Isle of Anglesey County Council, R (on the application of) v Secretary of State for Work and Pensions

The Secretary of State for Work and Pensions subsidises payments of Housing Benefit made by Housing Authorities but he does so on conditions that have to be met. Where the conditions are not met with respect to some Housing Benefit paid out by the Authority, the legislative provisions provide that in respect of that Housing Benefit there shall be no subsidy. There are, though, discretions in the Secretary of State, in respect of subsidy already paid but where the conditions were not met, to seek to recover in part only or not at all. Anglesey County Council (“Anglesey”) has received subsidy in cases where the conditions were not met. The Secretary of State, in exercise of his discretions, has required repayment of part only (20%) of the subsidy to which Anglesey, by reason of its failure to comply with the conditions, had not been entitled. By way of Judicial Review Anglesey seeks to challenge the lawfulness both of the legislation and of the particular exercise of the Secretary of State’s discretions. In monetary terms what is at issue is £444,661, 20% of the £2,223,305 which Anglesey accepts it was overpaid by way of subsidy in the financial years 1997/8, 1998/9 and 1999/2000.

Anglesey has appeared before me by Mr Drabble Q.C. leading Mr Kolinsky. The defendant Secretary of State has appeared by Mr Giffin Q.C.

The Social Security Contributions & Benefits Act 1992 (“the 1992 Act”) indicates that prescribed schemes are to provide, inter alia, housing benefit and that steps would be taken to make entitlement to the benefit known to the public – section 123 (1) (d) and (3). Entitlement to the benefit would depend on a claimant’s income and on the fact that he was liable to make payments in respect of a dwelling in Great Britain which he occupied as his home – section 130. Regulations were to provide the manner in which the amounts of benefits were to be calculated – section 130 (4). By way of section 2 of the Social Security (Consequential Provisions) Act 1992 the then-existing Regulations became (in general) the Regulations appropriate under the 1992 Act. In that way the Housing Benefit (General) Regulations 1987 (“the 1987 Regulations”) became effective to act as regulations under the 1992 Act.

If a Local Authority were to be obliged to pay a claimant whatever the claimant said he was required to pay for his dwelling there would, without further control, be plainly a possibility of abuses including that the rent might not be appropriate as a rent for the dwelling or that the dwelling might not be appropriate, but excessive, in relation to the claimant’s true need. Accordingly the 1987 Regulations made provision such that Local Authorities, the payors of the benefit, were required to apply to a Rent Officer for determinations and, where appropriate, redeterminations of what was appropriate, the Rent Officer acting by way of his functions under the Housing Act – see e.g. Regulation 12 A and 12 C of the 1987 Regulations. When an initial claim for benefit is made and the claim is seen to be appropriate, a benefit period not exceeding 60 weeks could be specified – 1987 Regulations 66 (2) and (3). If, though, by reason, for example, of persisting unemployment or disability, a claimant were to be eligible for benefit continuing after the initial benefit period, there would then need to be a renewed application for benefit and, importantly, fresh reference to the Rent Officer. I need not set out the provisions in any further detail as there has been no suggestion that the defendant’s evidence in this area is in any way inaccurate or incomplete. Thomas Gorst, Housing Benefit Section Manager within the Financial Services Division of the defendant (“the DWP”) and the person with the ultimate responsibility for recovery decisions on behalf of the Defendant, said in paragraph 7 of his witness statement as follows:-

“… It is necessary to safeguard the public purse both against the charging of unreasonably high rents and against the situation in which claimants are occupying properties in excess of their reasonable needs. For this reason, the legislation provides for benefit to be paid against “eligible rent”, which cannot normally exceed the “maximum rent”. The maximum rent in rent allowances cases is set by the Local Authority on the basis of determinations made by Rent Officers. This requires claims to be referred to the Rent Officer in the circumstances set out in Regulation 12 A of the Housing Benefit (General) Regulations 1987. Broadly speaking, claims must be referred unless they relate to a tenancy which is an excluded tenancy e.g. regulated tenancies under the Rent Act 1977. The Rent Officer’s determination represents an independent judgment on the question of whether the dwelling occupied exceeds what is, in accordance with statutory criteria, the appropriate size of home for the claimant, and as to what is an appropriate rent for the property. The current role of the Rent Officer has been a feature of the housing benefit system since 1989. All new rent allowance claims have to be referred. An award of housing benefit is for a defined period which will not normally exceed 60 weeks. A claimant who wishes to continue to receive housing benefit must then make a further claim. That renewed claim must also be referred to the Rent Officer. A reference to the Rent Officer is also required when certain changes in circumstances occur.”

The legislative provisions for housing benefit are complicated and lengthy and the Social Security Administration Act 1992 (“the SSA Act 1992”) manifests Parliament’s concern that the administration of those complicated provisions was open to abuse or laxity and deserved or required close attention from the Executive. Accordingly the Secretary of State was empowered to authorise persons to consider and to report to him on the subject – section 139 A of the SSA Act 1992. Proposals for improvement by, for example, a Local Authority, can be invited by the Secretary of State from that Authority – section 139 D (2) and the Secretary of State can specify a standard which is to be attained – section 139 D (3). Enforcement Notices may in appropriate cases be issued and put into effect – section 139 F and section 139 G, SSA Act 1992.

If unjustified claims to benefit are to be avoided then a due administration would, accordingly, include not only reference to the Rent Officer upon an initial claim but also, as has been indicated, reference to him on renewed claims. As to that Mr Gorst said, in unchallenged evidence:-

“In the view of the Department, that claims should be referred to a Rent Officer when the regulations so require is an extremely important part of the system. Referrals upon an initial claim protect the public purse against inflated claims. That danger may be less great upon a renewed claim, although it is obviously possible, for example, if rental values are falling. Referrals upon a renewed claim may also serve to protect the interest of the claimant (or the landlord, if the landlord is unable to charge the claimant a higher rent than housing benefit will meet). If the housing benefit payable has been limited by an earlier determination of the Rent Officer, and rental values have subsequently risen, then a further referral may lead to an increase in the amount of housing benefit payable.”

Whilst the more obvious cause for a loss to the public purse arising upon a failure to obtain a Rent Officer’s determination on a renewed claim is where, as Mr Gorst says, rents have fallen since the initial determination, a similar although, no doubt, less likely loss will occur when premises, appropriate to the claimant at the time of the initial Rent Officer’s determination, have since become excessive in relation to a claimant’s diminished needs. If, for example, children have left home or parties separate or an elderly occupant leaves to go into care, a claimant’s needs may shrink so as to render the initially appropriate premises no longer appropriate to his or her needs. In such cases a lower benefit than previously paid may be appropriate.

The Secretary of State’s inquiries and information he received led him to the view that in relation to the financial years 1997/98, 1998/99 and 1999/2000 Anglesey had paid out some £2,223,305 in respect of renewed claims for housing benefit in cases where no renewed determination by the Rent Officer had been asked for by Anglesey or received. Anglesey’s own researches have indicated that, of the number of cases where there was a failure to refer the renewed claim to the Rent Officer, 3% of those cases were cases where a lower payable housing benefit should have been determined and in 6% of the cases a higher amount. If one can identify the public interest as being not only that excessive sums should not be paid by way of housing benefit but also that the benefit should be paid at the correct level where it is due, then, as Mr Gorst points out, the wrong benefit was paid and accordingly the public interest was not duly served in some 9% of the cases in which there had been a failure to refer the renewed claim to the Rent Officer.

This case, though, is not, or is not directly, about the payment to claimants of housing benefit but is concerned with the subsidy which Anglesey has received from the DWP in respect of renewed claims which had not been the subject of a Rent Officer’s determination.

The SSA Act 1992 provides a subsidy to authorities administering housing benefit. Broadly speaking an authority which complies with the legislative requirements can expect to receive subsidy from Central Government at the rate of 95% of their qualifying expenditure incurred in rent allowance cases. A further subsidy is paid in respect of the cost of administering the benefits. Revenue support grant can provide yet further support. Again, the details do not need to be set out as there is no dispute as to Mr Gorst’s description, which is as follows:-

“Subsidy under the Subsidy Order [Income Related Benefits (Subsidy to Authorities) Order 1998] is initially paid to Local Authorities by way of interim subsidy, paid by instalments during a subsidy year in question. The amount of these interim payments is based upon estimates of subsidy expenditure submitted by Authorities before the start of the year and at midway through the year. By the 30^th September following the end of the subsidy year (i.e. 31^st March), an Authority must submit its initial final claim for subsidy, based upon the expenditure which it has actually incurred during the year in question. A balancing payment will be made at that stage. By the 31^st December the claim must be audited by the Authority’s external auditor, leading to a further adjustment. Depending on how the initial final claim and the audited final claim compare with the amounts actually paid, payments may be made either by the Authority to the DWP, vice versa.”

The amount of the subsidy is to be determined in accordance with an order made by the Secretary of State – SSA Act section 140 B (1). The subsidy is not, however, paid unconditionally by the Secretary of State. Section 140 C of the SSA Act 1992 provides:-

“1.

Subsidy shall be paid by the Secretary of State in such instalments, at such times, in such manner and subject to such conditions as to claims, records, certificates, audit or otherwise as may be provided by order of the Secretary of State.

2.

The order may provide that if an Authority has not, within such period as may be specified in the order, complied with the conditions so specified as to claims, records, certificates, audit or otherwise, the Secretary of State may estimate the amount of subsidy payable to the Authority and employ for that purpose such criteria as he considers relevant.

3.

Where subsidy has been paid to an Authority and it appears to the Secretary of State –

(a)

that subsidy has been overpaid; or

(b)

that there has been a breach of any condition specified in an order under this section,

he may recover from the Authority the whole or such part of the payment as he may determine. Without prejudice to other methods of recovery, a sum recoverable under this subsection may be recovered by withholding or reducing subsidy.

4.

An order made by the Secretary of State under this section may be made before, during or after the end of the year to which it relates.”

Section 176 of the SSA Act 1992 required the Secretary of State to consult with organisations appearing to him to be representative of the Authorities concerned before making regulations relating to housing benefit. He was also required, before making such regulations, to obtain the consent of the Treasury – section 189(8).

It will noted firstly that so long as the required consultation is conducted and the required consent obtained, the Secretary of State, at any rate so far as express mention is made, is left unfettered as to the nature of the conditions he might impose in relation to the payment of subsidy. Secondly, it would seem, under section 140 C (3), that where there has been a breach of condition the maximum recoverable is not the amount of any overpayment (there may be none as section 140 C (3) (a) and (b) are alternatives) but the “whole of ….. the payment”, a reference back to the subsidy “paid” in the opening words of section 140 C(3). Thirdly, and again looking only at what is expressed, the Secretary of State is not obliged to seek recovery (“… he may recover”) and his determination as to whether it is the whole or part of “the payment” which is to be recovered is discretionary and unfettered.

The applicable regulations are The Income-related Benefits (Subsidy to Authorities) Order 1998, S.I. 1998 No. 562 to which Mr Gorst referred. The preamble to them indicates that they were made with the consent of the Treasury and after the appropriate consultation. They came into effect on the 31^st March 1998. They took effect in relation to years commencing on the 1^st April 1997 or on 1^st April in years thereafter. Leaving aside irrelevant exceptions, Article 3 of the 1998 Order provides that no final subsidy should be paid unless the conditions specified in the following provisions of the Order had been complied with. Article 3 admits of no exception save for the irrelevant ones I have left out of account. The 1998 Order then specified 4 conditions which, like the provisions in the 1992 Act I have described above, show that Parliament was as concerned to achieve a disciplined and careful administration of subsidy as it had been to obtain the same in relation to Housing Benefit itself.

It is not necessary that I set out all of the 4 conditions but they can be found in Article 4,which describes how subsidy is to be claimed, Article 5, which prescribes the keeping of adequate records and the provision of information, Article 6, which requires audit by the Authority’s auditor and Article 7, which requires the Authority to satisfy the Secretary of State that its claim for subsidy was true and complete, that it was supported by all the information which the Secretary of State required and that it fairly represented expenditure in relation to relevant benefit incurred or likely to be incurred by the Authority in the relevant year.

The provisions of Article 5, requiring the Secretary of State to be satisfied that the claim made for subsidy was “full, accurate and properly calculated”, requires attention to be paid to Article 13 – see Article 12 (1) (a). It is common ground that the computation required under Article 13 introduces a need to refer to Schedule 4 Part II of the 1998 Order; both Article 13 (1) (b) (iii) and Article 16 (1) refer to “the appropriate amount” and that amount is ascertainable under the provisions of Schedule 4 Part II. That part is headed “Rent Officers’ Determinations” and that heading is repeated so as to cover paragraphs 3 to 6 of that Part of the Schedule. It is paragraph 6 in Part II of the 4^th Schedule which is most in issue in these proceedings. That paragraph (“Paragraph 6”) provides, so far as material for present purposes, that:-

“…. this Part also applies in a case where an Authority is required, under Regulation 12 A of the Housing Benefit Regulations (Requirement to refer to Rent Officer), to apply for a determination in relation to a dwelling during a relevant year which a Rent Officer would be required to make, but the Authority fails to apply for that determination, and, in such a case, the appropriate amount shall be nil.”

It is common ground that if Paragraph 6 can properly take effect according to its letter then, in the light of the legislation as a whole, the effect would be that, notwithstanding that the corresponding housing benefit had been paid out by Anglesey, it would, for want of its not having applied for Rent Officers’ fresh determinations on the renewal of claims, be totally disentitled to receive subsidy in respect of the sums paid out in those circumstances. The provision that the “appropriate amount shall be nil”, if allowed to be given effect, would, it is common ground, lead to that conclusion. Thus the question for the Court becomes whether there is any route by which the Secretary of State is to be denied reliance upon Paragraph 6 to the extent, £444,661, which under Section 140 C of the SSA Act 1992 subsection (3) he has determined.

This is not the first time that the Courts have been invited to look at these provisions. Two applications involving them by, respectively, Bridgnorth District Council and West Oxfordshire District Council, came before Sullivan J. who, in the course of the hearing, made some interlocutory observations as to the manner in which the discretion under section 140 C (3) supra had been exercised in those cases. The cases were adjourned; it had appeared that the Secretary of State had been acting upon a view that he had no discretion but to recoup. When the matters were restored in March 2001 Counsel for the Secretary of State accepted that the decisions then sought to be reviewed should be quashed and indicated that the opportunity would be taken by the Secretary of State to reconsider the policy which should be applied under section 140 C. Accordingly, on the 12^th March 2001 Sullivan J., without giving any judgment, made an unopposed order quashing the decisions then in issue.

As the Secretary of State had said he would, he then reconsidered his position and that led to the publication of Housing Benefit & Council Tax Benefit Circular HB/CTB – S1/2002 in February 2002. The Secretary of State had accepted at the hearing on March 12^th 2001 that the correct application of section 140 C (3) required the Secretary of State to consider each overpayment on its merits having regard to the individual circumstances in which the overpayment arose and to consider also relevant wider considerations as to whether a recovery was appropriate.

The Circular that emerged refers to a “workshop” in which Local Authorities had taken part and at which questions arising were considered. The Circular continued:-

“The Secretary of State decided that, in order to satisfy the provisions of s. 140 C (3), he will decide whether, and if so how much of, the overpayment should be recovered, with regard to the following criteria, some of which may overlap.”

I will not cite all the criteria. It is not said any is inappropriate but the first is:-

“The degree of impact on the public purse; for example where the case has not been referred to the Rent Officer, we would have regard to the movement in rent levels since the date referral should have occurred.”

Nothing suggests that if there is no impact on the public purse then there should necessarily be no recovery under section 140 C (3). Any such rigid rule would in any event conflict with that provision. The circular also said:-

“In addition to these criteria, the Department would also consider any other circumstances which the Authorities might wish to put forward.”

Paragraphs 7 and 12 of the circular, so far as may be material, said as follows:-

“7.

After careful consideration of all the relevant facts a decision will be made and Authorities will be informed of the outcome. Where the Secretary of State decides that it is appropriate to seek recovery of all, or part, of the overpayment, we will write to Authorities giving details of the amount and the reasons for the decision. Authorities will be given an opportunity and adequate time to respond. The Department will consider the financial circumstances, having particular regard of [sic] each Authority’s financial commitment and size of the recovery in setting an appropriate timescale for repayment.”

“12.

Authorities should be aware that the Department will consider a recurrence of the same failure to be an important factor in any future decision regarding recovery of subsidy that has been overpaid as a result of that failure.”

The DWP raised matters with Anglesey and Anglesey supplied it with information and on the 11^th September 2002 the DWP wrote to Anglesey to say that it had decided that £444,461 of overpaid Housing Benefit was to be recovered. The reasoning in that letter was vigorously challenged at the time by Anglesey and cannot and is not sought to be supported. By a second letter, of 24^th October 2002, the DWP indicated the Secretary State had reconsidered his earlier decision but in doing so had come to the same decision as had been earlier notified. This second decision letter, referring to the Secretary of State said:-

“He is therefore entitled to expect that an Authority will act with reasonable diligence to properly discharge its functions in accordance with the law when administering housing benefit. The Secretary of State considered that the inadequate supervisory/management checks shows that your Authority failed to maintain a strong control environment and in doing so failed to exercise due care in discharging your functions in relation to administering housing benefits.”

The letter indicated that, given the financial circumstances of the Authority, the recovery of overpaid subsidy would be spread over a 12 month period from November 2002.

Anglesey, unsurprisingly sceptical given that the Secretary of State, albeit by a quite different form of reasoning, had nonetheless come to precisely the same monetary conclusion in his second decision as in his first, raised further queries with the DWP but in January 2003 the DWP indicated it was standing by its decision. On the 10^th January 2003 the DWP’s solicitor wrote:-

“The basic position on housing benefit is that your Authority has received £2,223,305 which the legislation provides you are not entitled to. The Secretary has decided to recover only £444,661 of this. Your Authority has therefore benefited from £1,778,644 to which you were not entitled. The Secretary of State is of the view that it must be clear from this that he has taken into account mitigating factors in your case. The Secretary of State fails to see how you can argue that this is unreasonable.”

Mr Drabble makes the point that the alleged benefit of £1,778,644 is illusory; the Housing Benefit to the full extent of the £2,223,305 had been dispersed to claimants by Anglesey. However I do not understand it to be disputed that £2,223,305 is the correct total of housing benefit paid out by Anglesey in cases where, on renewed claims, determinations should have been applied for from the Rent Officers but were not. The total paid out by Anglesey for Housing Benefit in the relevant years is far larger than £2.2m, perhaps of the order of £15m..

Despite correspondence, differences remained between the parties and on the 23^rd January 2003 Anglesey lodged its Claim Form for Judicial Review. On the 13^th June 2003 Sullivan J. gave permission to Anglesey to apply for Judicial Review and permitted an amendment to the Claim Form. It is that amended Claim Form which is now before me.

Anglesey frequently refers to the provisions of Paragraph 6 as being “catch-all” and to the sums required to be repaid as being “penalties”. Neither description is truly apt. Whilst paragraph 6, where applicable, provides, in effect, for a nil subsidy, it is only part of a larger mechanism and cannot fairly be regarded in isolation. The larger mechanism includes the discretions conferred by section 140 C (3) which enable a softening of the rigours of Paragraph 6 to avoid it being “one size fits all”. As for the Secretary of State imposing or recovering a “penalty”, the term is not apt to refer to a claim for repayment (if that is what it is) of that which should never have been paid; a fortiori the word is not apt to describe a claim for recovery of only 1/5^th of that. I have thus not found use of these rather emotive terms to be helpful.

Anglesey argues that the imposition, in exercise of Paragraph 6, of a penalty of £444,661 for the mistakes it made in administering housing benefit is a penalty so disproportionate that effect should not be given to it. It is disproportionate, it is said, both in the sense that it is excessive as a response to the administrative mistakes that were made and excessive as failing to take into account that there was no loss to the public purse, no financial gain to Anglesey and that the repayment demanded involves real financial difficulties. Moreover, runs the argument, a disproportionate penalty is irrational, indeed “Wednesbury” irrational, and is not to be enforced on that account. But, prior to that argument, there is an antecedent one that paragraph 6 itself is unlawful as an excessive exercise of the rule-making power.

In asserting this argument Mr Drabble Q.C. relies on a number of authorities and on one citation from a respected textbook. First he went to Reg (Association of British Civilian Internees: Far East Region) –v- Secretary of State for Defence [2003] 3 WLR 80 C.A.. Mr Drabble accepts that this Court is bound by the two relevant conclusions in that case, namely that where, as before me, no Community law is involved and no question of rights under the Convention are engaged, the proper test, if it is sought to deny effect to legislation, is firstly, not “proportionality” but, secondly, is still the “Wednesbury” test – see Associated Provincial Picture Houses Ltd –v- Wednesbury Corporation [1948] 1 KB 223. I am, therefore, as Mr Drabble accepts, to approach the question on a “Wednesbury” basis.

Next I was taken to R –v- Brent LBC, ex parte Assegai (1987) 151 LGR 891. In that case a committee of the London Borough resolved to ban Mr Assegai, who had been involved in a fracas and had made offensive remarks to two Councillors, from visiting any of the Borough’s properties. The resolution also purported to remove him from his appointment as a Community Governor of a school. Mr Assegai was successful in his attempt to have the ban quashed. It was not even suggested that the resolution to remove him from his appointment was unreasonable but that he was banned from visiting all Council properties, irrespective of circumstances, was, held Woolf L.J., wholly out of proportion to his offences. Such a lack of proportion was itself held to be indicative of unreasonableness in a “Wednesbury” sense. That that can be so would be hard to resist but the case was not concerned with the irrationality or disproportionality of any legislation or even of by-laws and I do not see the case as assisting Anglesey beyond illustrating a broad view that lack of proportion in an exercise of a power can, in a relevant case, amount to “Wednesbury” unreasonableness.

Then Mr Drabble referred to Reg. –v- Barnsley MBC ex parte Hook [1976] 1 WLR 1052 C.A.. Lord Denning MR said the case was one in which Mr Hook had been punished in a manner out of proportion to his offence. That, though, was less clearly part of the ratio of the majority. Scarman LJ decided the case on the sole ground that the Local Authority had been judge in its own cause – page 1062 d-e. Sir John Pennycuick also relied on the Council’s failure to honour the rules of natural justice but added that Mr Hook, a stall holder in the Council’s market, could not have his licence taken from him on short notice except on good cause and that there was no good cause such as to justify the drastic step of depriving Mr Hook not only of his licence but thus, indirectly, also of his livelihood. So to do was disproportionate. Again, there was no testing of the rationality or otherwise of any legislative provision as opposed to a testing of the exercise of whatever power had been conferred.

I was also shown de Smith 5^th Edition which at page 601 paragraph (2) shows that proportionality is applied, mostly implicitly, as a standard by which to assess the lawfulness of certain administrative decisions even where Community law is not involved. However, the citation does nothing to illustrate proportionality’s role in testing the lawfulness of whatever legislation (outside Community and Convention provisions) may have underpinned the particular decision in question.

Mr Giffin Q.C. in answer took me two cases, the first in time of which is R (on the application of Carson) –v- Secretary of State for Work and Pensions [2002] 3 All ER 994 in which the claimant, a resident of South Africa, asserted Convention Rights in relation to her pension, which had not been uprated as it would have been had she been resident in the United Kingdom or in certain other countries. To the extent that Stanley Burnton J. was dealing with Convention Rights the case is not in point but in the course of his judgment he helpfully collected some citations as to the respective roles of the legislature and the Courts in cases concerning, inter alia, the distribution of benefits. At page 1013, paragraph 68, he said:-

“…. It is important to take into account that the Court is concerned with two areas of Government in which it is clear that the judicial arm must give the greatest deference to the legislature and to the elected executive. The first concerns the allocation of resources: how much is to be raised by the Government, by taxation or otherwise, and how the monies available for expenditure by the Government are to be spent. Those matters are not justiciable. In a different context in R -v- DPP, ex parte Kebeline, R –v- DPP, ex parte Rechachi [1999] 4 All ER 801 at 844,[2002] 2 AC 326 at 381, Lord Hope of Craighead said:-

“In this area difficult choices may have to be made by the Executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the Courts to recognise that there is an area of judgment within which the judiciary will defer on democratic grounds to the considered opinion of the elected body or person who act or decision is said to be incompatible with convention.”

These words were applied to the distribution of State benefit by Laws LJ (with whom the other members of the Court of Appeal agreed (in R (on the application of Waite) -v- Hammersmith and Fulham London BC [2002] EWCA Civ 482 at [36], [37]. Laws LJ said at [37]): “… the distribution of State benefit lies peculiarly within the constitutional responsibility of elected Government”. In Steele Ford & Newton (a firm) –v- CPS [1993] 2 All ER 769 at 774, [1994] 1 AC 23 at 33, Lord Bridge of Harwich referred to –

“….. the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over the levying and the expenditure of the public revenue”.”

Carson supra went to the Court of Appeal but the passages I have cited were not undone. They suggest to me that in relation to a monetary question such as the appropriateness of legislative provisions for the payment or recoverability of subsidies the Courts, even where they are not shut out entirely, should be prepared to intervene in any question as to the lawfulness of the legislative provisions only in the most obvious and extreme cases – see also R. –v- Secretary of State for the Environment ex parte Camden LBC (CO/131099) 6^th October 1999 per Moses J..

Mr Giffin’s next authority was Wilson and Others –v- Secretary of State for Trade and Industry [2003] UKHL 40 in which the speeches were released on the 10^th July 2003 – see, now [2003] 3 WLR 568. The case was concerned with section 127 (3) of the Consumer Credit Act which denies enforceability to a credit agreement where prescribed terms have not been incorporated into a document signed by the borrower. The provision operates so that where it is not complied with the loan made by the moneylender is irrecoverable and he loses also such security as he may have been given. No discretion is operable and it is recognised that the provision can work very harshly. It was common ground in Wilson that section 127 (3) pursued a legitimate aim. At paragraph 72 Lord Nicholls said:-

“72.

Undoubtedly, as illustrated by the facts of the present case, section 127 (3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in cases of deliberate non-compliance. The consequences also apply where, as in the present case, a borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

73.

The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify.”

Then at paragraph 74 Lord Nicholls continued:-

“Despite this criticism I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, to decide that compliance with certain formalities is an essential prerequisite to enforcement of certain types of agreement. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the Court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent.”

In his paragraph 75 Lord Nicholls said:-

“It must be open to Parliament to decide that, severe though this action may be, it is an appropriate way of protecting consumers as a matter of social policy.”

In his paragraph 79 Lord Nicholls continued:-

“The Court should simply have regard to the relevant statutory provision and its policy objective and consider whether the provision bears so unfairly on the applicant that it was not open to Parliament to adopt this provision, even as part of an overall package, in response to the social problem in question.”

Lord Nicholls was there considering the rights of the moneylender in relation, in particular, to Article 1 of the First Protocol. He accepted that because of his judgment on issues dealt with earlier in his speech the Human Rights Act did not in fact apply but – see his paragraph 27 – the speech contained Lord Nicholls’ views on what the position would have been had the Human Rights Act applied. It is plain, in its context, that whilst, in a sense, obiter, the passages I have cited were intended to give general guidance. Lord Hope, too, recognised that as Article 1 of the First Protocol was not engaged he did not need to examine whether section 127 (3) was compatible with the rights that were guaranteed by that Article but he indicated that had it been necessary for him to do so he would have reached the same conclusion as Lord Nicholls had done and for the same reasons – paragraph 109. Lord Hobhouse – see paragraph 138 considered that the Consumer Credit Act did not go beyond what was justifiable under Article 1 of the First Protocol. He continued:-

“It is argued that the legislature could have made the sanction discretionary. Maybe. But it does not follow that the view that the sanction should here be automatic was not a permissible view.”

Lord Scott took the view that the protection offered by section 127 (3), harsh though it might be in some cases in the way it bore upon lenders, was not disproportionate – paragraph 169.

Anglesey sought to distinguish Wilson on the ground that, unlike (it was said) the provision before me, it was a case in which in some instances the harsh effect of the legislation could be justified. But Paragraph 6 deals with all cases including extreme ones in which there has been deliberate, even fraudulent, and persistent failure to seek Rent Officer determinations and where there has been very great loss to the public purse in consequence. In some such cases it would be impossible to argue that Paragraph 6’s provision that there should be a nil subsidy was unjustified, even had section 140 C (3) not been deployed to mitigate Paragraph 6’s unqualified effect. The suggested distinction does not exist.

Wilson, albeit dealing with a very different factual and legislative context, shews that, even where Convention rights are assumed to be engaged, a very broad latitude is given to the legislature. It shews that when the Court, as it must, pays regard to broad matters of social policy it is unlikely to suffice, to undo a legislative provision, that the complainant can point to unfairness, even to harshness inflicted without any possibility of discretionary relief, in the individual case. A fortiori it will be difficult for a complainant to succeed where no Convention right is engaged, where there is discretionary relief available and where what is required under the legislation is no more than repayment of the whole or part of a subsidy which, under the legislation, should never have been paid.

Whilst Wilson was concerned with social policy, it is not just to broad considerations of social policy that the Courts may need to have regard. As the citations from Carson supra show, the legislature’s policy in relation to financial and, I would add, fiscal and administrative areas, are matters to which the Courts must similarly pay regard. Section 140 C (3) and the regulations under the SSA Act 1992 including Paragraph 6 can reasonably be read as together intended by the legislature, by the availability of a sanction, to encourage and procure a due compliance by recipients of subsidy with the conditions (not said to be unreasonable) which the legislature had required to be satisfied. I have no reason to suppose that that was not amongst the objects which the legislature intended to be served by Paragraph 6 and I cannot regard that purpose as not being an entirely proper policy objective.

Paragraph 6 deals with a huge range of possible circumstances from, at the most serious end, those in which a deliberate conscious failure on the part of a Local Authority in very many instances not to apply for determinations by the Rent Officer has led to a substantial loss to the public purse in that excessive subsidy will have been falsely claimed, paid and retained. At the least serious end there may be nothing more involved than a single inadvertent case of an administrative oversight upon a renewal of benefit, an oversight which caused no loss to the public purse. In all such cases the determination under Paragraph 6 itself will be taken to be nil but the harshness of that, as it would plainly be at the less serious end, is capable of being mitigated by the double discretions of section 140 C (3) of the SSA Act 1992 whereunder, as has been seen, the Secretary of State is not obliged to seek any or a full recovery but may recover the whole or such part of the payment as he may determine.

If, as Wilson shews, even an (assumed) Convention right may have to yield, on policy grounds, to a legislative provision that was seen to be harsh in its application on the facts of the particular case and where the provision gave no prospect of discretionary relief, then the difficulties in Mr Drabble’s way are hard to exaggerate.

Mr Giffin’s reference to The Queen –v- Min. of Agriculture, Fisheries & Food, ex parte National Farmers’ Union [1997] ECR 1-4559 could only make Anglesey’s task more difficult. The case dealt with the lawfulness or otherwise of Art 9 (2) of Community Regulation (EEC) No. 3887/92. Queen’s Bench had referred to the ECJ the question of whether the penalties laid down for farmers who, even innocently, mis-stated the areas they had set-aside were in breach of Community law. MAFF had put into practice Art 9 (2), the provisions of which were such that farmers who, even without false intent or serious negligence, had overstated the relevant areas received only reduced payments and where those who had overstated by more than 20% lost all benefit. Grave financial problems were accordingly suffered by some farmers – I-4601. The ECJ held at I-4609:-

“49.

As regards, first of all, the principle of proportionality, it is settled law that, in order to establish whether a provision of Community law complies with that principle, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it (see, inter alia, Case 426/93 Germany –v- Council [1995] ECR I-3723, paragraph 42).

50.

The Court has also stated on numerous occasions that, where the evaluation of a complex economic situation is involved, the Community institutions enjoy a wide measure of discretion. In reviewing the legality of the exercise of such discretion, the Court must confine itself to examining whether it is not vitiated by a manifest error or misuse of power or whether the institution in question has not manifestly exceeded the limits of its discretion (see, to that effect, Joined Cases C-296/93 and C-307/93 France and Ireland –v- Commission [1996] ECR I-795, paragraph 31).”

Article 9 (2) was held not to offend the principle of proportionality. Article 9 (2) permitted exceptions only in cases of force majeure; there was no discretion which could temper its application to, for example, cases of hardship or innocent mistake.

To revert to the case before me, here there is no Convention right; there is a proper policy objective. What is sought is repayment only of public money which, strictly speaking, should never have been paid (and only part of it) and a discretion is available to make the decision fit the individual case. All in all, the difficulties in the way of regarding Paragraph 6 as excessive, unreasonable or disproportionate are, in my judgment quite insurmountable.

Mr Drabble, looking now to the Secretary of State’s decision rather than to the legislation lying behind it, argues that for the Secretary of State to require repayment of £444,661 is a wholly disproportionate exercise of the discretion conferred by section 140 C (3). He puts his argument a number of ways.

Mr Drabble emphasises that on the facts the failure to refer to the Rent Officer was unlikely to have had and did not in fact have any large financial consequences; there was virtually no loss to the public purse. There was no deliberateness in the failure to obtain the Rent Officer’s determinations. As the benefits had undeniably been paid out to claimants by Anglesey there was no good reason why the Secretary of State should now recover over £440,000 to which Anglesey would have been entitled had Anglesey only obtained the Rent Officers’ determinations that it would have got had they been applied for. Moreover, for it to be required to repay so large a sum bore particularly heavily on a small Local Authority such as Anglesey. Mr David Elis-Williams, Anglesey’s Corporate Director of Finance, gave evidence that the repayment of so large a sum represented a levy, so to speak, of £6.70 per head of Anglesey’s population or a £17 Band D Council Tax. There had been no attempt, urges Mr Drabble, to hide the failure to obtain Rent Officer’s determinations and, indeed, Anglesey itself had prompted inquiry into the position as it had been for the year 1997/98.

To the same end is an argument based on the fact that the Secretary of State employed “a percentage basis” in the course of exercising his discretion. £444,661, as I have mentioned, is 20% of the £2,223,305 of the subsidy paid without Rent Officers’ determinations on renewals. Mr Gorst describes how, faced with a significant number of cases in which Authorities had failed to obtain Rent Officers’ determinations and where, on the face of things, Paragraph 6 applied, the DWP had taken a tranche of some 20 cases for study so as to develop a consistent approach to all the cases. Study of the 20 led them to develop a system of percentage banding where the sum sought to be recovered was related to a percentage of the amount that had been overclaimed and overpaid by way of subsidy. The DWP then applied that banding system to some 72 cases where the Local Authority had failed to comply with the conditions of the subsidies which they had claimed and had been paid. Of the 72, 48 fell into a nil recovery band, 2 into a 5% band, 11 into a 10% band and Anglesey alone into 20% band. In 4 cases, in each of which there had a material loss to the public purse, full recovery was made. 6 cases still await decision.

Where many cases arise for decision and where a fair response requires consistency between one decision and another the use of some such banding system, as it seems to me, cannot be described as unreasonable or improper. Nor can it fairly be said that the use of some such system starts from an improper assumption that the whole wrongly paid sum was to be held to be recoverable unless factors existed to point the DWP down to some lower band of recovery. On the contrary, the unchallenged evidence of Mr Gorst was:-

“….. We took a position of nil recovery as our starting point, and considered what grounds there were to impose some higher level of recovery, rather than starting with an assumption of full recovery and asking whether there were grounds to recover something less than the full amount of the overpayment.”

Nor was it the case, once a percentage banding had been allocated to a particular Authority, that there was no consideration of what it meant in monetary terms. Mr Gorst says:-

“When we met to discuss the recovery decisions to be made and identified what we thought were the right percentages to be recovered, we did also calculate what that would mean in terms of the actual sum recovered and asked ourselves whether we regarded the figure as appropriate.”

Nor was it that any financial difficulty that Anglesey would encounter in being required to repay the sum was not in mind. Mr Gorst’s evidence indicates that the mechanism through which such difficulties, if they existed, were to be met, was by varying the period over which the repayment was to be required. He noted also that at the time the DWP made its decision Anglesey’s general funds stood in credit to the extent of some £2.8m. Given that the appropriateness of the figure to be recovered was considered, that consideration, coupled with consideration of the Authority’s resources and of the period for payment, together amount, as it seems to me, to an adequate and reasonable consideration of the Authority’s ability to pay and of any difficulty it might have in paying.

Given that Mr Gorst’s witness statement has not been challenged in evidence and given his rôle in decisions, I think it right to test the Defendant’s position by reference to what he says and he specifically confirms in his witness statement that all the material now relied upon by Anglesey was taken into account when the DWP made its decision. He deposes also to the fact that Anglesey stood out amongst other Authorities by reason of the magnitude of its administrative shortcomings. It had a lack of controls; there were deficiencies from the top downwards and the District Auditor had classified the matter as one of corporate failure. Anglesey had not been proactive in identifying problems and its staff also failed to refer claims to the Rent Officer knowing that they ought to have done so. Why they had not done so, said Mr Gorst, was because of Anglesey’s failure to provide proper resources, proper supervision and management and proper monitoring of the administration of housing benefit.

I do not understand Anglesey to resist his view that there was a deficient administration of its Housing Benefit claims although Anglesey would characterise its errors as less serious and endemic than would Mr Gorst. For the Court on its own part to apply or disapply a label such as “serious” to the shortcomings would require a survey which I am in no position to conduct even were it appropriate to do so. In the absence of rebuttal I must take Mr Gorst’s reference as accurate when he says that the District Auditor’s report revealed serious and systemic shortcomings in the administration of Anglesey’s Housing Benefit.

Nor do I have any material that enables me to hold that Anglesey, amongst all the other Authorities, was treated in any way inconsistently or that it was unfair that it alone should be assigned to the 20% band.

Mr Drabble argues that neither Paragraph 6 nor the exercise of the discretions under section 140 C (3) take into account the important distinction, as he saw it, between a failure to apply for a Rent Officer’s determination of an initial claim for benefit and a failure in respect of a renewal claim. As for Paragraph 6, its failure so to distinguish is well capable of being compensated for under section 140 C (3). But in any event the suggested distinction is significant, if at all, only as to the likelihood of the Housing Benefit actually paid being excessive in the absence of a Rent Officer’s determination. At a time of static rents, as was the case in Anglesey in the relevant years, there was less risk of excess benefit being paid on renewals than on initial claims but there still could be excess benefit paid where the benefit-claimants’ housing needs had diminished. It is a difference only that Mr Drabble suggests, not a distinction, and it is possible to suggest many other possible differences – between single failure and persistent failures, fraudulent failure and innocent failure, deliberate failure and accidental failure – not expressly referred to but which can all be taken into account under section 140 C (3). Moreover, given that Mr Gorst’s evidence was that the appropriateness of the particular figure was considered, I have no ground on which to hold that the suggested difference was not taken into account.

Mr Drabble argues that the imposition of a “penalty” of £444,661 for errors in administration (errors causing no real loss to the public purse and no gain to Anglesey) is out of all proportion to penalties imposed for comparable mistakes in other contexts. I have already indicated that reference to “penalty” is inapt and, of course, there is a sense in which Anglesey did gain in that it received subsidy to which it was not entitled. As for comparison with other regimes, it was not taken further in any detail but in any event I doubt the propriety of such comparisons; Parliament, in choosing this particular regime can be taken to have preferred it to any other. Moreover, there is a logical difficulty in describing the sanction built into this regime as plainly excessive (in terms of being stronger than it need be to achieve its purposes) where it is apparent it did not work; the deficient administration which the availability of sanction sought to deter nonetheless took place. Further, Mr Drabble’s challenge to the Secretary of State to show any example of comparable “penalty”, was, for what it was worth, well met by Mr Giffin’s reference to the NFU case supra which involved a regime in which wholly innocent administrative error was to be visited with substantial sanction and without there being any intervening discretion to soften its blow.

It is to be remembered that I am not required to decide whether the Court would have exercised the available discretion in the same way had it been empowered to do so nor whether there were, objectively regarded, any better ways in which the discretion could have been exercised. Rather, in “Wednesbury” terms, I need to look to see whether there were taken into account any factors that should not have been or were left out of account matters that should have been considered. I must ask, too, whether the decision was such in Anglesey’s case that a reasonable person duly addressing himself to the exercise of the discretion could properly have exercised it as did the Secretary of State. Looking in that way at the decision to require repayment of 20% only of what was received by Anglesey by way of overpaid subsidy, I cannot begin to hold the exercise of the discretion to fail the test I have described.

The amended Claim Form seeks an order quashing the Secretary of State’s decision to recover £444,461 and a mandatory order requiring the Secretary of State to retake his decision whether to recover any part of the overpaid housing benefit in accordance with the law. For the reasons I have given I have not found the decision taken by the Secretary of State to be not in accordance with the law, nor have I found any other adequate reason to quash the decision to recover the £444,461. I must accordingly refuse all relief sought by the amended Judicial Review Claim Form.