The Secretary of State for Work and Pensions v Hockley & Anor

Two brothers, as individual respondents, appealed decisions made pursuant to Regulation B13 which had reduced their HB. The central issue of law in the appeals was identified as “the approach that should be taken to determine what is a bedroom for the purposes of the Amended Housing Benefit Regulations”.

The court identified the approach to be taken to Regulation B13 as follows:

“19.

When an ordinary or familiar English word such as ‘bedroom’ is used in a statutory test and is not defined in the legislation:

Ms IB is an adult single woman. She has severe learning disabilities and autistic traits and is unable to live alone. IB is a tenant of a property comprising five main rooms plus kitchen and bathroom. She lives with her sister and brother-in-law who care for her. IB is in receipt of HB administered by Glasgow City Council. The HB of IB was reduced by 25 per cent when Glasgow City Council applied Regulation B13(3)(b) of the regulations and concluded that she was under occupying the rented property by two bedrooms.

The focus of the case was on the meaning of the word “bedroom” in the regulations. The court considered it essential to consider the statutory context in interpreting the word “bedroom” in Regulation B13. In so doing the court stated:

“19.

There was no real dispute in this case about the purpose of the Regulations and we consider that purpose would be frustrated if a tenant who rented what was objectively classified, for example, as a three bedroom property could by his use or unilateral structural changes to the property change the classification to a two or one bedroom property.

20.

… In our opinion the classification and description of a property used as a dwelling is a matter of fact to be determined objectively according to relevant factors such as size, layout and specification of the particular property in its vacant state. That classification cannot be changed except by structural alterations made with the landlord’s approval which have the result of changing the classification of the property having regard objectively to its potential use in a vacant state. Thus the classification of a property as having one or more bedrooms does not change depending on the actual needs of the occupants or how they use the rooms for whatever reason from time to time.

...

21.

The issue was raised directly at tribunal level in a number of cases. A three judge panel was convened in SWP v Nelson against a background that there were a number of different approaches taken by First-tier Tribunals to the interpretation of the word “bedroom” in Regulation B13. We consider that there is merit in the approach of the Upper Tribunal to the extent that they recognised that the assessment should focus on the property when vacant rather than how it is actually being used from time to time (paragraph 28) and in their practical approach to considering what may be relevant factors illustrated in paragraphs 30 to 33. To the extent however that the Upper Tribunal entertained the possibility that the designation or choices made by family members as to who should occupy bedrooms or how rooms should be used had any relevance, we do not agree.”

The Supreme Court considered a number of appeals from claimants who have disabilities or who live with dependent family members who have disabilities or who live in what are known as “sanctuary scheme” homes. They all receive or have received HB. The claimants challenged the validity of Regulation B13 as it applied to them on equality grounds, specifically they contended that there had been a violation of their rights under Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) taken with article 8 and/or article 1 of the First Protocol (“A1P1”) and in MA’s case that there had been a breach by the Secretary of State of the public sector equality duty under the Equality Act 2010.

In the MA proceedings the Court of Appeal [2014] EWCA Civ 13 accepted that Regulation B13 had a discriminatory effect on some people with disabilities, but it held the discrimination was justified, primarily because the Secretary of State was entitled to take the view that it was not practicable to exempt an imprecise class of persons to whom the bedroom criteria would not apply because they needed extra bedroom space

At [29] Lord Toulson JSC cited from the judgment of Baroness Hale in Humphreys v Revenue and Customs Comrs [2012] UKSC 18 as follows:

“15.

The proper approach to justification in cases involving discrimination in state benefits is to be found in the Grand Chamber’s decision in Stec v United Kingdom 43 EHRR 47. …

16.

The court repeated the well-known general principle that:

‘A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.’ (para 51)

…

18.

The same test was applied by Lord Neuberger of Abbotsbury … in R (RJM) v Secretary of State for Work and Pensions [2009] AC 311 …. He concluded, at para 57:

‘The fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn

imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable.’”

At [32] and following Lord Toulson stated:

“32.

The fundamental reason for applying the manifestly without reasonable foundation test in cases about inequality in welfare systems was given by the Grand Chamber in Stec (para 52). Choices about welfare systems involve policy decisions on economic and social matters which are pre-eminently matters for national authorities.

Lord Toulson allowed the appeal of Mrs Carmichael who was unable to share a bedroom with her husband because of her disabilities. He found that her position was directly comparable to that of the Gorry children who required separate bedrooms for disability reasons in a previous decision of the Court of Appeal. The Supreme Court held that there were no reasonable justification for the differences between the two cases and on that basis allowed Mrs Carmichael’s appeal.

The significance of the Carmichael decision is that the Supreme Court accepted that in considering challenges pursuant to articles 8 and 14 of the ECHR, Regulation B13 did have a discriminatory effect upon some people with disabilities. However, it held that the discrimination was justified because the Secretary of State was entitled to take the view that it was not practicable to exempt an imprecise class of persons to whom the bedroom criteria would not apply because they needed extra bedroom space by reason of disability. The DHP scheme had the benefit of flexibility which was appropriate because of the nature of a person’s disability and needs. In so doing the court applied the test of whether the Secretary of State’s policy was “manifestly without reasonable foundation” and concluded that it was not.

The purpose of Regulation B13 is the calculation of rent, it is not intended to provide a particular type of social housing. It requires the local authority/housing authority to look at entitlement under B13(2) irrespective of knowledge of the family unit or property. It is a method of calculating entitlement to housing benefit, the provisions do

In applying Regulation B13 the relevant authority identifies the number of bedrooms in a property and thereafter identifies what a family is entitled to. If the number of bedrooms exceeds the family’s entitlement then the reduction is applied to the housing benefit. Within the legislation there is no definition of bedroom, no concept of the double bedroom. There is nothing of a qualifying character or reference to a special case of particular need, for example medical needs. There is nothing to direct the legislation to look at the facts of specific cases. Qualifications to the regulation have subsequently been introduced following the decisions in Carmichael and Burnip, the purpose being to identify specific scenarios.

RH’s family unit, namely a couple and two children of the same sex under 16, prima facie entitles them to a two-bedroom house pursuant to B13(5). It is accepted that the two bedrooms in the home in Wisteria Way used by the Hockley sons are small. There is a dispute which has been remitted to the FTT for consideration as to whether one of the bedrooms is suitable for sharing.

The Secretary of State submits that in assessing the maximum rent pursuant to B13 there are two stages:

For the purpose of quantifying state assistance, entitlement is computed by reference to categories not the persons within them. The categories are depersonalised. Thus, fifteen-year-olds are treated the same as babies even though their needs are different. The language of B13(5) is mandatory, there is no provision for a bedroom which is not qualitatively appropriate for the identified category. The language does not allow for the taking of an individual out of the first category and placing that person into a lower category. The analysis to be performed is the same whatever the number of rooms. The entitlement is to rent not an individual bedroom.

The focus of the social policy was on properties with spare rooms and the removal of the “spare room subsidy” as evidenced in the Department for Work and Pensions’ “Equality Impact Assessment, Housing Benefit – Size Criteria for People Renting in the Social Sector” (June 2012). The legislative language reflects that policy, people with spare rooms are to be affected; people without spare rooms are not. In this case there is no spare room, RH and her family live in a house which fits four people.

The natural construction of the legislative language supports the UT’s reasoning. Bedroom entitlement is expressed in Regulation B13 as being for particular categories of occupants. Its intention was not to treat entitlement to a bedroom as being discharged by a bedroom in which it would be impossible to accommodate the relevant categories of persons.

The first respondent accepts:

It is the first respondent’s case that B13(5) has to be read in the context of the regulation as a whole. In construing the subsection, the critical word is “applicable”. In considering each of the categories (a) to (e), RH’s sons would fall within category (c). However the UT looked at the legislation as a whole and asked whether the category was applicable for the two boys who were unable to share the room by reason of its size. Implicit in the word “applicable” is the question whether Parliament intended that category (c) was applicable to the two boys when the bedroom could not in fact accommodate them. In construing the word “applicable” in the context of the legislation as a whole the intention was that the applicable category was one which would entitle any one of the individuals living in the property to a bedroom which could accommodate them.

The legislation could not have intended that a person should be entitled to one bedroom for two people in which it was impossible to accommodate them. Regulation B13(5) has to be read as a whole and applicability includes the construction that the room can accommodate the relevant category.

The first respondent contends that the provision of HB to families engages article 8 ECHR (Carmichael [49]). It is her case that the treatment of the children is upon the basis of a status protected by article 14 ECHR. They were initially required to share a room because both were aged under ten, from 1 December 2014 they had been required to share a room because they are of the same sex. Children aged under ten with a sibling aged under ten are treated differently under Regulation B13 to single adult family members and to child family members aged at least ten with a different sex sibling. The first category of a person must share a room while the latter two categories of persons are permitted a room of their own.

This different treatment is said to amount to prima facie discrimination on the ground of age, it being a relevant status for the purpose of article 14 ECHR. Further, children aged at least ten with a sibling of identical sex are treated differently to children aged at least ten with a sibling of a different sex. The first category of person must share a room while the second category of person is permitted his/her own room. This different treatment is said to amount to prima facie discrimination since one category is treated less favourably than the other and it is exclusively the ground of sex which leads to the less favourable treatment. Alternatively the categories “Children aged under ten with a sibling aged under ten” and “Children aged at least ten with the same-sex sibling” themselves form a relevant status for the purposes of article 14.

The fundamental difficulty with the first respondent’s discrimination arguments is that Carmichael determined that the legislation and the overall scheme were compatible with the ECHR and thus lawful, even in cases where there were compelling medical needs for individuals to occupy particular properties. On the facts of this case no such needs arise. The state makes appropriate provision by way of assistance to the family of the first respondent, the problem is that they are in occupation of a property which is not appropriate from the perspective of the scheme.

There would be no alleged discrimination if RH’s family were in appropriate twobedroom accommodation. The issue arises because they occupy an inappropriate threebedroom property when viewed objectively and by reference to other family units who could occupy it. As the size criteria themselves are non-discriminatory they cannot become discriminatory when applied to a particular family unit, particularly when one has regard to the mitigation (DHP) that forms a part of the overall scheme.

The second respondent adopts and supports the submissions of the appellant.

The regulations represent an instrument of social policy applicable to the usage of social entitlement. The intention of the legislation is to: ensure that social housing is used in the most effective way possible; improve the mismatch of property with those living within it; reduce overcrowding; place families in appropriately sized accommodation; increase mobility in the socially rented sector; incentivise work; introduce greater fairness between claimants living in the private and socially rented sector; and reduce public expenditure. The purpose of the regulations is to calculate what, if any, caps are to be applied to welfare benefits, in particular HB. The regulations do not provide social entitlement to physical housing.

The methodology of the regulations is that the bedroom is used as a proxy for need. The size criteria/bedroom criteria are a means of quantifying cash entitlement. A “bedroom” does not represent a precise proxy. The Secretary of State accepts that it is an imprecise means of measuring need but it serves the purpose because all persons in housing need a bedroom and thus it is useful. It is also accepted that mismatches can arise but can be met, for example, by DHPs.

“Bedroom” is an ordinary word which is neither defined nor qualified in the regulations. The word has to be construed and applied in its context having regard to the underlying purposes of the legislation. The underlying purpose of the regulations is to limit HB entitlement to those occupying social housing. The language of the regulations demonstrates that the criteria identified as limiting such benefit is the entitlement of a tenant to a bedroom for persons listed in subparagraphs (5) and (6). The assessment is to be carried out by the relevant authority in respect of a notionally vacant house. A point accepted by the first respondent. It is also accepted by the first respondent that B13(5) depersonalises the assessment to be performed such that the characteristics of the particular individuals are irrelevant. It follows that such an assessment is an objective one.

There is nothing in the regulations to indicate that any such assessment is required to take account of how a property and, in particular, the bedrooms in the property would be used by a particular family unit. Were that to be so, the purpose underlying the legislation would be frustrated as a tenant could, by use of the property, change the objective classification so as to reduce the relevant number of bedrooms. This further demonstrates the objective nature of the assessment and, with it, the interpretation of “bedroom” within B13(5).

Such reasoning is consistent with that of the UT in Nelson and the Court of Session in

IB which considered the underlying purpose of the legislation and the use of the word

“bedroom” in that context. It is not consistent with the approach of the UT in this case, which introduced a subjective element into that assessment, which I find is supported neither by the words of the regulation nor the intention of the legislation.

For the reasons given I find that pursuant to the size criteria (Regulation B13(5) of the Housing Benefit Regulations 2006, which entitles the housing benefit claimant to “one bedroom for each of the following categories of person” in occupation of the property) the word “bedroom” should be interpreted as meaning a room capable of being used as a “bedroom” by any of the listed categories and not a room capable of being used as a “bedroom” by the particular claimant. In holding that the correct interpretation was a

The appeal is allowed. The decision of the UT is quashed. In applying Regulation B13 to the property at the centre of this case, I find that RH is entitled to a two-bedroomed property.