Zacchaeus 2000 Trust, R (on the application of) v Secretary of State for Works and Pensions

This is an appeal with the permission of Underhill J, as he then was, against his order dismissing the appellant’s claim for judicial review of the Rent Officers (Housing Benefit Functions) (Amendment) Order 2012 (“the 2012 Order”).

The appellant had challenged the 2012 Order on two bases: (a) that it was ultra vires, and (b) that it was made in breach of the public sector equality duty in section 149 of the Equality Act 2010 (“the 2010 Act”).

The 2012 Order amended the Rent Officers (Housing Benefit Functions) Order 1997 (“the 1997 Order”). The effect of the 2012 amendments to the 1997 Order was summarised by the judge in paragraph 1 of his judgment, neutral citation number [2013] EWHC 233 (Admin) as follows:

“(1)

Housing benefit for private-sector tenants is calculated by reference to an "appropriate maximum housing benefit" ("AMHB"): see section 130 (1) and (3) of the Social Security Contributions and Benefits Act 1992 ("the 1992 Act"). The amount of benefit payable is the lower of the actual rent paid by the claimant and the AMHB.

(2)

Section 130A of the 1992 Act provides for AMHB to be determined by regulations, which may provide for it to be ascertained "by reference to rent officer determinations": see sub-sections (2) and (3).

(3)

The relevant regulations – most recently the Rent Officers (Housing Benefit Functions) Order 1997 ("the 1997 Order") – provide for rent officers to determine, for each "broad rental market area" ("BRMA"), a "local housing allowance" ("LHA") for each of a series of categories of dwellings, defined by the number of bedrooms: see article 4B.

(4)

Until the changes challenged in these proceedings the nature of the exercise performed by the rent officer under the 1997 Order was that he would ascertain the range of actual levels of rent being charged in the BRMA for each category in that month, using information gathered locally, and would fix the LHA at a prescribed point in that range. Originally the prescribed point was the median of the rents in question. The LHA so determined constituted the AMHB. With effect from April 2011 changes were introduced which (a) substituted for the median the thirtieth percentile point in the range, (b) introduced an overall monetary cap for the LHA in each category and (c) removed the previous five-bedroom category, so that the maximum rate of housing benefit would relate only to four-bedroom houses. These changes were effected by the Rent Officers (Housing Benefit Functions) Amendment Order 2010 ("the 2010 Order"). The introduction of the cap was unsuccessfully challenged in R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2011] EWHC 2616 (Admin) ("the CPAGcase").

(5)

The effect of the 2012 Order is to substitute for that regime a system under which the LHAs in force as at 2 April 2012 are frozen until April 2013 and are thereafter to be uprated annually to the lower of (a) the figure produced by a determination using the method described at (4) above and (b) the current figure as uprated by the percentage annual increase in the Consumer Price Index ("the CPI"). In crude terms, the effect is that any increases in housing benefit will be capped at the level of general inflation, even if inflation in the rental market has been higher.”

In paragraph 6 of his judgment, the judge said that the statutory scheme could be understood only by piecing together a peculiarly intricate jigsaw puzzle. He set out the essential pieces of the jigsaw in paragraphs 7 to 11 of his judgment.

In my judgment, the five pieces of the statutory jigsaw that are of critical importance for the purposes of the ultra vires challenge are as follows:

One: Section 130A of the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”) which provides that:

“(1)

For the purpose of section 130 above, the appropriate maximum Housing Benefit (in this section referred to as the AMHB) is determined in accordance with this section.

(2)

Regulations must prescribe the manner in which the AMHB is to be determined.

(3)

The regulations may provide for the AMHB to be ascertained in the prescribed manner by reference to rent officer determinations.”

And subsection (7):

“A rent officer determination is a determination made by a rent officer in the exercise of functions under section 122 of the Housing Act 1996.” 

Two: Section 122 of the Housing Act 1996 (“the 1996 Act”) which provides that:

“(1)

The Secretary of State may by order require rent officers to carry out such functions as may be specified in the order in connection with...Housing Benefit...

(6)

An order under this section (a) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament...”

Three: The Housing Benefit Regulations 2006 as amended, which were made under section 130A of the 1992 Act (“the 2006 Regulations”). The amount of a person’s AMHB is 100 per cent of his “eligible rent”, calculated in accordance with these regulations (see Regulation 70). For present purposes, the amount of a person’s “eligible rent” is “the maximum rent (LHA)” (local housing allowance); see regulation 12D.

Regulation 13D of the 2006 Regulations provides:

“(1)

Subject to paragraphs (3) to (11), the maximum rent (LHA) shall be the local housing allowance determined by the rent officer by virtue of article 4B(2A) or (4) of the rent officer’s order, which is applicable to:

(a)

the broad rental market area in which the dwelling to which the claim or award of Housing Benefit relates is situated at the relevant date, and

(b)

the category of dwelling that applies at the relevant date in accordance with paragraph 2...”

Paragraph 2 cross-refers to the categories of dwelling, which are specified in schedule 3B to the Rent Officers Order. The Rent Officers Order is defined by Regulation 2 as the 1997 Order.

Four: The 1997 Order made under section 122 of the 1996 Act, as it stood prior to the amendments which were made by the 2012 Order, on 2 April 2012. So far as material, article 4B provided:

“1A. On 20 March 2008 and so often thereafter as a rent officer considers appropriate, a rent officer shall in relation to each local authority:

(a)

determine one or more broad rental market areas which will (during the month which next begins after the determination is made) fall in whole or in part within the area of the local authority so that every part of the area of that local authority falls within the broad rental market area, and no part of the area of that authority falls within more than one broad market rental area...

2A. No more than ten and not less than eight working days before the end of each month, the rent officer shall:

(a)

in each broad market rental area determine in accordance with the provision of schedule 3B:

(i)

a local housing allowance for each of the categories of dwelling set out in paragraph 1 of schedule 3B...

3A. Any broad rental market area determination made in accordance with paragraph 1A or local housing allowance determination made in accordance with paragraph 2A before 7 April 2007 shall take effect on 7 April 2007 and any subsequent determination shall take effect on the first day of the month which begins after the day on which the determination is made.” 

Schedule 3B referred to in paragraph 2A of article 4B prescribes in paragraph 1 the various categories of dwelling. Paragraph 2 sets out the manner in which the rent officer is to determine an LHA for each category of dwelling in paragraph 1. In summary, the rent officer must compile a list of rents for dwellings let under assured tenancies within the BRMA.

Subparagraph 2(9) of schedule 3B then provided:

“Subject to paragraph 12, the local housing allowance for each category of dwelling specified in paragraph 1 is the amount of the rent at the 30th percentile in the list of rents for that category of dwelling.” 

Subparagraphs (10) and (11) set out how the 30th percentile is to be calculated and subparagraph (12) sets out the cap which was introduced by the 2010 Order on the maximum LHA, so that, for example, the maximum LHA for a four-bedroomed dwelling is capped at £400.

Five: The 2012 Order. The relevant amendments to article 4B and schedule 3B of the 1997 Order are as follows:

A: Paragraph 11A of article 4B is amended so that the Secretary of State must agree to a rent officer’s decision to determine a BRMA.

B: For the obligation in paragraph 2A to make a monthly determination of an LHA for each BRMA, there is substituted an obligation to make an annual determination within 20 days after the applicable consumer pricings index (CPI) is published.

C: A substituted paragraph 3A and a new paragraph 3B are introduced into article 4B. They provide that any LHA determination made under the new paragraph 2A will take effect on the following 1 April, thus freezing the LHAs in force on 2 April 2012 until April 2013.

D: Schedule 3B is amended by the introduction of a new paragraph 1A and a new paragraph 11, which provide: 

“(1)(a) subject to subparagraph (12), the local housing allowance for a category of dwelling is :

(a)

the rent at the 30th percentile determined in accordance with subparagraphs (2) to (10) where that does not exceed the amount determined in accordance with subparagraph 11, or

(b)

in any other case, the amount determined in accordance with subparagraph (11).”

“(11)

The amount to be determined by the rent officer for the purposes of subparagraph 1A is as follows:

(a)

Where the applicable consumer prices index is a positive number, the local housing allowance last determined for that category of dwelling multiplied by the factor M, or

(b)

where the applicable consumer prices index is a negative number or zero, the local housing allowance last determined for that category of dwelling.” 

The case advanced by Mr Chamberlain QC on behalf of the respondent is a very simple one. While section 130A(2) provides that regulations must prescribe the manner in which AMHB is to be determined, subsection (3) makes it clear that those regulations may provide for the AMHB to be ascertained in the prescribed manner by reference to rent officer determinations.

That is precisely what the 2006 Regulations do; they prescribe the manner in which AMHB is to be determined using the concepts of “eligible rent” and “the maximum rent (LHA)” and they do so by reference to rent officer determinations made under article 4B of the 1997 Order as amended by the 2012 Order.

Although the 2006 Regulations define the Rent Officers Order as the 1997 Order, section 20(2) of the Interpretation Act 1978 applies, so that in the absence of any contrary intention, the reference to the 1997 Order is to be taken as a reference to that order as amended by the 2012 Order.

Mr Chamberlain submits that if one asks the question, “What is a rent officer determination for the purpose of section 130A(3)?” the answer is to be found in subsection (7). A rent officer determination is a determination made by a rent officer in the exercise of functions under section 122 of the 1996 Act.

Section 122 confers a broad power on the Secretary of State; he may by order require rent officers to carry out such functions as may be specified in the order in connection with Housing Benefit. That is precisely what the Secretary of State has done in the 1997 Order as amended by the 2012 Order. A determination by a rent officer of the LHA for each of the categories of dwelling in the BRMA under article 4B(2A) is one of the functions in connection with Housing Benefit which the Secretary of State has, by the order as amended, required rent officers to carry out.

Miss Laing QC, who appeared with Mr Knight pro bono on behalf of the appellant, submitted that this analysis of the statutory scheme was erroneous in two respects.

One: When Parliament referred in section 130A(3) to a rent officer determination, it meant an “expert decision” by a rent officer about rents based on actual evidence of market rents. Uprating base line figures by reference to the CPI is not an expert determination; it is simply a mechanical exercise.

Two: Because of the importance of the AMHB in the statutory scheme, a person is not entitled to receive Housing Benefit unless there is inter alia an AMHB in his case; see section 130(1)(b) of the 1992 Act.

Parliament has required that the manner in which the AMHB is to be determined must be prescribed in regulations, which must be subject to Parliamentary approval. The manner in which the AMHB is determined is prescribed by the 1997 Order as amended by the 2012 Order, and not by the 2006 Regulations.

I will deal with these two submissions in reverse order. It seems that the second submission, which featured prominently in Miss Laing’s submissions before us, was not advanced before Underhill J, although the appellant’s skeleton argument contended that the manner in which AMHB is to be determined must be prescribed by regulations and not by any other method. The skeleton argument focused on the need for there to be a rent officer determination and the submission that a rent officer determination means an expert determination; see the appellant’s first submission above.

The short answer to the appellant’s second submission is that it concentrates on subsection (2) of section 130A and ignores the effect of subsection (3).

While the regulations must prescribe the manner in which the AMHB is to be determined, they do not have to reinvent the wheel. They may provide for the AMHB to be ascertained in the prescribed manner, ie in the regulations, by reference to rent officer determinations. If that is done, there will be no need to repeat in detail in the regulations the manner in which rent officers are required to make their determinations because, subject to the appellant’s first submission, which I shall discuss below, subsection (7) defines a rent officer determination as a determination made by a rent officer in the exercise of functions under section 122.

By specifying the functions that rent officers are required to carry out in connection with Housing Benefit, the 1997 Order sets out the manner in which rent officer determinations must be made. The 1997 Order and any order amending it, such as the 2012 Order, are themselves subject to Parliamentary scrutiny by way of negative resolution (see section 122(6)).

In these circumstances, the authorities relied upon by Miss Laing in this connection, namely R (Riley) v Secretary of State for Work and Pensions [2012] 1 WLR 2239, [2013] EWCA Civ Division 66, and R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR at 2208, UKSC 33, are of no assistance to the appellant in this case.

Parliament has expressly authorised the regulations to prescribe the manner in which AMHB is to be determined by reference to rent officer determinations, and the manner in which rent officers must make their determinations is set out in an Order which is subject to Parliamentary scrutiny.

I accept Mr Chamberlain’s submission that by virtue of section 20(2) of the Interpretation Act 1978, the reference to the 1997 Order in the 2006 Regulations is to be taken as a reference to the 1997 Order as subsequently amended by the 2010 and 2012 Orders.

Miss Laing submitted that a contrary intention did appear, because section 130A provided that the manner in which AMHB was to be determined had to be prescribed in regulations but, again, this submission ignores the effect of subsection (3) of section 130A.

I turn therefore to the submission that was considered and rejected by Underhill J, that a rent officer determination must be an “expert determination.”

In support of this submission, Miss Laing took us to the legislative history. The rent officer scheme was introduced by the Rent Act 1968 as part of a wider legislative scheme, which protected the tenure of private sector tenants and controlled the rents payable by them by reference to certificates of fair rent which were to be issued by rent officers.

The scheme introduced by the 1966 Act was continued by the Rent Act 1977 (“the 1977 Act”), so that when Housing Benefit was introduced by the Social Security and Housing Benefits Act 1972 the rent officer service was in existence and the criteria for entitlement to housing allowance (as it was then called) could include the amount of the “fair rent” registered in respect of the property in question.

However, the link between the determination of “fair rents” for private sector tenants and the maximum amount of Housing Benefit payable was effectively broken by the Housing Act 1988 (“the 1988 Act”), which deregulated private sector rents.

Thereafter, although rent officers still had some functions under the 1977 Act, those functions were exercised in respect of a dwindling number of private sector tenancies.

Section 121(1) of the 1988 Act gave the Secretary of State power to confer additional functions relating to Housing Benefit on rent officers:

“(1)

The Secretary of State may by order require rent officers to carry out such functions as may be specified in the order in connection with housing benefit...”

Section 121(1) is the predecessor of section 122(1) of the 1996 Act.

For my part, I do not see how this legislative history supports the submission that a rent officer’s determination, in the exercise of functions relating to Housing Benefit under section 122 of the 1996 Act, must be an “expert determination” by reference only to rental levels prevailing in the market of the kind that rent officers made when determining “fair rents” under the 1977 Act.

When private sector rents were deregulated, Parliament deliberately conferred new powers on the Secretary of State to require, by order, rent officers to carry out “such functions as may be specified” in connection with Housing Benefit.

While the specification of the functions to be carried out might be expected, as a matter of practicality, to have regard to the existing expertise of rent officers, there was no reason why the functions to be specified by the Secretary of State in connection with Housing Benefit should be so limited.

Unlike the provisions for determining the fair rent of privately rented properties, which were a matter between the tenant and his landlord, the Secretary of State has overall responsibility for the Housing Benefit scheme. He must prescribe a scheme (see section 123 of the 1992 Act). Although the scheme is funded and administered by local authorities, the Secretary of State must, by order, specify the permitted total of Housing Benefit payable by any authority in any year (see section 134, subsections (1) and (12) of the Social Security Administration Act 1992).

The underlying statutory purpose of the Housing Benefit scheme has been described as “a balancing exercise”. One element of the balance is the need to protect the public purse. The other is the need to devise a scheme that does not produce homelessness or require what has been described as “...a radical deterioration in ... a person’s residential circumstances”: see the authorities cited in paragraph 36 of the judgment of Supperstone J in the CPAGcase referred to in paragraph 1(4) of the judgment of Underhill J.

Since achieving the statutory purpose necessarily involves the carrying out of a balancing exercise, the Secretary of State must be entitled to specify the functions which he requires rent officers to carry out in connection with Housing Benefit under the 1997 order in such a way as to enable him to achieve what he regards as the right balance, which may of course shift over time, depending on the state of the public purse and the housing market.

Miss Laing accepted that, subject to her submission that the manner in which AMHB is to be determined must be prescribed in regulations (see her second submission above) the Secretary of State could, when making an order under section 122, specify the functions to be carried out by rent officers in such a way as to achieve an overall reduction in the cost to the public purse of the Housing Benefit scheme.

When rent officers were making “expert determinations”, fixing fair rents for private sector tenants, there was no such balance to be struck. There are, therefore, sound reasons why the functions which may be specified in an order made under section 122 of the 1996 Act are not limited to functions within the established expertise of rent officers in respect of fair rent determinations.

In paragraph 18 of his judgment, Underhill J was inclined to agree with Miss Laing’s submission that Parliament must have intended that the functions referred to in section 122(1) must at least to some extent involve the use of the “characteristic expertise” of a rent officer. He gave the example of a doctor and said: 

“...you do not confer functions on a doctor, all of which could be performed by any unqualified person.”

For my part, I do not find the analogy with a doctor’s expertise to be of any assistance. Medical doctors have a well established professional expertise and function, which is wholly independent of statute. While rent officers do have an expertise, their office is a creature of statute and their functions are defined by statute. In the case of Housing Benefit, they are required to carry out such functions as the Secretary of State may specify by order. As a matter of common sense, the Secretary of State would be unlikely to specify in an order functions all of which could be performed by unqualified persons. It would be a waste of the rent officer’s expertise and of public funds to do so, but that is a far cry from the proposition that that the Secretary of State may specify in an order under section 122 only those functions that require the “characteristic expertise” of a rent officer. As Mr Chamberlain pointed out, the ambit of such a gloss on the plain words of section 122 would be wholly unclear.

In any event, as the judge pointed out in paragraph 18 of his judgment, the functions conferred upon rent officers by the 1997 order, as amended by the 2012 order, do require the rent officer to exercise his “characteristic expertise” in determining the rent at the 30th percentile in every BRMA. He is then given the additional function of determining what is the amount of the current LHA uprated by the percentage annual increase in the CPI. He then has to decide whether the rent determined using his “characteristic expertise” does or does not exceed that amount.

The fact that these additional steps could be taken by a person who does not have the “characteristic expertise” of a rent officer does not mean that the Secretary of State could not lawfully specify them in an order made under section 122 as functions to be carried out by rent officers in connection with Housing Benefit in order to achieve the right balance in accordance with the underlying statutory purpose. For these reasons, I would uphold the judge’s decision to reject the ultra vires challenge.

The judge set out the relevant provisions of section 149 in paragraph 25 of his judgment. In paragraph 27 he summarised the approach and conclusions of an Equality Impact Assessment (EIA), published by the Department for Work and Pensions, which considered the impact of the government’s proposal to restrict increases in LHA rates to the CPI.

Although Miss Laing submitted that one of the reasons why the EIA was flawed was because it did not expressly refer to the statutory requirements in section 149, it is clear that whether or not they succeeded in complying with the statutory duty, those who prepared the EIA had the need to comply with those statutory requirements well in mind. Paragraph 26 of the EIA says that the material contained within it “...covers the equality groups currently covered by the equality legislation, ie age, disability, gender (transgender), ethnicity, religion, sexual orientation, pregnancy/maternity, and civil partnerships.”

The failure to make an express reference to section 149 does not mean that this is a case where it can be said that no regard was paid to the matters set out in that section; see paragraph 36 of R(Baker & Ors) v SSCLG [2008] EWCA Civ 141 per Dyson LJ, as he then was.

The issue is whether the Secretary of State had due regard to the matters set out in section 149 (1). As Underhill J said in paragraph 26 of his judgment: 

“...what is required by the section 149 duty will inevitably vary according to the circumstances of the case.”

See also on this point R (Bailey & Ors) v Brent LBC [2011] EWCA Civ 1586 at paragraphs 83 and 102.

Underhill J was not impressed by the EIA, but as he said in paragraph 35 of his judgment:

“[The court is] not concerned with a drafting competition, and EIAs are not legal documents. Their purpose is to evidence that due regard has been had to the specified factors (so far as they are in play)...”

In almost every case, it would be possible to say that one or more of the specified factors could, with advantage, have been considered in greater detail, but the fact that criticisms can properly be made of an EIA does not mean that the public authority exercising the function will have failed to have due regard to the specified factors (see paragraph 87 of R (Hurley & Moore) v SSBIS [2012] EWHC 201 per Elias LJ).

Miss Laing submitted that one of the reasons why the EIA was defective was the fact that it made no attempt to quantify the impact of restricting any increase in LHA to the CPI. She contrasted the lack of any quantification in the EIA with the contents of an Impact Assessment (IA), dated 12 March 2012, published after the 2012 order was made on 29 February 2012 but shortly before it came into effect on 2 April 2012.

While it is true that the IA does contain figures, for example paragraph 12 says that:

“For tenants whose rent is at or above the LHA rate, by 2014/2015 their award will be on average around £6 per week lower than would have been the case without this measure.”,

and paragraphs 16 to 19 give four illustrative examples of the effect on individual LHA claimants, the overarching message which is conveyed by the IA is that: 

“The precise impact depends on the behavioural response on the choice of accommodation made by the LHA recipients and on whether the landlords decide to restrict their rent increases.”

See paragraph 11.

The underlying policy objective is not simply to reduce the cost of Housing Benefit. It is to exert a downward pressure on rents. Thus the IA explains that “the extent of notional losses will in practice depend on movements in local rental markets, and the actual impact on claimants will also depend on how landlords respond to lower LHA rates.” Hence the conclusion in the final sentence of paragraph 12 of the IA that “it is not possible to provide estimates on the distribution of losses.” In these circumstances, the lack of quantification in the EIA does not lead to the conclusion that there was a failure to have due regard to the specified factors.

Then it is said on behalf of the appellant that the analysis in the EIA was very limited and that such information as was provided was irrelevant and “wholly uninformative”. It is true that the analysis was limited and that more could have been said, but I do not accept the submission that the information which was provided was irrelevant or uninformative. For example, table 4, which shows the breakdown by ethnicity of all Housing Benefit renters and those Housing Benefit renters in the private sector who would be affected by the measure, might have revealed that, by comparison with all of those tenants who are entitled to Housing Benefit in both the private and the public sectors, black tenants were overrepresented in the private sector and thus more likely than white tenants to be affected by a measure which affects only those tenants in receipt of Housing Benefit who are in the private sector and does not affect tenants who are in the public sector. The fact that table 4 demonstrates that this is not the case may not take the matter very far, but the information it contains is neither irrelevant nor is it wholly uninformative.

Against this background, I turn to consider the three particular respects in which the appellants submitted that the analysis in the EIA was flawed. First, it was submitted that while the risk of having to move home because of the shortfall between the increase in a Housing Benefit claimant’s rent and the increase in CPI might be the same for all those in receipt of Housing Benefit in the private rental sector, the impact of having to move would be disproportionately greater for the members of two protected groups: the disabled and children of school age.

Second, it was submitted that there would be a differential impact on ethnic minorities because they tend to have larger families, and the effect of the cuts imposed by the 2010 order would be exacerbated by a widening gap between actual rents and Housing Benefit uprated by CPI, thus making it more likely that those with larger, rather than smaller families, would be forced to move home.

The judge dealt with these three groups in paragraphs 33 to 35 (the disabled), 36 to 42 (children) and 43 to 45 (ethnic minorities) of his judgment.

Paragraph 14 of the EIA and the breakdown of the Housing Benefit caseload by disability make it clear that around half of those on Housing Benefit in the private rented sector have someone who describes themselves as having a disability covered by the Disability Discrimination Act. The judge set out the terms of paragraph 25 of the EIA, which is headed “Mitigation”, in paragraph 27(5) of his judgment. He concluded that the reference in paragraph 25 of the EIA to the availability of discretionary housing payments “for those affected households where the type and level of disability places restrictions on the amount of suitable accommodation available” showed that the Secretary of State had been aware of the particular difficulties which might be faced by disabled people if they had to move home.

In my judgment, he was right to do so. Of course, it would have been better if the section of the EIA dealing with disability had identified this particular difficulty and the mitigation section of the EIA had then responded to it, but what matters is whether the issue was considered, not where it was considered in the EIA.

Turning to the appellant’s case on the impact of the measure on children, the judge recognised that there was no explicit acknowledgement in the EIA of the possibility that having to move house would have a more serious impact on children of school age than adults, because the children may have to change schools, and the appellant contends that this may adversely affect their social development and education prospects.

The judge therefore considered whether there was any sufficient reason for the Secretary of State to believe that there might be an equality issue affecting the impact of children who have to move schools, such as to require the Secretary of State to have specific regard to that risk. The judge concluded that there was not.

It is submitted on behalf of the appellant that, in reaching that conclusion, the judge wrongly substituted his own process of reasoning for a process which should have been engaged in by the Secretary of State.

I do not accept that submission. It is true that the judge’s “untutored reaction” to the proposition that there was a likelihood of serious damage being done to children by reason of having to move school was that such serious harm would be rare (see paragraph 40 of the judgment). But he was at pains to acknowledge that a judge must use his own impressions on a point of this kind with great caution (see paragraph 41).

Precisely because the judge recognised the need for such caution, he principally relied on two other factors when reaching his conclusion. First, he had been given no evidence on the point and, second, it had not been suggested that any interested group had raised this issue in response to the DWP’s consultation exercise about the potential impact of the introduction of uprating by CPI. Against this factual background, the judge was entitled to conclude that this was “something of a lawyer’s point” rather than a point of any real substance.

Miss Laing submitted that it is no answer to a failure to discharge the section 149 duty to say that the obligations to comply with the duty was not raised by the party who is challenging the decision (see paragraph 29 of Baker). That is true, but it does not follow that when a judge is considering whether a decision taker should have realised that a measure might raise a particular equality issue, he is not entitled to consider the factual matrix as a whole including the responses or lack of responses to a consultation exercise in respect of the proposed measure.

The judge’s answer to the appellant’s case in respect of the differential impact on ethnic minorities was that the primary impact on that group had been caused by the 2010 order, which had both capped the amount of LHA payable in respect of each of the different categories of property and removed the previous five bedroom category.

In the CPAG case, Supperstone J held that the Secretary of State had paid due regard to his duties under section 149 in the specific context of large families.

Underhill J said in paragraph 45 of his judgment: 

“There is no material before me to indicate the size of any additional or adjuvant effect of the 2012 Order in this regard, but it is inherently secondary. There is no basis on which I could find that if the issue was sufficiently considered in 2011 there were any new issues raised by the 2012 Order that required the Secretary of State to carry out a further assessment.”

No such material was placed before us. 

The judge’s conclusion on this issue was plainly correct, as was his conclusion in paragraph 48 of the judgment that the DWP was entitled to conclude that a separate assessment of the impact of the freezing of LHA for the current year was not necessary because the department had considered the point and concluded that the freeze did not raise equality considerations beyond those set out in the EIA.

For these reasons, which in essence echo the reasons given by the judge, I would reject the appellant’s section 149 challenge to the 2012 order.

I would dismiss this appeal. Finally, I wish to record my thanks to the advocates on both sides for their very helpful written and oral submissions.

I agree and I join with my Lord, Sullivan LJ, in thanking the advocates for their very careful consideration.

I also agree. The appeal is therefore dismissed.