A, R (On the Application Of) v The Secretary of State for Work And Pensions

This is an application for judicial review of the Housing Benefit (Amendment) Regulations 2012; SI 3040/2012 (“the regulations”). Permission was granted by HHJ Anthony Thornton QC on 26 June 2014. It is submitted on behalf of the Claimant that this is a test case of some importance. The Defendant’s stance is that the application raises questions of principle which have already been answered by the Court of Appeal in R (MA and others) v Secretary of State for Work and Pensions [2014] EWCA Civ 13; [2014] PTSR 584, and that there is no material distinction between that case and this.

The Claimant

In 2012 X contacted A again. He made threats of serious violence, which this time she reported. The local Police and other agencies took these threats seriously, and her local authority carried out some adaptions to her house under its Sanctuary Scheme. I have read a letter from her support worker which summarises that work [C23]. For reasons which I hope are obvious I do not set out the nature of that work in this Judgment. A had to move out of her house whilst the work was undertaken. She understood that it was an expensive operation. She has the continued support of the Police, support workers, her neighbours and her family. Her witness statement refers to the consequences of these matters for her psychological well-being and to her fears and concerns for the future for her son and herself. She has been diagnosed with PTSD, takes anti depressants and has been suicidal. There can be no lack of sympathy for her in the situation she now finds herself.

A receives Housing Benefit. Until the regulations came into effect, that was in a sum equal to her rent. However, as a consequence of the 2012 Regulations A is deemed to be under-occupying the house she and her son live in, for there is a third bedroom. The consequence of the regulations is that her Housing Benefit is cut by 14%, leaving a weekly shortfall of (currently) £12.61. A says that makes this house unaffordable for her because she cannot afford to pay the shortfall from her income-related employment support allowance.

In 2013, with the assistance of her solicitor, she applied for and was granted a Discretionary Housing Payment (a “DHP”) for 12 months. This was calculated to cover the shortfall until 31 March 2014 and was paid in full. However, as a result of a loophole in the regulations, A qualified for some transitional protection because she had been in continuous receipt of housing benefit since before 1996 (the “loophole”) and in fact her housing benefit was not reduced in the year to March 2014. The DHP payments were made in ignorance of the loophole, and consequently A’s rent account went into credit.

That will not be for long. The transitional protection has come to an end, housing benefit has now been reduced by 14%, and the DHP has been cancelled. Consequently the housing benefit A now receives is 14% less than her rent. The DHP “overpayment” will not be recouped. The intention is to set off the resulting credit in her rent account against the current shortfall in benefit. That credit will run out in about March 2015, and A will then have to find a way of mitigating the difference between her rent and her housing benefit, or if she cannot, apply for another DHP. At that stage there is the prospect that A will not be able to afford to remain in the house which has been her home for 25 years, and her son’s home for his entire life. She suffers from PTSD, and is understandably concerned about the future, particularly if she has to move out of a house which has the security measures provided by the Police to help protect her from X.

A does not know why she was allocated a three-bedroomed property 25 years ago, when she only needed a two-bedroomed property, but she thinks it was because there was a surplus of 3 bed roomed properties and a shortage of two bed roomed properties. It appears that may still be the case. Ms Gallagher referred me to a newspaper report of the shortage of smaller public sector housing in the area, and the problems this was creating for those who wanted to downsize.

Before I come to the Regulations and the Policy underlying them, I should refer to the evidence about Sanctuary Schemes and DHPs, in particular their nature and use, their funding and the published Guidance.

Sanctuary Schemes

These Schemes have been successfully established across the country since 2006. Even a brief explanation of their aims and scope are sufficient to demonstrate what a good idea they are. One of the obvious benefits is that victims of domestic violence and the like can remain in their own homes (if they want to) rather than being forced out by the fear of violence. Leaving their home as a result of domestic violence can have serious consequences for the stability of their lives. Government statutory homelessness statistics show that domestic violence is consistently reported as the main reason for the loss of a last settled home for 12-13% of homelessness acceptances in England; see the witness statement of Polly Neate of Women’s Aid at [C4]. Ms Gallagher submitted that Sanctuary Schemes are a means of homelessness prevention. Whilst the work costs money, it avoids the expense and upheaval of re-housing and (as A’s case well illustrates) of losing the support network of friends and neighbours that takes years to build up and which is so important for the continued safety and general well being of people in A’s position. It is these people who help provide her with the day to day friendship and sense of community that she needs.

The safe room may or may not be the “extra” bedroom in the house. In that sense this case is different from those cases where the regulations provide that there is a deemed need for (say) two bedrooms, but the circumstances of the tenant are such that in fact there is an actual need for three bedrooms. The problem in this case is that A may need to move from her adapted (safe) home because she will not be able to afford the rent, rather than have an actual need for the extra bedroom.

Ms Gallagher submits that this case has far wider implications than the outcome for A, for this issue will arise in relation to others in Sanctuary Schemes who rely upon Housing Benefit to pay their rent. In 2013, the Rt. Hon. Yvette Cooper MP obtained some information from the Home Office about the numbers of those in Sanctuary Schemes who were affected by these regulations. She has passed that information on to A’s solicitor, who produces the information in a spreadsheet [C39-41]. Whilst some local authorities do not have available data, the information which was available showed that there were 5,831 households in Sanctuary Schemes across England as at 30 September 2013. Of those 281 were affected by the operation of the under occupancy provisions in these regulations.

Subsequently the Home Secretary provided some further information in response to a question from an MP which indicated that as at 28 October 2013 there were 7,100 properties adapted pursuant to Sanctuary Schemes; see paragraph 13 of Ms Carrier’s witness statement [C170]. That was said to be a rise of 17% on the previous year. The Claimant’s case is that the numbers of those affected by the effect of these regulations would also have increased.

For the purposes of this case Ms Carrier made her own enquiries, making requests of local authorities under the Freedom of Information Act. She produces a summary of the responses in an Appendix [C181-2]. Of the 371 local authorities contacted, there were 127 responses from local authorities operating Sanctuary Schemes. The figures are not directly comparable to the earlier data, but they do assist.

The number of households in Sanctuary Schemes was:

The number of new individuals added was:

The total amount spent on supporting Sanctuary Schemes was:

This evidence provides some confirmation of what is generally considered to be the position – that the majority of victims of domestic violence are women. Ms Gallagher summarises the material relied upon by the Claimant at paragraph 3.11 of her skeleton argument. I do not understand there to be any issue as to that general conclusion. Whilst the response to the specific requests relating to sanctuary schemes was only 1 in 3 or thereabouts, I am satisfied that this evidence shows the continued increase in the use of Sanctuary Schemes, and that the overwhelming number of those protected by these measures are women.

None of that is particularly controversial. However, there is one further piece of evidence provided by the replies to these requests which was the subject of some argument. Local authorities were asked for the number of households in sanctuary schemes affected by the under-occupancy provisions. The answer was 120. The average gap in funding was £16.70 per week (above the average figure). Of that group of 120, the number receiving DHPs was 24 (or 20%). The Claimant relies upon that statistic to show that DHPs are not being provided to 80% of households in sanctuary schemes which are affected by these regulations and who should be receiving DHPs. The Defendant says that it proves nothing of the sort. His case is that DHPs are properly funded (I return to the detail of the evidence relied upon below), that people in Sanctuary Schemes are plainly eligible for the payment, and the fact that only 20% of this relatively small number are receiving DHPs is just as consistent with the proposition that they are able to fund the gap between their housing benefit and the rent from other sources as it is with the Claimant’s case. The submission is that if anything, this statistic shows that the system is working. I observed during the course of argument that I would need to know more about the 80% before I could draw any conclusions from these figures. That remains my view. The statistic shows that DHPs are being paid to people in Sanctuary Schemes. Indeed that is A’s experience. What we do not know is why they are not being paid. It may be that it is because applications are being refused. Or it may be because claimants are bridging the gap in other ways.

Discretionary Housing Payments

Ms Carrier produced the DHP policy for A’s local authority [C275] which was published in March 2013. It makes no specific reference to those in Sanctuary Schemes, although we know that at or about that time A was awarded a DHP for 12 months. That local Guidance refers to the Government’s (then) draft Guidance, and to the targeting of payments to the most vulnerable of those affected by these welfare changes. At paragraph 1.9 of that Guidance there is a reference to claimants who are living in properties adapted to deal with disability. At paragraph 2.3 there is a reference to the need to “support victims of domestic violence (move to a place of safety)”. As Ms Gallagher submits, the victim of domestic violence in a Sanctuary Scheme does not wish to move. The Guidance does however make it plain that the discretion is broad and that DHPs can cover reductions in housing benefit for under occupation. As to length of payment, it provides at paragraph 2.17 that a DHP will not normally be awarded for a period exceeding 12 months, and in the following sub paragraphs that the maximum period of an award will be the remaining duration of the financial year 2013-14, with indefinite awards in certain circumstances; “...for example i.e. disabled person with adapted accommodation who is under occupying where moving would incur costs to adapt another [property]. The financial circumstances of the individual will be reviewed annually”.

The use of DHPs in the period from April 2013 to March 2014 was reviewed in a paper published by the DWP in June 2014. The table at [C198] gives an analysis of 383,267 of the 392,453 total awards of DHP by 6 “expected outcomes”. The figures for each outcome, followed by the number of awards (and the percentage of the whole) are set out below:

Help secure a move to alternative accommodation; 24,938; 7%

Help with short term rental costs while the claimant seeks employment 36,383; 9%

Help with on-going rental costs for foster carer; 667; < 0.5%

Help with short-term rental costs for any other reasons; 207,031; 54%

The Claimant draws two points from this information. Firstly that the only “expected outcomes” which include provision for on-going costs relate to disabled persons in adapted accommodation and foster care, both of which categories are now catered for by exemptions. Secondly, that once again there is no reference to those in Sanctuary Schemes. That is right, but these statistics are to be read in context. Firstly these expected outcomes are necessarily broad categories. Given the numbers affected by these measures it would have been surprising if those in Sanctuary Schemes had featured in this analysis. Secondly the “on-going costs” analysis pre-dates the revision of the DHP Guidance.

The DWP publishes a Guidance Manual for DHP payments, which is reviewed annually, most recently in April 2014 [E1-49]. There are some significant passages. Firstly as to period. This guidance was revised on review to emphasise that long-term awards could be made:

At paragraph 4.0 [E34] the Guidance emphasises the discretionary nature of the scheme and that each case should be considered on its own merits rather than on a set of rigid pre-defined criteria. The local authority’s policy should be flexible. The examples given in the Guidance are said to be “... simply ideas as to what you may wish to think about when considering a DHP”. There is a non-exhaustive list of objectives, which include “safeguarding residents in their own homes”; “supporting domestic violence victims who are trying to move to a place of safety”; “supporting the vulnerable and elderly in the local community”; and “helping claimants through personal and difficult events”.

There are some further references to those who have suffered domestic violence.

In response to the Defendant’s evidence, the Claimant relied upon a witness statement of 11 November 2014 from Roger Harding, the Director of Communications, Policy and Campaigns at Shelter. His evidence as to the duration of DHPs draws on research Shelter commissioned when intervening in MA. Of the awards referred to in the 120 responses from local authorities, 29% had no maximum period. The balance had some maximum, whether express or by virtue of the policy, although some were subject to an “exceptional circumstances” provision. 15 of the 25 policies reviewed stated that DHPs would only be made for a short period.

Ms Gallagher submits that the absence of a reference to those in Sanctuary Schemes in the DHP Guidance is to be noted, and that in practice short-term payments are made. Mr Eicke QC would submit that the Guidance raises the subject of domestic violence, makes reference to adapted accommodation (albeit for the disabled) and envisages cases where longer-term awards can be made. Further he submits that (i) this is not a case where there is simply no relevant reference in the guidance, for the circumstances of the group in question are addressed even if the group itself is not specifically identified, and (ii) the power to make longer-term awards is dealt with.

I also had some evidence about the funding of DHPs. Ms Walsh’s evidence is at paragraphs 66 to 75 of her 1^st witness statement [D22] and in her 2^nd witness statement [D126]. £155M was provided to local authorities at the beginning of the financial year, and in July 2013 there was a further package of funding of £15M plus a £20M DHP reserve fund. Local authorities were able to bid for a share of the reserve fund. Only 86 of the 380 authorities did bid, and the total of the bids received was £17.3M, The DHP funding for 2014/15 is £165M, £60M of which is in respect of those affected by these size criteria. That said, none of the funding is ring fenced. A’s local authority had funding of £696,031 for 2013/14, and bid for a further £500,000 from the reserve fund. Of the £1,196,031 it had available, it committed £929,992. Its funding allocation has been increased to £965,532 for 2014/15. Like all local authorities, it has the power to use its other funds for DHPs, up to a limit of 2.5 times the funds provided by central government. For A’s local authority that would mean a ceiling of £2.4M.

In her 2^nd witness statement, Ms Walsh referred to the £25M specifically incorporated into the DHP fund to assist disabled claimants because the £20M baseline funding was not thought to be sufficient to cover that group. She says this:

Mr Harding’s evidence is that the DHP spending patterns of local authorities are “more generally characterised by unevenness rather than by chronic underspend”. Shelter’s research suggested that as a whole there was an overspend on DHPs. He suggested that the lack of clarity from the government on the future funding of DHPs undermined the confidence of local authorities to make longer awards.

The Policy behind the Regulations

to encourage mobility between housing in the social sector;

to strengthen incentives to work;

to make better use of available social housing; and

Mr Eicke QC took me through the judgment of Lord Dyson MR in MA in some detail to make good a number of his core submissions. The evolution of the policy and of the regulations is reviewed at paragraphs [15] and following.

Not all of the evidence which was before the Court in MA was before me in terms. But Ms Walsh provides a summary and gives the references in Hansard to the debates. There is no substantial challenge to that evidence, and in any event I am entitled to adopt the account given by the Master of the Rolls as to the evolution of the policy. I have in mind Ms Gallagher’s concern that MA was a disability case and that consequently the emphasis is on disability rather than other matters. I need to pay attention to the context of some of the material quoted before accepting its relevance to this case.

The fact that so much of the expressed concern in the discussions and debates about the implementation of this policy was about disability appears to be a reflection of the fact that of the 660,000 people estimated to be affected by the reductions in Housing Benefit a substantial percentage would be disabled. 180,000 of these were said to be in receipt of DLA, and the numbers rose to 420,000 when other criteria were used. The fact that they take up so much of the debate is, therefore, hardly surprising. In contrast it appears that the effect on victims of domestic violence generally or those in Sanctuary Schemes in particular was not expressly considered during the discussions and debates in Parliament. That may be (at least in part) because of the relatively small numbers of people affected.

Despite the absence of express consideration, Mr Eicke QC’s submission was that the debate about whether to adopt a system of exceptions and exemptions on the one hand or to use a flexible fund on the other was of a more general application. The issues of affordability, targeted benefit payments, whether proposals were workable or over complex, the benefits of flexibility and of a locally administered scheme, were all matters which arose in the context of the general debate. The focus was on disability and the position of foster parents (those being cases raised by the lobby) but there was also consideration of other “hard cases”.

This is to be seen in the material considered in MA in two places. Firstly at paragraph [32] of Lord Dyson’s judgment where he refers to the “vigorous debate” in the House of Lords on 15 October 2012, and the contribution of Lord Freud (the Parliamentary Under-Secretary of State).

Secondly there is reference to the debate the next day in the House of Commons at paragraph [33]. The Government’s position on the draft regulations was defended by Steve Webb MP, who is reported as saying that:

Standing back, the simple point is that one of the obvious (and expressed) attractions of a broad discretionary fund is that it can cater for the less common but deserving case. By adopting the DHP in this context, adding to the available funding, and putting its discretionary nature and flexibility at the fore, the Government must be taken to be recognising that the DHP scheme can cater for any hard case, whether or not it is expressly referred to in the debates.

Impact Assessments

The assessment recognised that there were higher numbers of single female Housing Benefit claimants of all ages than single male claimants; the difference is stark – 340,000 (50%) to 160,000 (27%), and that the majority of those additional female claimants were lone parents of working age. The assessment continues:

The Regulations

Regulation B13 provides (so far as material):

The maximum rent (social sector) is determined in accordance

The relevant authority must determine a limited rent by—

The appropriate percentage is—

The Regulations now also provide for one additional bedroom in any case where the claimant or the claimant's partner is an adult who requires overnight care, is a qualifying parent or carer (being a foster parent or carer) or is a member of the armed forces away on operations. The latter exemption also applies to parents with adult children in the armed forces who continue to live at home. Ms Gallagher submits that some of the exemptions introduced involve individualised decision-making; in particular she refers to the Housing Benefit and Universal Credit (Size Criteria) Amendment Regulations 2013, concerning severely disabled children unable to share a bedroom with a sibling by virtue of their disabilities introduced in response to the Divisional Court’s decision in MA. She submits that this shows that there can be no proper objection to an exception for Sanctuary Schemes which involves that degree of individualised decision-making.

The Grounds

There are three grounds of challenge:

Ground 1 -Article 14

Justification

The general standard for justification is that set out in Stec v UK (2006) 43 EHRR 28at [51] cited by the Supreme Court with approval in Humphreys. The width of the margin of appreciation varies according to the context: ibid at [52]. In Stec the ECtHR went on:

Lord Dyson MR considered the position in MA at [49] and following, expressly agreeing with the reasoning of Henderson J in Burnip and adopting the “manifestly without reasonable foundation” test. Ms Gallagher does not demur from that approach, but draws my attention to Lord Dyson’s judgment in MA at [56]:

Lord Dyson MR returned to the nature of the test in his conclusions about justification in MA:

Ms Gallagher referred me to the approach of the Court of Appeal in Burnip. That was a disability case in the context of private sector accommodation. Henderson J dealt with the issue of justification in his judgment. The effect of the availability of DHPs was a matter of central importance. At paragraph [46] he found that whilst they were available in principle as a possible way of bridging the gap between housing benefit and rent, they could not be regarded as a complete or satisfactory answer to the problem that faced the Claimants in Burnip. That conclusion followed from what he described as the “cumulative effect of a number of separate factors”. These were that:

the payments were purely discretionary in nature;

their duration was unpredictable;

they were payable from a capped fund; and that

The Court of Appeal in MA did not disagree with the approach in Burnip, but reached a different conclusion on the facts of that case. At [64] Lord Dyson MR says this:

At paragraphs [71] – [72] Lord Dyson MR says this:

Ms Gallagher’s submission was that this case was closer to Burnip than to MA, and that the cumulative effect of the factors in A’s case (and those in her situation) were such that it was not a fair and proportionate response to the discrimination against her sub-group to rely on DHPs. The proper response to that discrimination was an exclusion of those in Sanctuary Schemes from the effect of the policy.

Ms Gallagher would also rely upon the following matters:

None of the DHP Guidance referred to A’s sub-group.

Mr Eicke QC’s submissions were to the effect that none of those factors was sufficient, whether taken separately or cumulatively. He took me to R (JS and another) v Secretary of State for Work and Pensions [2014] EWCA Civ 156, to MA and to the recent decisions in R (on the application of Rutherford) v Secretary of State for Work and Pensions and ors [2014] EWHC 1613 (Admin); R (on the application of Cotton) v Secretary of State for Work and Pensions [2014] EWHC 3437 (Admin); and the decision of the Upper Tribunal in Cruickshanks v (1) Glasgow City Council and (2) SSWP (15 August 2014) CSH/777/2013. He submitted that the position following MA was clear, and that it could not be argued that DHPs were an irrational response. He emphasised their discretionary nature and the advantages that such a locally administered scheme brought for targeting payments where they were needed. His submission was that not all tenants of Sanctuary Scheme properties would need to be excepted from the regulations, and that those who had a need fell within the scope of the DHP scheme and the revised Guidance.

It is instructive to consider A’s position in the light of the reasoning in Burnip and MA, and the subsequent first instance decisions, but I do not lose sight of the fact that this is a decision on its own facts, and that the scheme should be considered as a whole, rather than by simply comparing the facts of this case with the facts of others.

Lord Dyson identifies the main reasoning for the conclusion in Burnip that the proper response to the discrimination that arose should have been an exception from the effects of the policy at paragraph [71] of his judgment in MA (see above). He sub-divides the reasons into three. Firstly, that the category of persons excluded would be “very limited”. Given the numbers involved in this case, A can realistically argue that she is closer to Burnip than to the main group in MA.

Secondly, that the group would be “relatively few in number, easy to recognise, not open to abuse and unlikely to undergo change or need regular monitoring”. On the face of it once again A can realistically argue that she is closer to Burnip than to MA.

There is one important point to make about the analysis to this point. It is apparent from the decision in MA that membership of a small easily identifiable group is not as powerful a point as it might appear from Burnip. The position of Mrs Carmichael in MA demonstrates that. Mrs Carmichael was a disabled lady living with her husband. She needed a specialist bed and room for carers. She and her husband could not share a bed and so she had an objective need for a further bedroom. It was argued that for all practical purposes her case was indistinguishable from the child in Burnip who needed an extra room as a result of their physical disability. Nonetheless Lord Dyson MR held that there was nothing irrational in distinguishing between an adult and a child in these circumstances. Her claim failed, and implicit in the decision is that even where someone in the deserving circumstances of a Mrs Carmichael can show an objective need for a further room, the fact that she is part of a small and easily identifiable group is not enough to warrant an exception.

The third point made by Lord Dyson MR at paragraph [71] of his Judgment is very much against A. He concluded that since Burnip the DHP fund had been increased, and considered that Henderson J was not aware of (or had made no reference to) repeated statements by the DWP that the fund would be kept under review and topped up if necessary. Those matters significantly weaken the arguments which persuaded Henderson J and the other members of the Court of Appeal to find that the DHP route was not a fair or proportionate response.

The importance of this third point is also apparent from reading the decisions in Cotton, Cruickshanks and Rutherford. I note that at paragraph 28 of his judgment in Rutherford, Stuart-Smith J considered that the evidence available to the court in Burnip about the private sector scheme in operation and the “conspicuous failure” to plug the gap by the awarding of DHPs was “... the foundation of the Court of Appeal’s reasoning and conclusion ...”. The evidence before me about the funding of DHPs is, as it was in MA, Rutherford and Cotton, of a different nature. It is to the effect that the money is there, that the Guidance covers claimants in A’s position, and that local authorities are expected to honour their public law duties. In Rutherford, Stuart-Smith J decided that the DHP scheme provided a suitable assurance of present and future payment in appropriate circumstances; see [66]. There is no “conspicuous gap”.

Shelter and others have doubts about whether the funding will be there, and there may be some cynicism about how the DHPs will be administered. The lack of express reference in the Guidance is in point here. As to that, the decision in Cotton is of some relevance, for that was also a case in which there was no express provision for the claimants in the published Guidance; see the judgment of Males J at [35]. The review of essentially the same material in relation to the availability and funding of DHPs led the Judge to conclude (on an Article 8 challenge) that the changes to housing benefit introduced by the regulations were not manifestly without reasonable foundation. In the course of his reasoning Males J said this at [55(iii)]:

As I have observed, the Sanctuary Scheme is obviously a good thing, both in the case of A and in the case of others who have endured domestic violence. The evidence I have about this applicant suggests that she is a deserving recipient of the benefits that scheme can bring, and common sense suggests that it would be best for everyone if she were able to stay in her current property. It has been her home for 25 years, and has been adapted to provide her with the security she deserves. There are also the points which can be made about the uncertainty of future funding and the effect of that on someone in the position of A. I do not underestimate that matter. As I say, it seems to me that the benefits of a Sanctuary Scheme go well beyond the physical security offered by adapting a property. For A it has brought the security of knowing that she can stay where she is, with her support network around her. The loss of that certainty is not a good thing.

But whilst these factors and the human effect of all this on A and those like her weighs in the balance, the question I have to determine is not simply whether it would be a good idea to put A’s home in jeopardy. It is whether the Defendant’s decision to adopt this policy (or to implement it in this way) is manifestly without reasonable foundation.

Here I need to have in mind the need for caution which Lord Dyson MR refers to at paragraph [81] of MA. The scheme as a whole was the subject of detailed consideration. There are a number of major policy benefits as well as the detrimental effect on some. Whilst it would have been helpful to have considered the effect of this scheme on those in Sanctuary Schemes, it is perhaps not surprising that no specific reference was made to them given the relatively small numbers of people involved. This is a policy which raises a great number of issues, and it would be a near impossible task to foresee all of them and then to engage in a debate about them. The scheme in general was vigorously debated in Parliament, and whilst this sub-group was not referred to, it was expressly recognised that there would be other hard cases, and that the provision of DHPs was there to cater for them. The DHP fund has been reviewed and apparently adequately funded (so far) and the DHP Guidance has been revised to bring out the power to make longer term payments.

Given the decisions in MA and the cases which follow it, I have reached the clear conclusion that on the evidence before me the Defendant has established that it is not irrational or manifestly without reasonable foundation to have adopted a locally administered scheme of discretionary payments to deal with the issues which arise from those in Sanctuary Schemes affected by these changes to Housing Benefit.

As yet this Claimant has not suffered a financial loss, although the point is fast approaching when the credit on her Housing Benefit account will run out. It is arguable that there is no interference with her Article 14 rights until that point. To decide the case on that basis would be to avoid the argument, and given that the parties argued the case fully, I prefer to decide the case on the substantive argument. Perhaps more relevant to the outcome is the fact that A has received a DHP payment, which is at least some confirmation of the Defendant’s case that DHPs will cover the gap in benefit which will arise in her case. If payments are not “renewed” on application, she will be in a position to challenge that decision. I cannot determine the outcome of that application, but I note the judgment of Stuart-Smith J in Rutherford at [52] – [54] and agree.

Ground 2 -The Public Sector Equality Duty

The relevant protected characteristics include sex but not “victims of domestic violence” or the like. On a challenge such as this, the question is not whether the decision or the outcome is justifiable, but whether in the process leading to the making of the decision, the decision-maker had “due regard” to the specified protected characteristics.

Once again I refer to the judgement of Lord Dyson MR in MA at [83] where he cites with approval the summary of the case law at paragraph 25 of the judgment of McCombe LJ in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345.

“(1)

As stated by Arden LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213; [2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.

(2)

An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)).

(3)

The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154at [26-27] per Sedley LJ.

(4)

A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action”, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at [23 – 24].

(5)

These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), as follows:

i)

The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters;

ii)

The duty must be fulfilled before and at the time when a particular policy is being considered;

iii)

The duty must be “exercised in substance, with rigour, and with an open mind”. It is not a question of “ticking boxes”; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;

iv)

The duty is non-delegable; and

v)

Is a continuing one.

vi)

It is good practice for a decision maker to keep records demonstrating consideration of the duty.

(6)

“[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.” (per Davis J (as he then was) in R (Meany) v Harlow DC [2009] EWHC 559 (Admin) at [84], approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586at [74–75].)

(7)

Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be “rigorous in both enquiring and reporting to them”: R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941at [79] per Sedley LJ.

(8)

Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) (Divisional Court) as follows:

(i)

At paragraphs [77–78]:

“[77] Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para [34]) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.

[78] The concept of ‘due regard’ requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.”

(ii)

At paragraphs [89–90]

“[89] It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para [85]):

‘….the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.’

[90] I respectfully agree….””

At paragraph 4.32 of the Claimant’s Statement of Facts and Grounds [A54] it is said that this case is very different to MA. The lobby had taken up the issue of the impact on the disabled and those in foster care in particular, and that seems to have driven some of the debate. Hence there was quite a detailed consideration of the issues relating to the disabled before the measure was passed. Whilst there was a challenge on the basis of the PSED in MA, it failed both before the Divisional Court and the Court of Appeal. In particular the judgment of Laws LJ in the Divisional Court rejected the notion that the court should seek to “micro-manage” these issues by using the PSED.

In this case Ms Gallagher’s submission (summarised at paragraph 4.51 of her skeleton argument) is that the Secretary of State:

Ms Gallagher submitted that whilst there was a focus on disability during the debate of the policy, there was no such focus on women. In particular there was no consideration of how the measure would affect victims of domestic violence, a group of people who were predominantly women. That group includes the sub group of those in Sanctuary Schemes. Nor was there a consideration of how the measure would affect lone parents, another group which would be predominantly female. A would be in both groups. Ms Gallagher took me to the decision in R (on the application of Green) v Gloucestershire CC and ors [2011] EWHC 2687 (Admin) as an example of a case where the PSED was breached. That involved a challenge to a decision to close public libraries.

I have set out the terms of the Equality Impact Assessment at paragraph [38] above. Ms Gallagher’s submission is that this is not an exercise of the duty in substance (see 4.46(i) of her skeleton argument). I have in mind the summary of the principles derived from the case law at paragraph 69 above, and in particular sub-paragraph 5(iii).

Finally there is the evidence of Ms Walsh to the effect that consideration was given to those in analogous positions such as those affected by mental health issues and those in homes adapted to assist with disability. She also highlights the references to domestic violence in the DHP Guidance. Ms Gallagher submits that this is after the event justification, and that there is no evidence that the impact of the policy on women who have been able to remain in their homes through the assistance of the Sanctuary Scheme was considered at or before the measure was brought in. She would say that this was something of a rearguard action on the part of the Secretary of State.

Mr Eicke’s submissions begin with the point that the protected characteristic the Secretary of State is required to have due regard to is sex, and not domestic violence. He accepts that as a group, the victims of domestic violence will predominantly be female, but submits that:

Paragraphs 33 and 34 of the Detailed Grounds of Resistance [A103] are a convenient summary of his argument as to the nature of due regard in the circumstances of this measure:

Mr Eicke QC submits that there was an Equality Impact Assessment which considered Gender, and which recognised that the measure would have a greater impact on women because there were more female Housing Benefit claimants. In the circumstances he submits that this, taken with the broader debate and a recognition of other hard cases which would be covered by DHPs, was sufficient to amount to “due regard” for the purposes of the PSED. It is not for the court to consider issues of weight. The Secretary of State was entitled to conclude that the measure had no differential impact by gender and so did not need to consider mitigation.

I agree that this is a different case from the disability cases. Disability is a protected characteristic, and the numbers of disabled people affected by the measure and the interest of the lobby meant that there was a plain focus on that area. Domestic violence is not a protected characteristic, and whilst the indirect effect of this measure is to discriminate against women, that discrimination (in Convention terms) is justified in the context of this policy and its implementation. It is in that context that I have to come back to look at how the Secretary of State approached his duty.

When considering whether due regard was given to the PSED, it is important to remember the nature of the decision the Secretary of State was considering. This is not a decision such as that in Green, where closing public libraries would obviously have a potential effect on the access of those with disabilities. The effects here are of a different order.

I can see the real merit in the arguments Ms Gallagher marshals, but I come back to the point that Mr Eicke QC and Mr Brown make at paragraph 33 of the detailed grounds of resistance. This was a major Government policy designed to address the deficit. It cannot be the case that the PSED requires the Government to list out every consequence of such a policy. Whilst in some respects it may be beneficial to have regard to all those effects, the requirement is “due” regard, and that qualification must be informed by the nature of the decision. The Equality Impact Assessment considered Gender. That is the protected characteristic under the Act. There was a recognition that there would be other hard cases, of which this is one. Provision was made for those cases in a way which I have found to be sufficient. In the context of this decision I have concluded that the Secretary of State did enough to satisfy his duty to have due regard pursuant to the PSED. To go further would be an unrealistic and unwarranted step along the road to (what Laws LJ termed) the micro-management of policy.

Ground 3 – An unacceptable risk of Article 8 breaches

At paragraphs 43 and 44 of his Judgment in Cotton, Males J referred to the truly exceptional nature of the circumstances in which Article 8 will impose a duty to provide support in the form of housing and welfare benefits, and of the importance that this was so. At paragraph 51 he concluded that on the facts of that case, even if the reduction in housing benefits had the effect of compelling the claimants to move to a smaller property where their children could not live with them, that would not be an interference with their rights under Article 8. Something more was needed to reach the high threshold required. He went on to note that if there was something more in a particular case, the probability is that DHPs would be made by a claimant’s local authority.

In reply, Ms Gallagher submitted that this was an extreme case. This was a claimant who faced far more than the anxiety felt by the claimants in Cotton. Her submission was that it approached an interference with her rights under Article 3. She relied upon the evidence from A and from Polly Neate relating to A’s suicidal thoughts and PTSD. I agree that the effect on this claimant appears to be more serious than in Cotton. But it is plainly well short of the high level required. In any event, even if there were an interference with A’s Article 8 rights, the Defendant would succeed on the justification argument.

Conclusion