Cotton & Ors, R (on the Application of) v Secretary of State for Work and Pensions & Ors [2014] EWHC 3437 (Admin)

Case No CO/4296/2013[2014] EWHC 3437 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/10/2014
Before
THE HONOURABLE MR JUSTICE MALES
Between
THE QUEENClaimantsOn the application ofClaimantKIM COTTONClaimantMARK HUTCHINSONClaimantSIMON COHENClaimantSECRETARY OF STATE FOR WORK AND PENSIONSDefendantNEW FOREST DISTRICT COUNCILInterested PartiesDERBY CITY COUNCILInterested PartyCOTSWOLD DISTRICT COUNCILInterested Party
Ms Nathalie Lieven QC and Mr David Blundell (instructed by Liberty) for ClaimantsMr Jason Coppel QC and Mr Edward Brown (instructed by the Treasury Solicitor) for DefendantHearing Hearing date: 15 th October 2014
JudgmentMr Justice Males :Introduction
[1]The Housing Benefit (Amendment) Regulations 2012 have been and remain controversial. They give effect to what the defendant Secretary of State for Work & Pensions calls the removal of the "spare room subsidy" and their opponents call the “bedroom tax". There have already been several legal challenges to aspects of the Regulations. The present case is concerned with their impact on divorced or separated parents who look after their children under shared care arrangements whereby the children alternate between living with each parent.[2]The 2012 Regulations deal with housing benefit payable to claimants of working age who occupy social sector property. They provide for housing benefit to be paid according to the number of bedrooms to which a claimant is entitled, with entitlement determined according to a formula (“the bedroom criteria”). The formula includes a bedroom for a child (or in some cases, two children sharing a bedroom) who occupies the claimant's dwelling as their home. However, only the parent who has responsibility for the child is entitled to claim for the child’s bedroom. Only one parent can have such responsibility and, under the Regulations, when the child spends equal time with each parent, that is the parent to whom child benefit is payable.[3]What this means is that any housing benefit payable to the other parent (whom I shall describe as having secondary responsibility, although that phrase is not used in the Regulations) is assessed on the basis that he (it usually is he, although not always) is not entitled to the bedroom used by the child which is deemed by the Regulations to be unoccupied. Where there is one such bedroom, the benefit payable to the parent with secondary responsibility is reduced by 14%. Where there are two such bedrooms, the reduction is 25%. Similar bedroom criteria have existed for private sector tenants claiming housing benefit since 1996.[4]The claimants are all parents who are either divorced or separated from the other parent of their children and look after their children under shared care arrangements. They each receive housing benefit. The children alternate between living with each parent, spending approximately half their time with each and having their own bedroom at each premises. In each case the housing benefit payable to the claimants, the parents with secondary responsibility, has been reduced as a result of the Regulations with effect from 1 April 2013, although so far at any rate the shortfall has been made up by the payment of discretionary housing payments (“DHPs”) from the claimants' local authorities.[5]The claimants’ case is that the amendments to housing benefit introduced by the 2012 Regulations are unlawful on three grounds, namely that they are:a. a breach of Article 8 of the European Convention on Human Rights;b. a breach of Article 8 of the Convention read with Article 14; andc. irrational

The facts

[6]The first claimant, Ms Kim Cotton, lives in a three-bedroom house provided by her local authority, New Forest District Council. She has two children, a twelve-year-old daughter and a ten-year-old son. Ms Cotton and the children’s father separated five years ago and divorced four years ago. Initially the children lived with Ms Cotton full time but they stayed with their father every other weekend.[7]In September 2011 Ms Cotton’s ex-husband applied for custody of the children. In February 2012 Southampton County Court made a shared residence order providing that the children should reside for one week at a time with each parent. The order recorded that this would be in the best interests of the children. This arrangement was put into effect. From July 2012 Ms Cotton received child benefit for her daughter, while her ex-husband received child benefit for her son. The residence order was confirmed and continued in November 2012.[8]The result of these arrangements was that Ms Cotton had responsibility under the Regulations for her daughter, but not for her son. Accordingly, from 1 April 2013 she was entitled to claim housing benefit calculated by reference to the bedroom which her daughter occupies, but not her son's bedroom. This meant a reduction of 14%, which amounts to £13.28 per week. However, in August 2013 Ms Cotton became the primary carer of both her children. There is no evidence as to why this happened – for example, whether for some reason the shared care arrangement was not working or because circumstances changed. As a result Ms Cotton’s housing benefit was reinstated to its pre-April 2013 level.[9]During the entire four or five month period when her housing benefit was reduced, Ms Cotton’s local authority the New Forest District Council made up the shortfall by payment of DHPs. Accordingly she suffered no net loss of income at all.[10]Ms Cotton’s evidence is that without the payment of DHPs she would not have been able to afford the cost of her rent while continuing to feed her children, and that moving into a smaller property, even if one was available, would have meant that the shared care arrangements ordered by the court could not have continued. That may be so, but in the event the payment of the DHPs meant that it never had to be put to the test. In these circumstances Ms Cotton’s claim is clearly academic.[11]The second claimant, Mr Mark Hutchinson, lives in a three-bedroom house provided by Derby City Council. He has lived in the property since 2006. Before that he was homeless and was allocated the house on the basis that it was the only property available at the time. It was in a state of serious disrepair, but has since been refurbished by the council. He has a nine-year-old daughter and a ten-year-old stepson, for whom he has taken on a parental role since birth. Mr Hutchinson and the mother of the two children separated before his daughter was born in 2006. After his daughter’s birth, by agreement with the children’s mother, both children were ordinarily resident with Mr Hutchinson. Their mother saw them for a couple of days each week.[12]In 2009 the children’s mother entered into a new relationship and decided that she wanted them to live with her and her new partner. She and Mr Hutchinson agreed that both children would reside with her during the week and would stay with him at weekends and during school holidays. This arrangement has been in place since 2009. Child benefit for the children is paid to their mother.[13]Accordingly Mr Hutchinson has only secondary responsibility for the children and under the 2012 Regulations their bedrooms in his house are deemed to be unoccupied. As a result, from 1 April 2013 his housing benefit was reduced by 25%, a reduction of about £29 per week. However, he has since April 2013 been in receipt of DHP funding. This was initially granted upon application to his local authority at approximately three-monthly intervals. Apparently there have been some periods when these payments were not consistently received, but it appears that this was because Mr Hutchinson struggled to keep up to date with his applications for DHPs. This has resulted, in recent months, in him incurring rent arrears. He has now been approved for a one-year grant of DHP funding.[14]Mr Hutchinson’s only income during this period has been £71 per week contribution-based Employment and Support Allowance. He is currently unable to work due to depression and back problems and relies on ESA and Personal Independence Payments as his only sources of income. He has looked for alternative properties but says that he has not found anything suitable. As I understand his evidence, what he means by this is that although he would be able to move to a one-bedroom property, this would have the consequence that the current shared residence arrangement could not continue and he would have less contact with the children.[15]The third claimant, Mr Simon Cohen, lives in a two-bedroom house provided by Fosseway Housing Association Limited, a registered social landlord. He has lived in the property for approximately three years. Before then he was staying in a hostel for the homeless. He has a thirteen-year-old son. He and the boy’s mother separated when the boy was two years old. By mutual agreement, residence is shared on a roughly equal basis between Mr Cohen and the boy’s mother. His son usually stays with him from Thursday to Sunday each week during term time and for at least half the time during school holidays. Child benefit for Mr Cohen’s son is paid to the mother.[16]Under the Regulations the son’s bedroom was deemed to be unoccupied and Mr Cohen’s housing benefit was reduced by 14%, a reduction of £14.51 per week. However, like the other claimants, Mr Cohen has been in receipt of DHPs from his local housing authority, the Cotswold District Council, since April 2013, apart from a two-month gap in October and November 2013 resulting from problems with the application process. He has received temporary grants of DHP for which he has to reapply every few months. His most recent grant will expire on 2 November 2014. The local authority has indicated that DHPs were granted pending the outcome of this claim for judicial review. It may be, therefore, that these will not continue should this claim be unsuccessful.[17]Mr Cohen is at present unable to work and is in receipt of contribution-based Employment and Support Allowance and lower rate Disability Living Allowance. He received some charitable assistance in order to furnish his house with such items as carpets and white goods. His evidence is that without the DHPs, he would be unable to afford his rent and that even before 1 April 2013 he had started to cut down on food and drink and to turn off the heating when his son was not staying with him. He says that if he had to move to a smaller property where his son could not stay with him, that would be likely to have a serious effect not only on his own health (he has had mental health problems and has struggled with ME in the past), but also on his son's emotional well-being.[18]There is no evidence about the housing arrangements of Ms Cotton’s ex-husband during the limited period when her housing benefit was reduced (or indeed at all) or those of the ex-partners of Mr Hutchinson or Mr Cohen. If they are in receipt of housing benefit, they will each have been assessed on the basis that they are entitled to a bedroom for the child or children concerned.

Summary of the factual position

[19]In each of these cases (although in the case of Ms Cotton only for the limited period from April to August 2013) the position can be summarised as follows:a. The children were living with each parent, with a bedroom at each parent's home, on a regular and ongoing basis. These are not cases of occasional overnight stays. From the children's point of view, it seems likely that they would regard themselves as having two homes, one with each parent, with a bedroom of their own at each.b. Although there is no detailed evidence about this, it is very likely that these arrangements are in the best interests of the children. That was decided by the court which made the order in Ms Cotton’s case (possibly despite opposition by one or both of the parents) even though, for whatever reason, the arrangement ended in August 2013. In the case of Mr Hutchinson and Mr Cohen the arrangements are voluntary, but it seems obvious that it is in the best interests of the children if they are able to enjoy family life with both parents. That is likely to promote their well-being and their social and psychological development.c. If DHPs were to be withdrawn from Mr Hutchinson or Mr Cohen, there is at any rate a risk that they would be unable to continue to live in their present accommodation, and therefore that the current arrangements could not continue. Whether that would in fact happen would depend upon circumstances as they exist at whatever time in the future when DHPs may be withdrawn. It is possible that the claimants' circumstances, for example their ability to work or the funding available to them, may change. Indeed it is possible that their relationship with the children, or perhaps with a new partner, may change. All that is in the future and is speculation. However, if their circumstances remain as they presently are, the risk that the current arrangements could not continue in the absence of DHPs and that this would have an adverse impact on the claimants and on the children appears to be high.d. Nevertheless, if that were to happen it is not suggested that the withdrawal of DHPs and the cessation of the existing arrangements would end the claimants' relationship with their children. The claimants would be able to continue seeing their children and overnight stays would in all probability be possible from time to time, although the children would no longer have a bedroom of their own with Mr Hutchinson or Mr Cohen and would no longer be able to live on a regular basis with them.e. However, the fact is that the claimants have been receiving DHPs (save, it appears, for limited periods when Mr Hutchinson or Mr Cohen did not make the correct application). Consequently they have suffered no net loss of income at all as a result of the changes to housing benefit. All that has happened is that instead of receiving housing benefit as of right, they have received the same net amount made up by(i) a reduced amount of housing benefit plus(ii) DHPs making good the reduction. I accept that the possibility that DHPs may be withdrawn in the future has been a source of anxiety for Mr Hutchinson and Mr Cohen, and perhaps also for any of the children who are old enough to understand the position, but as of now that is the most that can be said, at any rate in the case of these particular claimants.

Discretionary Housing Payments

[20]It is apparent, therefore, that the regime for payment of DHPs is of particular importance. These are provided for by the Discretionary Financial Assistance Regulations 2001 (SI 2001/67) which confer on local authorities a broad discretion to provide financial assistance to persons entitled to housing benefit who appear to require some further financial assistance in order to meet their housing costs. The Secretary of State published a Guidance Manual and Good Practice Guide in April 2014, offering advice to local authorities on how DHPs:
“can be used to provide support to claimants affected by some of the key welfare reforms, including: • the benefit cap; • removal of the spare room subsidy in social rented sector; • reductions in local housing allowance.” • the benefit cap; • removal of the spare room subsidy in social rented sector; • reductions in local housing allowance.”
[21]The Guidance provides, in paragraph 2.3, that a DHP can be used to cover a shortfall as a result of reductions in housing benefit as a result of the changes introduced by the 2012 Regulations. It does not expressly refer to cases of shared responsibility for children of separated parents, but does include a requirement (or possibly a request) that local authorities should keep records of the intended outcome on which DHPs are awarded. Thus paragraph 7.10 of the Guidance states:
“Additionally you should record the intended outcome when making an award. The outcomes are broadly grouped into the areas that cover the policy intention of DHPs: • To help secure and move to alternative accommodation (e.g. rent deposit) • To help with short-term rental costs until the claimant is able to secure and move to alternative accommodation • To help with short-term rental costs while the claimant seeks employment • To help with on-going rental costs for disabled person in adapted accommodation • To help with on-going rental costs for foster carer • To help with short-term rental costs for any other reason.” • To help secure and move to alternative accommodation (e.g. rent deposit) • To help with short-term rental costs until the claimant is able to secure and move to alternative accommodation • To help with short-term rental costs while the claimant seeks employment • To help with on-going rental costs for disabled person in adapted accommodation • To help with on-going rental costs for foster carer • To help with short-term rental costs for any other reason.”
[22]Only two of these bullet points are concerned with ongoing payments, namely payments for a disabled person in adapted accommodation and for foster carers. (In fact these two categories are now expressly dealt with in the Regulations as a result of amendments made to the 2012 Regulations by the Housing Benefit (Amendment) Regulations 2013). Ms Nathalie Lieven QC for the claimants submits that if DHPs are successfully to mitigate the reduction in housing benefit for parents with secondary responsibility, what is needed are ongoing and not merely short-term payments. She submits that the absence of any reference to cases of shared care in the Guidance shows that such cases are not within the policy intention of DHPs and, in any event, that the specific reference to disability and foster care means that these cases will have a higher priority in applications for a limited pot of money than cases of shared care. Mr Jason Coppel QC for the Secretary of State disputes this, saying that it is for local authorities to decide, applying the broad discretion which they have under the 2001 Regulations, whether and in what circumstances they will award DHPs in cases of shared care.[23]The Good Practice Guide refers to the objectives which local authorities have when considering whether to make an award of DHPs. These include “keeping families together”. Some local authorities have published their own guidance or policy statement as to the circumstances in which they will award DHPs. I was referred to guidance published by Leeds in England and by Edinburgh and Glasgow in Scotland. The Leeds guidance indicates that DHPs will be targeted to (among others), "Parents requiring an additional room under child access arrangements where alternative housing options, including options in the private sector, are not appropriate". Edinburgh states that DHPs will be paid "Where a parent does not have full-time custody of children but has regular overnight access visits. Regular access will be considered to be 1 night per week". Glasgow's policy is that priority will be given to applications "where separated parents have a formal arrangement for shared care of a child, or children, and an additional bedroom is a requirement of the agreement”. I was not referred to any guidance published by the claimants' local authorities, each of which has been made an Interested Party, but has taken no part in the proceedings.

The previous challenges

[24]As already indicated, there have been several previous legal challenges to the Regulations, as well as to the benefit cap introduced as part of the same package of welfare changes. Mr Coppel submits that the claim is effectively determined against the claimants by these cases, in particular the decision of the Court of Appeal in R (MA) v Secretary of State for Work & Pensions [2014] EWCA Civ 13, [2014] PTSR 584. Another important case is R (SG (previously JS)) v Secretary of State for Work & Pensions [2014] EWCA Civ 156, [2014] PTSR 619, judgment in which was delivered on the same day as MA.[25]SG was concerned with the benefit cap introduced by the Welfare Reform Act 2012. The claimants were single mothers with children who had been victims of domestic abuse whose benefits were reduced as a result of the cap. This was done by reducing their housing benefit, although the reduction had nothing to do with the bedroom criteria. There were several grounds of challenge to the legality of the cap, including a complaint that it constituted a breach of the claimants’ rights under article 8 of the Convention. The Court of Appeal (Lord Dyson MR, Longmore and Lloyd Jones LJJ) dismissed the claim. As to the article 8 claim, it acknowledged the possibility that as a result of the application of the cap, some tenants might be unable to pay their rent and become homeless, although in that event the local authority would have an obligation to re-house them. Other tenants might have to move. The Court of Appeal accepted that in such circumstances article 8 would be engaged by the cap (see [85]). However, it applied Strasbourg authority to the effect that article 8 does not generally require the state to provide a home and that the provision of funds for that purpose is a matter for political and not judicial decision ([91]). The Court of Appeal recognised that exceptionally in extreme cases article 8 may impose a duty to provide support such as housing and welfare benefits, but the examples discussed (a family living in squalid conditions, or homelessness involving the separation of a parent and her child) demonstrated that the threshold for an obligation to provide welfare support under article 8 is set at a very high level ([94] to [98]). It held that despite the hardship which the claimants might suffer, their circumstances did not approach the level of destitution and that accordingly they fell well short of demonstrating an interference with the claimants' article 8 rights ([105]). Alternatively, if there was such an interference, the relevant question was whether the interference was "manifestly without reasonable foundation" and the answer was that it was not ([106]). In reaching these conclusions the Court of Appeal had well in mind the UN Convention on the Rights of the Child ([67]).[26]I understand that SG has been appealed to the Supreme Court and judgment is currently awaited. However, the parties did not ask me to defer my decision until after the Supreme Court has delivered its judgment. In the meanwhile I am bound by the decision of the Court of Appeal.[27]The issue in MA was whether the 2012 changes to housing benefit discriminated unlawfully against disabled persons. The Court of Appeal (Lord Dyson MR, Longmore and Ryder LJJ) held that if those changes were considered without regard to the scheme for DHPs, there was discrimination because the criteria for defining under-occupation were concerned with the needs of non-disabled households (see [39] of the judgment). However, it was not realistic to confine the enquiry to the 2012 Regulations, which had been introduced as part of a package for dealing with the problem of under-occupation ([40]). The correct approach was to consider the Regulations together with(i) certain specific exemptions for disabled people contained in the 2013 Amendment Regulations and(ii) the availability of the DHP scheme for payment to others to whom it might not be reasonable to apply the bedroom criteria. Viewed in that way, although there was still discrimination against disabled people ([47]), that discrimination was objectively justified and therefore lawful ([80]). In considering the question of justification, the test was whether the legislature's policy choice was "manifestly without reasonable foundation" as the Regulations formed an integral part of a high policy decision in the field of economic and social strategy, albeit that it was still necessary for the court to scrutinise carefully the justification for the discrimination advanced by the Secretary of State ([54] to [56]). Two of the factors held to be of particular importance on the question of justification should be mentioned. The first was the difficulty of defining an exemption for persons with a disability who needed to be excluded from the bedroom criteria when the circumstances of disability and an individual’s needs over time may vary widely. The second was the availability of the DHP scheme as a more flexible way of meeting needs, which the Secretary of State had indicated would be monitored, with the funds available being topped up if necessary. (There was another challenge, based on the public sector equality duty, but this failed and is not relevant to the present case).[28]MA was applied by Stuart-Smith J in Rutherford v Secretary of State for Work & Pensions [2014] EWHC 1613 (Admin). This was a claim for unlawful discrimination by a severely disabled child and his grandparents with whom he lived. They needed respite care which was provided by carers who stayed overnight in the grandparents' home twice a week. Although the 2013 Amendment Regulations had made provision for some categories of disabled persons to be exempted from the bedroom criteria, the claimants did not fall within those categories. However, the claimants did receive DHPs which fully covered the shortfall in housing benefit. Stuart-Smith J held that the 2012 Regulations and the DHPs scheme had to be considered as a whole and that, when this was done, the admitted discrimination in the Regulations was justified, applying the "manifestly without reasonable foundation" test. The claimants argued that DHPs were by definition discretionary and therefore could not be relied upon, so that the claimants did not have any assurance of future payment. However, Stuart-Smith J regarded that submission as ignoring the practicalities of the situation, which included the fact that DHPs were clearly intended to be paid when a person with an ascertained need for an additional bedroom would otherwise be the subject of discrimination on grounds of disability, that the local authority was obliged to exercise its discretion in accordance with public law principles and the Convention, that it had so far made good the reduction in housing benefit, and that there was no real doubt that it would continue to do so. On that basis he dismissed the claim, adding, however, that if the DHP scheme or other circumstances were to change materially, different considerations might apply.[29]Finally, I was referred to a decision by the Upper Tribunal in Scotland in Cruickshanks v Glasgow City Council (Case CSH/77/2013) decided on 15 August 2014. It was a case of shared care with facts materially identical to the present case, save in two respects. As in the present case, the claimant’s housing benefit had been reduced, but the shortfall had been made good by payment of DHPs. The tribunal judge held that article 8 was engaged by the reduction in housing benefit introduced by the 2012 Regulations (see [24]), but that having regard to the payment of DHPs there was no interference with the claimant's article 8 rights ([25]), although if there had been such an interference it would have been justified, again as a result of the payment of DHPs ([28]). He expressed a tentative view that even without the DHPs, if the claimant had been required to move to a smaller house, that might not be sufficient to constitute an interference with his article 8 rights, but suggested that this would depend on the circumstances, including the seriousness of the consequences for the children concerned ([26]). There are as indicated two potential points of distinction from the present case. One is that in Glasgow the payment of DHPs was subject to the city council's stated policy of paying DHPs where separated parents have a formal arrangement for shared care of a child and an additional bedroom is required (see [23] above). The second is that, as the judge noted, the Scottish government had stated its intention to remove the DHP cap level in Scotland or to set it at a level high enough to meet the Scottish government's policy intentions. This provided, in effect, a reasonable degree of assurance that DHPs would continue to be paid to the claimant.

The short answer

[30]A short answer to this claim is that as a result of the DHPs received by each of the claimants, which have completely compensated for the reduction in housing benefit paid to them (or would have done, in the case of Mr Hutchinson and Mr Cohen if the correct applications had been made), none of the claimants has suffered any interference with their family life capable of amounting to a breach of article 8. They continue to live where they lived before the changes in housing benefit. Their children continue to live with them to the same extent as they did before. They have the same net income. There is at most the possibility of a change in these circumstances in the future, coupled with a degree of understandable anxiety about this possibility and the stress involved in making further applications for DHPs. Ms Lieven submits in her skeleton argument that interference in the claimants' article 8 rights comes at the point when the loss of their home becomes a real and immediate prospect. On any view that point has not yet been reached.

The need to engage with the Article 8 issues

[31]Despite this, I do not think it would be satisfactory to decide the case on this basis without saying more. Ms Lieven for the claimants submits that if DHPs were to be withdrawn at some point in the future requiring the claimants to move to a smaller property, that would of itself amount to an infringement of their rights; and, furthermore, that in view of the stated intention of at least the Cotswold District Council (see [16] above) there is a real prospect that this will occur in Mr Cohen’s case in the near future. She submits also, and I accept, that there is not the same degree of assurance that DHPs will continue in the present cases as there was for different reasons in the Rutherford and Cruickshanks cases.[32]In Rutherford the severe and permanent nature of the claimant’s disability made it extremely likely that DHPs would continue in all foreseeable circumstances, as this was precisely the kind of situation with which DHPs were expressly intended to deal. In Cruickshanks the policy adopted by the Glasgow City Council and the stated intention of the Scottish government also made it very likely that DHPs would continue. Those factors do not apply here, where there is no express statement in the guidance to which parents with secondary responsibility can point to show that DHPs are intended to be paid in their case; the local authorities concerned in this case have not published any guidance or policy statements that DHPs will be made in such circumstances; although DHPs have been paid so far, at least one of the local authorities concerned has implied that such payments may not be made in future if this claim does not succeed; and in circumstances of continuing financial stringency, there is no certainty as to the funds which will be made available for DHPs in future, although I accept that the evidence shows that so far local authorities have not fully spent the funds which have been made available.[33]Mr Coppel for the Secretary of State submits that because local authorities are required to exercise their discretion in accordance with public law principles and to comply with the Convention, it would not be open to them to withdraw DHPs if that would constitute an infringement of the claimants’ article 8 rights. That is so, but it begs the question whether or in what circumstances there would be such an infringement. I consider, therefore, that it is necessary to grapple with that question, as both parties urged me to do.[34]Moreover, it seems to me that there is at least an element of inconsistency in the Secretary of State’s position. Mr Coppel submits that the present claim is bound to fail as a result of the decision of the Court of Appeal in MA. However, that decision, as has been seen, depended heavily on the availability of DHPs for disabled people. However, the Secretary of State has refrained, at least in these proceedings, from saying that DHPs should generally be available to parents with secondary responsibility in cases of shared care. Indeed he declined an invitation by the claimants’ solicitors to amend the Guidance to specify that they should be available in such cases, preferring to leave this to the unguided discretion of local authorities. Moreover, when the issue of shared care was raised in the House of Lords debates on the 2012 Regulations by the Bishop of Norwich, the response of the Minister for Welfare Reform, Lord Freud, was not that DHPs would usually (or at all) be expected to deal with such cases, but that the taxpayer should not have to pay for two bedrooms for any individual child:
“The right reverend prelate the Bishop of Norwich asked about non-resident children. Where the tenant has non-resident children, housing benefit may already be paying for a room for the child or children in the place where they usually reside. It would be double provision potentially to fund an additional room in both parents' properties.”
[35]That is at least arguably a different approach from that taken in disability cases, which is that DHPs were the appropriate mechanism to deal with such cases, with express provision made for them in the published Guidance. In these circumstances, although there is much in MA which is relevant in the present case, I cannot accept that it is necessarily determinative. This is a further reason why I consider that I should deal with the situation which will arise in the event that(i) the claimants’ local authorities withdraw the payment of DHPs and(ii) as a matter of fact, that means that the claimants are forced to move to a smaller property.[36]I make clear that I do so, however, on the basis set out at [19] above -- in particular, that the withdrawal of DHPs would mean that the claimants could not continue to live in their current homes and that their children would no longer be able to live with them on a regular basis, but that a strong and loving relationship with their children would nevertheless continue. The children would lose one of what they presently regard as their two homes, but would not face any risk of homelessness or destitution and would continue to be able to live with the parent who has primary responsibility for them and continue their current schooling.[37]That said, the circumstances in which the claimants might be required to move are necessarily variable and it is impossible to predict exactly what these might be. For example, as already indicated, there is a suggestion in the evidence of Mr Cohen, albeit not at present supported by any independent evidence, that being required to move to smaller premises might have an adverse impact on his own mental health and might cause a recurrence of other problems which his son has faced in the past but which have been alleviated by their current living arrangements. If anything of that nature were to arise, the situation would need to be considered in the light of proper evidence as to the nature, seriousness and likely consequences of any such development. I do not attempt in this judgment to address that possibility one way or the other, let alone to deal with all possible future circumstances, but only with the proposition advanced by Ms Lieven that if the claimants are in fact required by the benefit changes to move to a smaller property where their children cannot live with them, that would of itself be an infringement of their rights.

Is Article 8 engaged?

[38]Article 8 of the Convention provides that:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, or the prevention of disorder or crime, or the protection of health or morals, or for the protection of the rights and freedoms of others.”
[39]The first question is whether article 8 is engaged (in the sense of whether the complaint in this case falls within the ambit of the provision) by circumstances in which loss of benefit compels the claimants to move to premises in which their children can no longer live with them. In my judgment it is, for the same reasons as given by the Court of Appeal in SG at [85]:
“We consider that article 8 is engaged by the cap, at the very least in that aspect of article 8 which confers a right to respect for private and family life. The Secretary of State accepts that the cap may place families in a position where they are unable to remain in their existing accommodation. One of its aims is to force persons who are out of work and in receipt of benefits to take decisions as to how they can live within the means of the capped benefits they receive. As a result, many families will be forced to find cheaper accommodation. In particular, it may be necessary for them to move away from areas of high cost accommodation and, therefore, away from the existing support networks provided by their wider families and friends. Although we have seen little evidence as to the actual effect of the cap in this regard to date, we were shown a memorandum in which an official in the Department for Communities and Local Government estimated that the operation of the cap could result in an additional 20,000 families being accepted by local authorities as homeless and requiring to be accommodated. In these circumstances, we consider that the measure does have a sufficient impact on the enjoyment of private and family life to engage article 8 in the sense that it falls within the ambit of the provision.”
[40]Although this reasoning was concerned with the benefit cap, it is equally applicable here. I note in addition that article 8 refers specifically to respect for a person’s home.[41]Mr Coppel relies on a dictum of Kennedy LJ in Langley v Bradford Metropolitan District Council, a case which is reported together with M v Secretary of State for Work & Pensions [2004] EWCA Civ 1343, [2006] QB 380 which was also concerned with housing benefit. Kennedy LJ said at [180]:
“The particular housing benefit with which we are concerned falls outside the ambit of article 8 because there is no obligation to provide the benefit and its provision is not the state demonstrating its respect for a claimant's home in the way that parental leave allowance was held to demonstrate respect for family life.”
[42]However, this dictum was not supported by the other members of the court. Sedley LJ said nothing about it, and Neuberger LJ expressly reserved his position on the point at [143]. I consider that this issue is determined in the claimants’ favour by the decision of the Court of Appeal in SG.

Is there an interference with the claimants’ right to respect for their family life?

[43]The next issue is whether the changes to housing benefit constitute an interference with the claimants’ right to respect for their family life. Here too I consider that for practical purposes this issue is determined by the decision of the Court of Appeal in SG. I do not by any means overlook the unhappy consequences for the claimants and their children if the children are no longer able to live with the claimants on a regular basis. Nevertheless, the authorities considered in SG, as well as the decision in that case itself, make clear the truly exceptional nature of the circumstances in which article 8 will impose a duty to provide support in the form of housing and welfare benefits. As the Court of Appeal said at [98]:
“It is clear from these authorities that the threshold for a positive obligation to provide welfare support under article 8 is set at a very high level.”
[44]It is important that this should be so. If it were otherwise, the effect would be to transfer controversial and acutely sensitive decisions about economic priorities and social policy from democratic representatives to judges.[45]As it is, it is clear that Parliament was alive to the impact of the 2012 Regulations on parents with secondary responsibility. As already noted at [32] above, the position was expressly referred to in the debate in the House of Lords. Ms Lieven draws attention also to the report of the Children’s Commissioner which made clear the Commissioner’s concern at the potential impact of the Regulations on children generally. Ms Lieven submits that there are passages in this report which deal specifically with the issue of shared care. I have to say that I do not read those passages in that way myself, but that is a secondary consideration. There can be no doubt that the issue was drawn to the attention of Parliament, and that Parliament nevertheless voted to approve the Regulations. Parliamentary approval of the Regulations was an important feature of the Court of Appeal’s decision in MA. After summarising relevant parts of the debate at [31] to [33] of his judgment, Lord Dyson MR returned to the topic at [81] in giving his overall conclusion on the issue whether the discrimination against disabled people had an objective justification: “Secondly, the need for the court to be cautious about finding unlawful discrimination of a statutory instrument passed by affirmative resolution of Parliament is heightened by the fact that some of the principal complaints that are made by the claimants were expressly raised and discussed during the parliamentary debates and rejected."[46]The context for this statement was the issue whether there was justification for discrimination, but the reasoning applies similarly to the question of interference with article 8 rights as a result of legislative decisions in the field of economic and social policy.[47]Ms Lieven submits that the Parliamentary debates were much more concerned with the plight of disabled people than with the issue of shared care. In point of fact that appears to be correct, at least in the sense that many of the contributions to the debates were concerned with the issue of disability. However, it is not appropriate in my judgment (even assuming that it is permissible under the Bill of Rights) to investigate the comparative degree of prominence which the two issues may have had in the debates, or to speculate about whether those voting to approve the Regulations understood the full implications of what they were voting for. The court must assume that they did. This is, therefore, a case like MA where the point raised in this claim was expressly raised in Parliament.[48]I would accept that the examples discussed in the cases of what will amount to an interference with article 8 rights do not constitute an exhaustive list of the circumstances in which there will be a duty to provide welfare support. However, while I recognise the difficulties which the claimants may face, the situation with which I am dealing in the present case falls far short, in my judgment, of what would be required to constitute an interference with the claimants’ article 8 rights.[49]The case on which Ms Lieven particularly relies is Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 2004, which was one of the cases discussed by the Court of Appeal in SG. Lord Woolf CJ said (emphasis added):
“Our conclusion is that Sullivan J was correct to accept that article 8 is capable of imposing on a state a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, article 8 may require the provision of welfare support in a manner which enables family life to continue. Thus, in R (J) v Enfield London Borough Council [2002] EWHC 735 (Admin), where the claimant was homeless and faced separation from her child, it was common ground that, if this occurred, article 8(1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the claimants' home in Bernard [2003] LGR 423 and we consider that it was open to Sullivan J to find that article 8 was infringed on the facts of that case.”
[50]Ms Lieven draws attention to the words which I have emphasised, and submits that they show that a less stringent test will apply when the welfare of children is at stake. However, the passage must be read as a whole, and demonstrates that even in a case involving the welfare of children, the threshold remains high, just as the Court of Appeal emphasised in SG.[51]For these reasons I conclude that even if the reduction in the claimants’ housing benefit brought about by the 2012 Regulations has the effect of compelling them to move to a smaller property where their children cannot live with them, that will not of itself be an interference with their rights under article 8. Something more would be needed to reach the high threshold required in this context. In practice, however, if that something more were to exist in any particular case, the probability is that DHPs would in fact be made by a claimant's local authority.

Are the Regulations necessary and proportionate?

[52]Ms Lieven accepts that the changes to housing benefit made by the 2012 Regulations are in pursuit of the economic well-being of the country. However, she submits that they are not necessary in a democratic society and are disproportionate. In view of my conclusion on interference, this issue does not arise, but I will consider it in case it is held that some of the factors to which I have referred in the context of interference are more appropriately dealt with under this heading.[53]It is common ground that the court must reach its own conclusion on this issue and must scrutinise carefully the justification advanced, but there is a relatively minor dispute as to the standard of review. Mr Coppel contends for the "manifestly without reasonable foundation" test discussed in cases such as Humphreys v Revenue & Customs Commissioners [2012] UKSC 18, [2012] 1 WLR 1545. Ms Lieven does not accept this, but does accept that the Secretary of State has a wide margin of appreciation in the area of welfare benefits. I doubt whether the distinction between these two formulations amounts to much, but to the extent that it makes any difference, I conclude that the "manifestly without reasonable foundation" test applies. That follows in my judgement from SG at [106]. It is on any view a stringent test for a claimant challenging the lawfulness of such Regulations to meet.[54]The evidence of Ms Beverly Walsh of the Working Age Strategy Directorate of the Department for Work and Pensions is that the purpose of the policy to which the Regulations give effect was to contain growing expenditure on housing benefit and so to tackle the deficit; to encourage mobility between housing in the social sector; to strengthen incentives to work; to make better use of available social housing; and to rationalise the position of tenants in the social sector with that of tenants in the private sector. Mr Coppel’s submissions on behalf of the Secretary of State on the question of justification can (I hope) be summarised as follows: i) First, the application of the Regulations to parents with shared care was not only raised by a consultation on various aspects of housing benefit reform before the Regulations were introduced, but was raised expressly during the passage of the legislation through Parliament. ii) Second, there is no precisely defined group of individuals with shared care of children whose circumstances justify disapplication of the bedroom criteria by a specific exemption. In particular, there is no “bright line” to identify the extent of shared care which justifies an exemption, or determines whether any exemption should apply only to parents or to grandparents or other minority carers as well. iii) Third, while shared care arrangements are not the primary focus of DHPs, local authorities are required to consider applications to alleviate hardship in any circumstances, including the application of the bedroom criteria to shared care arrangements. Thus, if a reduction in housing benefit in a particular case did threaten to infringe Convention rights, the relevant local authority would have a duty to consider awarding a DHP to avoid that infringement. iv) Fourth, the principle of one person being responsible for a child in any benefit period, upheld by the Supreme Court in Humphreys, should also apply to housing benefit in the public sector as it applies to Child Tax Credit, which is intended to provide for the basic needs of children, and as it applies also to housing benefit in the private rental sector. v) Fifth, therefore, in principle and in the absence of particular hardship, the state should pay housing benefit at a level which will provide a room for a child to one carer only.[55]I do not understand Ms Lieven to deny that the policy objectives of the Secretary of State were properly open to him. It follows that he was entitled to take account of the position, not only of parents with secondary responsibility and their children, but also of other families who may be living in unsuitable and overcrowded conditions, or in bed and breakfast accommodation, in areas where demand for social sector housing far exceeds supply. How to make best use of the limited available social housing requires essentially political and not judicial decisions. As to the justifications advanced as showing that the benefit changes were a necessary and proportionate means of achieving those policy objectives, I comment as follows: i) As already indicated at [45] above, I accept that the particular issue now raised was expressly raised in Parliament. That was an important consideration in MA and is equally so here. ii) I accept also that, like MA, this is a case where there is no readily definable category of persons who might be made the subject of an exemption. If parents whose children stay with them for about half the time, why not one or two nights a week? Why not grandparents or other close family members? Ms Lieven’s response was that a line has necessarily to be drawn somewhere in welfare cases, that the claimants were only required to show that the Secretary of State had failed to justify the Regulations in their case, and that it was for the Secretary of State to bring forward appropriate proposals. I accept, however, that the difficulty of defining an appropriate category of persons with secondary responsibility in shared care cases to whom the Regulations should not apply is a relevant consideration, for the same reasons as given by the Court of Appeal in MA. iii) For the purpose of this stage of the argument, I am proceeding on the basis that although the fact that the claimants have to move to a smaller property where their children cannot live with them will not of itself be an interference with their rights under article 8, there may be cases of particular hardship over and above the reduction in family life which that situation necessarily involves and that such cases of particular hardship may on appropriate facts pass over the high threshold required to amount to an interference with article 8 rights. In that event, I accept that local authorities would be required to consider applications for DHPs so that if in a particular case a reduction in housing benefit did threaten to infringe Convention rights, the relevant local authority would have a duty to consider awarding a DHP to avoid that infringement. In the light of MA, that is the appropriate approach to the question of justification. (Conversely, however, if -- contrary to my decision -- the appropriate assumption is that if the claimants have to move, that will of itself interfere with their article 8 rights, whether the availability of DHPs provides sufficient justification is less clear. Such a conclusion would be tantamount to deciding that in every case where a parent with significant secondary responsibility would otherwise be forced to move, there is an obligation on the state to make good the housing benefit shortfall by means of DHPs. That would appear to be a far-reaching conclusion, although on the view which I take it does not arise). iv) The fourth and fifth points listed above go together. While I accept that there are differences between housing benefit and other benefits (such as Child Tax Credit) to which the principle of one person being responsible for a child in any benefit period applies, it cannot in my judgment be said to be irrational to harmonise the payment of housing benefit in the public sector with other benefits in this way, and to determine in current economic circumstances that in the absence of particular hardship, the state should pay housing benefit at a level which provides a room for a child to one carer only. Whether that is an appropriate policy is a matter for the legislature, not the judges.[56]I conclude, therefore, that the changes to housing benefit introduced by the 2012 Regulations are not manifestly without reasonable foundation.[57]I would add that although, as Mr Coppel points out, Mr Daly in MA was a parent with secondary responsibility for the care of his disabled son (see paragraph 10 of the Annex), this particular aspect of his case did not feature in the judgment of the Court of Appeal and I have not attached weight to it in considering the issue of justification. It appears that, in any case, Mr Daly obtained employment and ceased receiving housing benefit within days of the introduction of the 2012 Regulations.

Article 14 read with Article 8

[58]Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
[59]In the alternative to their claim under article 8, the claimants say that the changes to housing benefit introduced by the 2012 Regulations constitute unlawful discrimination contrary to article 14 when that article is read together with article 8. In view of my decision that article 8 is engaged (see [39] above), two questions arise. The first is whether there is discrimination on the ground of the claimants' "other status". The second is whether, if so, that discrimination has an objective justification.[60]In my judgment the claimants' position as parents with secondary responsibility probably does constitute an “other status” within the meaning of article 14. I base that conclusion on the decision in Francis v Secretary of State for Work & Pensions [2005] EWCA Civ 1303, [2006] 1 WLR 3202, holding that a person with parental responsibility under a residence order has such a status, together with the observation of Lady Hale in Humphreys at [20] that "it is quite likely" that the Strasbourg court would regard a parent with secondary responsibility as having an “other status” for the purposes of article 14. It may be that there is also indirect discrimination on the grounds of sex as it will generally be mothers to whom child benefit is paid, who therefore have primary responsibility, and fathers who have only secondary responsibility. However, it would be an odd outcome if a father whose child stayed with him for half the time could complain of discrimination but a mother in the same position to whom child benefit was not paid could not.[61]It is, however, unnecessary to explore these issues further. It is common ground that the question of justification for any discrimination raises the same issues as arise under article 8 as a free-standing claim and should be given the same answer.

Irrationality

[62]Finally, the claimants say that the exclusion of parents with secondary responsibility from entitlement to housing benefit for their children's bedrooms is irrational, applying domestic public law principles. Ms Lieven realistically accepts, however, that if the claims under the Convention fail, a case of irrationality is unlikely to succeed. I agree. For the reasons already given, the policy objectives of the benefit changes and the Regulations as a means to achieve those objectives are not irrational as that term is used in public law.

Conclusion

[63]For the reasons explained above, this claim for judicial review must be dismissed.

Cited in 4 later judgments