Decision No: C1/03-04(HB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

HOUSING BENEFIT

	Appeal to a Social Security Commissioner
	on a question of law from a Tribunal's decision
	dated 14 May 2002

	DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, with the leave of a Commissioner, against the decision of an Appeal Tribunal to the effect that the claimant was not entitled to housing benefit (HB).

2.	I arranged a hearing of this appeal at which Mr McIlduff, of the Decision Making and Appeals Unit of the Department, appeared on behalf of the Northern Ireland Housing Executive.  The claimant neither appeared nor was he represented.

3.	The background facts of the case are as follows.  The claimant on 26 July 2001 made a claim for HB with the Northern Ireland Housing Executive.  The basis for his claim was that he was paying rent of £180.00 per month to his landlord, Mr F G.  He stated that Mr G was a close relative and later confirmed that they were brothers.  On 30 August 2001 a decision maker considered his claim and decided that he was not entitled to HB because he lived in the same dwelling as his landlord who was also his brother.  

4.	This decision was subsequently appealed and heard as “a paper hearing” on 14 May 2002.  The Tribunal upheld the decision of the decision maker.  The reasons for the decision show that the Tribunal considered regulation 7(1)(b) of the Housing Benefit (General) Regulations (Northern Ireland) 1987, in conjunction with the Human Rights Act 1998 and the European Convention on Human Rights, and found that, as the Regulations were primary legislation, then neither the Human Rights Act nor the European Convention could assist the claimant in his submission that regulation 7(1)(b) of the 1987 Regulations were inconsistent with the provisions of the Human Rights Act.

5.	Having considered the circumstances of the case I considered that, even though no party sought a hearing before me, a hearing was appropriate in all the circumstances.

6.	The Tribunal’s decision and its reasons for its decision are available to me.  However, the record of proceedings was not available as the claimant failed to apply for this record within the statutory time limit and therefore the record has not been produced by the Legally Qualified Member.  Accordingly I am not entitled to make any assumptions in favour of the claimant on the grounds that there may have been supportive evidence in such a record as a lack of a record is due to the claimant failing to comply with the statutory time limit.  However, as the hearing before the Tribunal was “a paper hearing”, it is unlikely that any substantial disadvantage rests with the claimant in the circumstances.

7.	Leave to appeal to a Commissioner was refused by the Legally Qualified Member on 19 September 2002 on the grounds that no error of law had been identified.  However, I granted leave to appeal on 17 April 2003.  

8.	The relevant legislation is in the following terms: -

HUMAN RIGHTS ACT 1998

“Introduction

1.	The Convention Rights
    (1)  In this Act ‘the Convention rights’ means the rights and fundamental freedoms set out in -

(a)	Articles 2 to 12 and 14 of the Convention,
(b)	Articles 1 to 3 of the First Protocol, and
(c)	Articles 1 and 2 of the Sixth Protocol,
as read with Articles 16 to 18 of the Convention.

	…

	3.	Interpretation of legislation
(1)  So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2)	This section –
(a)	applies to primary legislation and subordinate legislation whenever enacted;
(b)	does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c)	does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
…
21.	Interpretation etc.
     (1)  In this Act -
…
‘ primary legislation’ means any –
(a)	public general Act;
(b)	local and personal Act;
(c)	private Act;
(d)	Measure of the Church Assembly;
(e)	Measure of the General Synod of the Church of England;
(f)	Order in Council –
(i)	made in exercise of Her Majesty’s Royal Prerogative;
(ii)	made under section 38(1)(a) of the Northern Ireland 
Constitution Act 1973 or the corresponding provision of the Northern Ireland Act 1998; or
(iii)	amending an Act of a kind mentioned in paragraph (a), (b) or (c);
and includes an order or other instrument made under primary legislation (otherwise than by the National Assembly for Wales, a member of the Scottish Executive, a Northern Ireland Minister or a Northern Ireland department) to the extent to which it operates to bring one or more provisions of that legislation into force or amends any primary legislation;
…
 ‘subordinate legislation’ means any –
(a)	Order in Council other than one –
(i)	made in exercise of Her Majesty’s Royal Prerogative;
(ii)	made under section 38(1)(a) of the Northern Ireland
Constitution Act 1973 or the corresponding provision of the Northern Ireland Act 1998; or
		(iii)	amending an Act of a kind mentioned in the definition of primary legislation; 
(b)	Act of the Scottish Parliament;
(c)	Act of the Parliament of Northern Ireland;
(d)	Measure of the Assembly established under section 1 of the 
Northern Ireland Assembly Act 1973;
(e)	Act of the Northern Ireland Assembly;
(f)	order, rules, regulations, scheme, warrant, byelaw or other 
instrument made under primary legislation (except to the extent to which it operates to bring one or more provisions of that legislation into force or amends any primary legislation);
	(g)	order, rules regulations, scheme, warrant, byelaw or other instrument made under legislation mentioned in paragraph (b), (c), (d) or (e) or made under an Order in Council applying only to Northern Ireland;
	(h)	order, rules, regulations, scheme, warrant, byelaw or other instrument made by a member of the Scottish Executive, a Northern Ireland Minister or a Northern Ireland department in exercise of prerogative or other executive functions of Her Majesty which are exercisable by such a person on behalf of Her Majesty; 
…”

_________________________

SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992

“Section 129 – (1) A person is entitled to housing benefit if –

(a)	he is liable to make payments in respect of a dwelling in Northern Ireland which he occupies as his home;

(b)	there is an appropriate maximum housing benefit in his case; and

(c)	either –

(i)  he has no income or his income does not exceed the applicable amount; or

(ii)  his income exceeds that amount, but only by so much that there is an amount remaining if the deduction for which subsection (3)(b) below provides is made.

(2)  In subsection (1) above “payments in respect of a dwelling” means such payments as may be prescribed, but the power to prescribe payments does not include power to prescribe mortgage payments.

(3)  Where a person is entitled to housing benefit, then - 

(a)  if he has no income or his income does not exceed the applicable amount, the amount of the housing benefit shall be the amount which is the appropriate maximum housing benefit in his case; and

(b)  if his income exceeds the applicable amount, the amount of the housing benefit shall be what remains after the deduction from the appropriate maximum housing benefit of prescribed percentages of the excess of his income over the applicable amount.

(4)  Regulations shall prescribe the manner in which the appropriate maximum housing benefit is to be determined in any case.”

_________________________

HOUSING BENEFIT (GENERAL) REGULATIONS (NORTHERN IRELAND 1987

“Regulation 2 – (1)  In these Regulations –
…

“close relative” means a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother, sister, or the spouse of any of the preceding persons, or if that person is one of an unmarried couple, the other member of that couple;
…

Regulation 7 – (1)  A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where –

(a)  the tenancy or other agreement pursuant to which he occupies the dwelling is not on a commercial basis;

(b)  his liability under the agreement is to a person who also resides in the dwelling and who is a close relative of his or of his partner;

(c)  his liability under the agreement is -

(i)  to his former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners, or

(ii)  to his partner’s former partner and is in respect of a dwelling which his partner and his partner’s former partner occupied before they ceased to be partners;

(d)  he is responsible, or his partner is responsible, for a child of the person to whom he is liable under the agreement;

(e)  subject to paragraph (1B), his liability under the agreement is to a company or a trustee of a trust of which -

(i)  he or his partner;

(ii) his or his partner’s close relative who resides with him, or

(iii)  his or his partner’s former partner is, in the case of a company, a director or an employee, or, in the case of a trust, a trustee or a beneficiary;

(f)  his liability under the agreement is to a trustee of a trust of which his or his partner’s child is a beneficiary;

(g)  subject to paragraph (1B), before the liability was created, he was a non-dependant of someone who resided, and continues to reside, in the dwelling;

(h)  he previously owned, or his partner previously owned, the dwelling in respect of which the liability arises and less than five years have elapsed since he or, as the case maybe, his partner ceased to own the property, save that this sub-paragraph shall not apply where he satisfies the appropriate authority that he or his partner could not have continued to occupy that dwelling without relinquishing ownership;

(i)  his occupation, or his partner’s occupation, of the dwelling is a condition of his or his partner’s employment by the landlord;

(j)  he is a member of, and is wholly maintained (disregarding any liability he may have to make payments in respect of the dwelling he occupies as his home) by, a religious order;

(k)  except where paragraph (2) applies, he is in residential accommodation;

(l)  in a case to which the preceding sub-paragraphs do not apply, the appropriate authority is satisfied that the liability was created to take advantage of the housing benefit scheme established under Part VII of the Contributions and Benefits Act.

(1A)  In determining whether a tenancy or other agreement pursuant to which a person occupies a dwelling is not on a commercial basis regard shall be had inter alia to whether the terms upon which the person occupies the dwelling include terms which are not enforceable at law.

(1B)  Paragraph (1)(e) and (g) shall not apply in a case where the person satisfies the appropriate authority that the liability was not intended to be a means of taking advantage of the housing benefit scheme.
…”
__________________________

(Contrary to the claimant’s submissions, regulation 7(1) is, in substance, the same as regulation 7(1) of the Great Britain Regulations – the Housing Benefit (General) Regulations 1987 – and, both in Northern Ireland and Great Britain, section 7(1) was substituted with effect from 25 January 1999 – by regulation 3 of S.R. 1998 No. 455 in Northern Ireland and by regulation 3 of S.I. 1998 No. 3257 in Great Britain).

9.	The relevant parts of the European Convention (which is applicable because of the provisions of section 1(1) of the Human Rights Act 1998) are as follows: -

“Article 6
Right to a fair trial

1.  In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 
…
Article 8
Right to respect for private and family life

1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no inference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
…
Article 14
Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

10.	Although the claimant did not attend at the hearing, he informed me fully of the issues in the appeal as far as he was concerned and set out his legal submissions with admirable succinctness and effectiveness.  I also had the benefit not only of both Mr McIlduff’s oral submissions at the hearing but also his written submissions.

11.	I conclude that the issues that I have to deal with are as follows: -

(1)	whether the Tribunal was correct in deciding that the Housing Benefit (General) Regulations (Northern Ireland) 1987 are primary legislation;

(2)	whether the claimant received a fair hearing of his appeal in accordance with Article 6(1) of the European Convention on Human Rights;

(3)	whether regulation 7(1)(b) of the Housing Benefit (General) Regulations (Northern Ireland) 1987 is in breach of Article 8 and 14 of the European Convention on Human Rights;

(4)	whether the cases of R (Painter) v Carmarthenshire CC and R (Murphy) v Westminster CC [2001] EWHC Admin 308, (decisions of the English High Court) and Tucker v Secretary of State for Social Security [2001] EWCA CIV 1646 (a decision of the English Court of Appeal) can be legitimately distinguished from this appeal; and

(5)	whether the Tribunal was correct in deciding that the claimant, although a person who is liable to make payments in respect of a dwelling, should be treated as not so liable, because his liability is to his brother who falls within the definition of a close relative and is also residing in the same dwelling.

12.	In relation to the first issue, it is clear that the claimant had submitted in writing to the Tribunal that the decision not to award him HB was in contravention of the Human Rights Act 1998.  However it is also clear that the Tribunal in hearing his appeal refused to deal with this argument on the grounds that the Regulations were primary legislation and that Tribunals have no power to declare such legislation to be incompatible with Convention Rights and that if primary legislation cannot be read and given effect in a way which is compatible with the Convention, the legislation must be applied as it is.

13.	It is correct that Tribunals do not have the power to make declarations of incompatibility under section 4 of the Human Rights Act 1998, nor do Commissioners, but there is still an obligation imposed on Tribunals and Commissioners, in accordance with section 3(1), to give effect to primary and subordinate legislation in a way which is compatible with Convention Rights.  The Tribunal has come to an erroneous conclusion in holding that the Regulations are primary legislation.  The relevant portion of section 21 of the Act makes it clear that the Regulations are subordinate.  The Tribunal in such circumstances is required to address the point made by the claimant, namely, whether the relevant legislation in regulation 7 can be read and given effect in a way which is compatible with Convention Rights.

14.	By not addressing this point the Tribunal has clearly erred in law and both parties in their respective submissions accepted that this was the position.

15.	This first point is inextricably joined to the second issue in the case – whether the claimant received a fair hearing of his appeal.  There are difficulties in finding that the claimant did not have a fair hearing, that is an oral hearing in which he could make the relevant points to the Tribunal, as he did not seek, as he was entitled to seek, an oral hearing and was content with what has become to be known as “a paper hearing”.  However, the European Court of Human Rights, in the case of Kraska v Switzerland 18 EHRR 188 stated, at paragraph 30, that the overriding requirement of a fair hearing is:

“… to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties,  without prejudice to its assessment of whether they are relevant to its decision.”

In light of this decision Mr McIlduff conceded that the Tribunal proceedings, even though they were “paper proceedings” were in breach of Article 6 of the Human Rights Act 1998 as the Tribunal did not deal with the claimant’s submissions and arguments.  In the circumstances I am content to accept Mr McIduff’s concession and find that the claimant did not receive a fair hearing.

16.	The third issue concerns whether regulation 7(1)(b) of the Housing Benefit (General) Regulations (Northern Ireland) 1987 is in breach of Articles 8 and 14 of the Human Rights Act 1998.  There is no doubt, from the decisions of R (Painter) v Carmarthenshire CC and R (Murphy) v Westminster CC,  that both Articles 8 and 14 are “engaged” in this case, as the claimant has specifically submitted.  It is also clear that the scope of Article 8 potentially, depending on the particular facts, can extend to a sibling relationship – Moustaquim v Belgium 13 EHRR 802. The question, however, is whether there has been a breach of either Article.

17.	Mr McIlduff, however, submitted that Article 8 does not impose a positive obligation on the State to provide financial assistance for the provision of housing.  Accordingly in these circumstances, and in light of the decision of the European Court of Human Rights in Petrovic v Austria [1998] 4 BHRC 232 (and also the Northern Ireland Court of Appeal case McAuley v The Department for Social Development [2001] NICA 15) a refusal of housing benefit cannot of itself constitute a breach of Article 8.  I accept that Mr McIlduff is correct in this submission.

18.	When one comes to consider the relevance of Article 14 and whether or not there is a breach in this particular case, it is necessary to consider whether there is a relevant proportionality argument.  In light of the decision of the National Union of Belgian Police v Belgium (1979-80) 1 EHRR 578 it is necessary to consider whether or not the disadvantage suffered by the claimant is excessive or not, when compared to the legitimate aim pursued by regulation 7(1).  There has been little direct evidence available in this case but it is certainly arguable that it is implicit in the legislation that attempts are being made by the State to prevent the abuse of the housing benefit system.  This was certainly accepted in Painter and Murphy by Lightman J.  In addition Mr Commissioner Jacobs in the recent Great Britain decision, CH/1205/003 stated, when considering the Great Britain equivalent to regulation 7, as follows: -

“25.  Regulation 7 is an anti-abuse provision.  It excludes two categories of cases from housing benefit.  One category consists of cases in which the housing benefit scheme is being abused.  The other category consists of cases in which there is a risk that the housing benefit might be abused.  In this category, actual abuse does not have to be shown.  The risk and the difficulties of proof justify a provision that is not limited to actual abuse.

26.	Obviously, regulation 7 does not cover every case in which there is a risk 
that the housing benefit scheme might be abused.  If it did, it would be very much longer.  Even then it would inevitably be incomplete.  It is possible to speculate with some accuracy about the general process by which the policy makers devised the present form of the regulation.  There must have (sic) a selection of the circumstances that would be included.  That selection must have involved a judgment of the likelihood and frequency with which the risk of abuse would arise.  And that judgment must have been based on evidence of actual circumstances that had been found to arise in practice.”

19.	The claimant has submitted that English jurisprudence on these issues is not relevant to a Tribunal or a Commissioner sitting in Northern Ireland, technically a separate legal jurisdiction.  However, when considering identically worded legislation in this part of the United Kingdom, I am obliged to take fully into account what Commissioners and the Courts in Great Britain have decided in relation to that legislation.  Just as the Commissioners in Great Britain have taken the view that they ought to follow the Northern Ireland Court of Appeal when dealing with such legislation (R(SB)1/90(T)), Northern Ireland Commissioners in similar circumstances ought to follow the English Court of Appeal and the Scottish Court of Session.

20.	I am also mindful of the words of Laws LJ in R (Waite) v Hammersmith and Fulham LBC [2001] EWHC Civ 482 in which he stated at paragraph 40: -

“In my judgment there is no room for the court to rewrite the rules relating to housing benefit upon Article 14 grounds.”

21.	In the circumstances I conclude that a Tribunal hearing a case based on the facts of the present appeal would have no alternative but to find that regulation 7(1)(b) of the Regulations is not in breach of Articles 8 and 14 of the European Convention on Human Rights.

22.	In relation to the fourth issue it is clear that there is a considerable difference in the facts between the cases of Painter and Murphy and also the Tucker case, as the rent liability in Painter & Murphy was to former partners and involved regulation 7(1)(c), while the rent liability in Tucker was to the father of the child and involved regulation 7(1)(d).  However, both these cases deal with the overall effect of regulation 7 and, in my view, are of considerable assistance to me and are relevant authorities for me to consider when assessing the compatibility of regulation 7 with the Convention.

23.	The fifth issue concerns the overall correctness of the Tribunal’s decision.  Under domestic law the claimant is clearly not entitled to HB in accordance with Regulation 7(1)(b) as, although he is a person who is liable to make payments in respect of a dwelling, he is treated as if he were not so liable because the liability is to his brother with whom he also resides.  Accordingly, unless the relevant legislation is incompatible with the European Convention, a Tribunal on the present facts must come to the same conclusion as the one the Tribunal came to in this case.  As I have concluded that there is no Human Rights or Convention point applicable, the Tribunal’s decision, even though there have been errors in law in the reasoning, is correct on an overall basis.  Nevertheless the reasoning of the Tribunal is defective and I have drawn attention to these defects in this decision herein.  However, whilst there have been errors in law, the actual decision discloses no error in law and is the decision the Tribunal ought to have given. In the circumstances it is not appropriate for me to set aside that decision, although I make clear that the reasoning supporting the decision has defects.  

24.	Accordingly I dismiss this appeal.

(signed):J A H Martin QC
Chief Commissioner

5 February 2004
C 001/03-04(HB)C001/03-04(HB)C001/03-04(HB)C001/03-04(HB)