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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brown v South Yorkshire Police Authority [2001] EWCA Civ 1080 (5 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1080.html Cite as: [2001] EWCA Civ 1080

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
(District Judge McGrath)

		Royal Courts of Justice Strand London WC2
		Thursday, 5th July 2001

1. LORD JUSTICE THORPE: Lord Justice Dyson will give the first judgment.
2. LORD JUSTICE DYSON: This is an appeal by the South Yorkshire Police Authority ("the Authority") from the decision of District Judge McGrath, sitting in the Manchester County Court, whereby he gave judgment for the claimant against the defendant for the sum of £7,876.33 plus interest. The claimant has at all material times been a police officer serving in the Authority. His claim was in respect of what is referred to as "transitional rent allowance" in regulation 49B of the Police Regulations 1987, as amended. We understand this to be in the nature of a test case. It turns on the true construction of regulation 49B.
3. It is impossible to understand regulation 49B without an appreciation of the previous legislative background. The 1987 Regulations were made pursuant to section 33 of the Police Act 1964, and came into force on 15th June 1987. By regulation 49(1), a police officer who was not provided with a house or quarters free of rent and rates was paid a rent allowance which was either a "maximum limit rent allowance" or a "flat rate allowance". Broadly speaking, the maximum limit rent allowance was required to be paid to married officers. The flat rate rent allowance was required to be paid in all other cases, and became known as the "single man's allowance". Regulations 50 and 51 made provision for payment of a supplementary rent allowance. By regulation 52, provision was made for the payment of "compensatory grant": the rationale for this payment was that the rent allowance was subject to tax: the compensatory grant was an additional sum to compensate the officer for the tax payable on the rent allowance.
4. With effect from 1st April 1990, the 1987 Regulations were amended by the Police (Amendment) Regulations 1990 (SI 1990 No 401) to take account of the introduction of Community Charge. Regulation 49 was revoked, and a new regulation 49 was introduced which provided a new allowance called a "housing allowance", which was either a "standard rate allowance" or a "half rate allowance". These allowances, which replaced the "maximum limit rent allowance" and "flat rate allowance" respectively, were less generous than their predecessors, in that they did not include any element for the payment of domestic rates. Moreover, no provision was made for payment of a sum equivalent to the previous compensatory grant. The 1990 Regulations also introduced an entirely new allowance, known as a "transitional rent allowance" ("TRA"). This was achieved by regulation 49B.
5. It is convenient at this stage to set out the relevant provisions of regulation 49B:

"49B - (1) This paragraph applies to a member of a police force to whom a rent allowance was payable on 31st March 1990 where the sum of the annual rent allowance (and, where appropriate, supplementary rent allowance) then payable to him and his compensatory grant in respect of the financial year ending on 5th April 1990 is greater than the standard-rate or half-rate housing allowance and any supplementary housing allowance to which he would be entitled under regulation 49, 50 or 51 for the year beginning on 1st April 1990.

(2) Subject to the provisions of this regulation, a member to whom paragraph (1) applies shall be entitled, for any part of the relevant period when he would be eligible to receive a housing allowance, to be paid, instead of a housing allowance, an allowance (`transitional rent allowance') at an annual rate equal to the amount of rent allowance payable per annum at the rate applicable to him on 31st March 1990. ...

(4) In relation to a member to whom paragraph (1) applies, the relevant period mentioned in paragraphs (2) and (3) shall -

(a) begin on 1st April 1990, and

(b) end on the day immediately preceding the date on which the standard-rate or half-rate housing allowance and any supplementary housing allowance to which he would then be entitled under regulation 49, 50 or 51 first equals or exceeds the sum of his transitional rent allowance, any transitional supplementary rent allowance or any supplementary housing allowance then payable to him and the total amount of compensatory grant paid since 1st April 1990 in pursuance of regulation 49D in respect of his rent allowance and any compensatory grant in relation to such rent allowance in respect of the period ending on 5th April 1990;

except that the relevant period shall terminate if a member resigns (otherwise than upon immediate transfer to another force) or retires, or is discharged or dismissed, from a police force and shall not recommence if he again becomes a member of a police force.

(5) Where a member in receipt of a transitional rent allowance was entitled on 31st March 1990 to a maximum limit rent allowance and thereafter, by reason of a change in his personal circumstances, he would be eligible only for a half-rate housing allowance, his transitional rent allowance shall, as long as he receives such allowance instead of a half-rate housing allowance, be equal to the flat-rate rent allowance payable to members of his force of the rank he held on 31st March 1990. ..."

6. It is clear that the purpose of regulation 49B was to protect members of the police force in respect of the rent allowances that were payable on 31st March 1990 from suffering any reduction they would otherwise suffer by reason of the introduction of housing allowances.
7. Eventually, the housing allowances introduced by the 1990 Regulations were abolished for all officers with effect from 31st August 1994 by the Police (Amendment No 2) Regulations 1994. But the 1994 Regulations contained transitional provisions whose effect was to preserve the entitlements of officers (whether to TRA or standard rate or half rate housing allowances) who were serving on 31st August 1994.

The facts

8. Mr Brown joined the South Yorkshire Police on 5th September 1988. He was already married. He lived with his wife at their home at 115 Park Avenue, North Anston, Sheffield. Mr Brown owned the property. His wife was not a member of the police force. Accordingly, he was entitled to, and was paid, a rent allowance of £42.02 per week pursuant to regulation 49(2)(a) of the Police Regulations 1987, and a compensatory grant of £622.50 for the financial year ended 5th April 1990 pursuant to regulation 52. That was the position as at 31st March 1990. As from 1st April 1990, Mr Brown was paid TRA at the maximum limit rent allowance level of £195.98 per four-week period plus the appropriate compensatory grant. On 24th February 1991, he separated from his first wife. Regulation 49B(5) was triggered by the separation. As from 25th February 1991, he was paid TRA at the reduced half rate allowance level of £120.18 per four-week period. It is common ground that this reduction was aptly made.
9. Mr Brown was later divorced from his first wife. He married his second wife on 4th April 1992. They lived together at 115 Park Avenue. With effect from 4th April 1992, the Authority have not paid any TRA at all. It has been their contention that Mr Brown's remarriage operated to determine his entitlement to receive TRA altogether and that, as from that date, he was entitled only to receive standard rate housing allowance of £172.56 per four-week period and no compensatory grant. That is what they have paid him. The district judge held that they were obliged to pay TRA at the maximum level.

The issue

10. The issue is quite simply: upon Mr Brown's remarriage on 4th April 1992, did he lose his right to receive TRA?

Discussion

11. On behalf of the Authority, Mr Robinson has advanced an elaborate argument based on a very close textual analysis of regulation 49B. In essence, however, his argument centres on 49B(4)(b). He submits that that paragraph involves a consideration of what he calls "rolling dates", the first of those dates being the end of the "relevant period": that is the last date upon which TRA was payable. The second date, he submits, is the following date on which notional housing allowance would be payable. He submits that, for the purpose of carrying out the exercise required by 49B(4)(b), what is required is a comparison between the TRA payable on the last date of the relevant period and the notional housing allowance payable on the immediately following day.
12. In my judgment, the short answer to that contended for construction of 49B(4)(b) has been succinctly provided by Mr Critchley in his skeleton argument, for which I am grateful. I quote from paragraph 4.10 of that skeleton argument:

"4.10.1Reg 49B(4)(b) does not have the effect contended for. The correct analysis of this provision is as follows: `the relevant period' is deemed to end on the day before `the date' (`the qualifying date') upon which a specified event happens (`the qualifying event'). The qualifying event prescribed by the provision is the `new' housing allowance (standard-rate or half-rate) to which the officer is entitled on the qualifying date equalling or exceeding the total of the TRA (aggregated and in all forms) to which the officer is entitled also on the qualifying date;

4.10.2moreover, the fact that the qualifying date requires a comparison to be made between the officer's entitlement to either `new' standard/rate housing allowance or TRA in all forms (to see whether the former equalled or exceeded the latter) on the same day is made crystal clear by the use of the word `then' on lines 3 and 6 of Reg 49B(4)(b);

4.10.3accordingly, the step at 4.9.2(1) must be wrong because it makes a false comparison, namely between what [the claimant] became entitled to on re-marriage with what he was previously entitled to as a single man, and this is not the comparison required by Reg 49B(4)(b) in order to assess whether the qualifying event has occurred."

13. In my judgment, that accurately summarises the effect of 49B(4)(b) and effectively demonstrates the fallacy in the approach suggested by Mr Robinson to the proper construction of that provision.
14. There is no doubt that regulation 49B(1) applies to Mr Brown. That is not in dispute. He was a member of a police force to whom a rent allowance was payable on 31st March 1990, and the sum of the annual rent allowance then payable to him and his compensatory grant in respect of the financial year ending on 5th April 1990 were greater than the standard rate housing allowance and any supplementary housing allowance to which he would be entitled under regulations 49, 50 and 51 for the year beginning on 1st April 1990. Mr Brown was, therefore, entitled "for any part of the relevant period when he would be eligible to receive a housing allowance" to be paid a TRA at the rate applicable to him on 31st March 1990: see regulation 49B(2). It is true that regulation 49B(2) is expressed to be subject to "the provisions of this regulation", and I shall come to regulation 49B(5) shortly. Regulation 49B(4) defines the "relevant period". It starts on 1st April 1990. Subject to the exceptional cases specified, it ends on the day before the amount of any housing allowance to which, but for the TRA provisions, Mr Brown would be entitled under regulations 49, 50 and 51, first equals or exceeds the sum of his TRA and other relevant allowances and compensatory grant. The exceptional cases are where a member resigns or retires, or is discharged or dismissed. Leaving the exceptional cases on one side, therefore, the relevant period ends when, to use Mr Robinson's phrase, the housing allowance "catches up" the TRA. But what is clear is that, until the relevant period ends, a member of the police force to whom regulation 49B(1) applies is entitled to TRA. Since this is not a case to which any of the exceptions mentioned at the end of regulation 49B(4) apply, it must follow that the relevant period has not come to an end and, prima facie, Mr Brown is entitled to continue to receive TRA.
15. It is, however, necessary now to consider regulation 49B(5) to see whether the conclusion that I have reached so far is affected by the provisions of that paragraph. The first thing to notice about this paragraph is that it does not purport to say anything about the relevant period. It does not deal with eligibility for TRA. That has already been dealt with in regulation 49B(1)(2) and (4). In my view, the purpose of paragraph (5) is obvious and limited. It is to avoid the anomalous position that would arise if, for example, an officer, who was entitled to the maximum limit rent allowance on 31st March 1990 by reason of his married status at that time, were to continue to be entitled to be paid that allowance even after he had divorced his wife. In the absence of regulation 49B(5), there would be no mechanism for reducing the level of TRA to which such an officer would be entitled following divorce. As Mr Critchley points out, the legislators had three options: (a) leave a divorcing officer to be overpaid; (b) use the occasion of the divorce to reduce the officer to the half rate housing allowance (ie take him off the financially advantageous TRA altogether); or (c) continue the TRA, but at the reduced flat rate rent allowance level to reflect the change as it would have affected the officer prior to 31st March 1990.
16. In my view, it is clear that the draftsman opted for (c) in regulation 49B(5). The paragraph says that where the officer would, by reason of a change in his personal circumstances, be eligible only for half rate housing allowance, "his transitional rent allowance shall, as long as he receives such allowance instead of a half rate housing allowance, be equal to the flat rate rent allowance payable to members of his force of the rank he held on 31st March 1990". Thus what he is paid in the event of such a change in his personal circumstances is TRA. The paragraph is silent as to what should happen in the event that there is a further change in his personal circumstances such that, were the position to have occurred before 1st April 1990, the officer would have been restored to the maximum limit rent allowance. It is clear that, upon such a further change in personal circumstances, regulation 49B(5) would cease to apply. This is because the officer would no longer be receiving the TRA "instead of a half rate housing allowance": were the position to have been governed by the housing allowance provisions in regulation 49, the officer would be entitled to a standard rate allowance.
17. Thus, on the facts of the present case, regulation 49B(5) ceased to apply once Mr Brown remarried. But he remained a member of the police force to whom a rent allowance was payable on 31st March 1990 (regulation 49B(1)). Accordingly, he was entitled to a TRA at the rate applicable to him on 31st March 1990 for any part of the "relevant period when he would be eligible to receive a housing allowance". The relevant period did not, in my judgment, come to an end on the remarriage of Mr Brown, for the reasons that I have given, and, as I understand it, has not yet come to an end.
18. For all these reasons, I would dismiss this appeal.
19. LORD JUSTICE THORPE: I agree.
Order: appeal dismissed with costs, to be the subject of a detailed assessment.