that rule, interpreted as part of the TSARs, does not exclude exceptions. Subparagraph 5 (d) of Annex C to Chapter 8 is one such exception to the general and fundamental rule. It is not unlawful by virtue of its very existence. It is merely an exception which is permitted by and incorporated within the Regulations. That does not show precisely how the exception is to be interpreted, but as an exception to the fundamental and general rule, it should be interpreted accordingly.[38]On its face, the subparagraph applies to the position in which Brigadier Lai found himself. It is not ambiguous. It draws no distinction between whether the private accommodation was already purchased and occupied with a view to it being the personal or family residence, regardless of where service was undertaken, or whether the house was purchased with Ministry financial assistance, or through personal means, or was an investment. Brigadier Lai himself acknowledged that in his decision to continue with the purchase despite the disadvantages which he knew would follow. Thus far, the Board’s decision on interpretation cannot be challenged successfully, though I reach the decision by what is to a degree a different route, and an important part of the Claimant’s case fails.[39]I considered the explanation given by Ms Lawton as to why the language in paragraph 0101 had been chosen, without the words “service provided” before “accommodation”. She said that it would not be feasible to provide every serving person with accommodation in view of the large cost and wide variety of housing needs. She pointed to the availability of Long Service Advanced Pay, a grant to assist and encourage personnel to provide their own homes. All of that, to my mind, explains why the Ministry itself does not have to own the property which service personnel occupy, and that accommodation rented as necessary from the private sector or assistance to personnel to purchase their own accommodation can meet the obligation. But all of her evidence in fact demonstrated that, subject to exception, the Ministry did accept an obligation to provide or enable the provision of accommodation to serving personnel. The wide variety of serving circumstances and family situations meant that there was a wide variety of ways in which what I have termed the fundamental and general obligation is met.[40]Brigadier Lai’s further point however, is that subparagraph 5(d) should be given a more nuanced interpretation to reflect its purpose, or an assumed rational purpose, rather than applied in a blanket fashion with all its potential arbitrariness. Mr Rogers submitted that success for the Defendant on the interpretation argument which I have just dealt with was the end for the Claimant’s case, since that was the only point he was still raising.[41]Before turning to the merits of that argument, I shall deal with the difference between the treatment accorded to married couples and single people in these circumstances. On its face there is no rational basis for the now rectified distinction. Indeed, it could well be that the exclusion would more readily apply to married personnel to whom the advantages of a stable home would be obvious. This would warrant exclusion from the provision of accommodation. The Board did not suggest that the distinction had a rational basis of its own, but made the general observation by way of justification for the application of the distinction, that there were swings and roundabouts in the system of allowances, which broadly made the system fair. It did not suggest, however, that what Brigadier Lai had lost on this swing, he had made up on some roundabout, whatever might be the position as a whole for serving personnel.[42]Mr Rogers submitted that Brigadier Lai had chosen not to pursue this point after being warned that the Ministry would incur heavy costs, for which he might be liable, in defending the Board’s position through investigating the various differences between married and divorced or single person’s allowances to show that the Board’s position was reasonable. And that is where matters rest. On a rough and ready approach, the Board may be right. It could conclude that the subparagraph should be given its straightforward meaning, since the application of the TSARs overall to serving personnel overall did not embody some unfairness overall to serving personnel, such as to require a different interpretation to be given to this subparagraph. I am not in a position to gainsay that as a matter of law. More significantly, an irrational distinction between married and single personnel does not have to be resolved in the way most favourable to the serving personnel; it can legitimately be resolved by applying the exclusion to them all. The Board can properly conclude that the Claimant has not been wronged simply because a distinction which should not exist has been resolved one way rather than the other.[43]Reverting to the Claimant’s further contention, I reject the Defendant’s argument that his claim was confined to the argument based on a hierarchy of Regulations atop which stood paragraph 0101 which permitted of no exception. It has always been clear that the Claimant, who for all his acumen was a litigant in person, was contending that the subparagraph was unfair in its application to those such as him who had purchased as an investment the property they were in effect required to occupy, and that the subparagraph should be disapplied or interpreted so as not to apply in such circumstances. It was always clear that his contention was that he had been “wronged” by its application or interpretation to that end, and that was the gravamen of his complaint. The Board fully appreciated that. This was the basis for his contention that the Board’s interpretation of the subparagraph was irrational. The Claimant was not seeking a personal exception based on particular personal circumstances. He was “wronged” by its interpretation or application in that manner, but so were others, now including married personnel.[44]I also reject the Defendant’s contention that it had not had time to investigate the rationale of this Regulation, at least as it applied to those who purchased property as an investment. This was at the very heart of the complaint, was sustained throughout, and remained at the heart of the Claimant’s application for judicial review. Granted that the legal framework of the application by this litigant in person was not all that it might have been in relation to the various ways in which the challenge might have been put, it was nonetheless clear enough that the challenge raised the merits of interpreting the subparagraph so that it did not apply to those whose property near their place of duty was an investment property. It suggested that if it were so applied, those on the end of the exclusion were wronged, that is unfairly treated.[45]The Defendant explained the rationale for subparagraph 5(d) in this way in Mr Rogers’ Skeleton Argument, albeit at a very general level: it would cost too much to house all serving personnel in private accommodation if no service accommodation was available. That cannot be the rationale for the exception, in view of the general ways in which the Ministry provides or assists in the provision of accommodation. It would make no sense, if that were the rationale, to have an exception which would only apply to housing within a particular distance of work, which could readily be circumvented by purchase further out, or which drew no distinction based on means. Such a rationale could the more readily be met by requiring officers above a certain rank to provide for themselves, or to do so in London. I think Mr Rogers offers a perfectly understandable rationale for not requiring accommodation always to be in Ministry owned properties.[46]Mr Rogers also said that the principle behind the exception was that “if a person already owns a property, they can reasonably be expected to live in, the Secretary of State should not have to pay for a rental property in any event.” That is similar to what the Board said at paragraph 9 of its decision, where it referred to the position where an individual “already” owns accommodation within 45 minutes of his place of work. The Board would be well aware that the Ministry, for good reasons of policy, encouraged service personnel to provide their own accommodation and assisted them to do so.[47]At that general level, I have no difficulty with that rationale, and accept why the Ministry would not procure SSSA for someone who already owned accommodation which it was reasonable for him to occupy. It is a simple and readily understood rationale. It is clear that it is reasonable to expect someone to occupy property which has been bought with the assistance of Ministry funds such as LSAP. Where a person has bought his own house for himself and his family, to provide a stable base, there is again no reason why that should not be treated as an exception to the general rule. The policy also deals with someone who has bought property and temporarily let it out; the thinking, not unreasonably, may be that it has been bought to provide a home and should be so used, if reasonably possible.[48]But that rather begs the question of whether it is reasonable for a person to occupy accommodation which he has bought simply as an investment, forgoing the rental income which would cover the mortgage and running costs; these need bear no close relation to his own ability to pay the outgoings. There is no obvious rationale for treating both types of property in the same way, given that other forms of investment are not taken into account, and there is no means related test. There is no obligation on serving personnel under this exception to buy or rent accommodation closer to work. And the absence of distinction is capable of operating in an arbitrary manner as between otherwise identically placed serving personnel, causing some to suffer real financial loss. I suspect strongly that the reason the subparagraph reads as it does, is that this is not an issue which has arisen for consideration, and the blanket provision reflects a lack of thought to what may be a newish phenomenon. This would be consistent with the fairly ad hoc way in which the policies develop, dealing with problems as they arise.[49]As I read the Board’s decision, it recognises that there can be unfairness in the literal application of the exception to such circumstances. I do not exclude the possibility that this Board would have reached a different decision but for the factors which it identified as preventing unfairness to this particular Claimant. It could have done so by examining the rationale for the exception and deciding that as a matter of interpretation, such circumstances were not intended to be covered by the subparagraph, because it would not be reasonable to expect the serving personnel to occupy the accommodation. Or the Board could waive the strict application of the sub-paragraph to avoid a “wrong”.[50]However, it found against the Claimant because it did not think that the application of the exception to him would be unfair because he knew of the exception, and continued with the purchase when he could have backed out and bought an investment property further out; and later he had assistance with the legal fees, some £5000, which he would not have done with a purely private investment, and he has the prospect of gain in the longer term on the investment. He had intended to live in the property when he thought that he would be based at Northwood. There is no doubt those points are factually correct.[51]The Claimant’s riposte was that he had no real choice although he knew the rules, and could take the assistance and complain later that he was unfairly treated by having to forgo the rental income. The fact that he continued with the purchase made no difference to the unfairness of making him live in his investment. The assistance with legal fees was provided after the purchase, and anyway could not offset much of the loss. The Board’s points did not really grapple with the underlying unfairness.[52]The judgment as to whether the application of the exception is fair or unfair so that the Claimant is “wronged” is for the Board. The available grounds for judicial review are limited. The very breadth of the concept of “wronged”, and the Board’s knowledge of the sort of circumstances it has to deal with mean that its view of what is fair is entitled to great weight. The Board did examine what was fair, and did not confine itself to a black letter interpretation of the exception. I see the Board as recognising that the exception could work unfairness to an investment purchaser, as it obviously can. Had it thought that the application of the exception was unfair generally or just to the Claimant, he would have gained redress. It might have reached a different decision had he already been contractually committed to the purchase of the property before being posted to Whitehall.[53]The reasons which the Board gave for holding the Claimant had not been treated unfairly are not unreasonable ones. He did know what the position was, and he did have the opportunity to avoid the consequence by backing out of the purchase, before exchange of contract, and buying elsewhere. He reached his own judgment about that. The arbitrary effect of which he complained, and he may be right, was one he could have avoided at the price of only a modest restriction on where he invested. But he judged the swings and roundabouts for himself, including where he invested, and the prospects of longer term gain there. He also took advantage of the public funds available to assist in the purchase, albeit after the event; but that does go to the swings and roundabouts of what is unfair and requires redress. He was also prepared to live there when based at Northwood, which would have meant that he was willing to forgo the investment income. I appreciate that the posting and accommodation on base were the factors behind that, but in judging whether the Board could rationally conclude that there was no unfairness overall, that is a factor.[54]The Claimant has failed to show that the decision of the Board involved misinterpretation of the Regulations or legal error in its conclusion that he had not been treated unfairly. Accordingly, his claim is dismissed.

Cited in 1 later judgment