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[2004] UKSSCSC CSJSA_125_2004 (26 July 2004)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CSJSA/125/04

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: D J MAY QC

Oral Hearing

Appellant: Respondent: Secretary of State

Tribunal: Glasgow Tribunal Case No:

DECISION OF SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the appeal tribunal given at Glasgow on 5 January 2004 is erroneous upon a point of law. I set it aside. I make the decision that the tribunal ought to have made. It is to the same effect namely that the decision of the Secretary of State of 27 March 2003 is confirmed. The claimant is entitled to have fifty per cent of his allowable mortgage interest included in his applicable amount for jobseeker's allowance from 22 October 2002 and one hundred per cent from 25 February 2003.
2. This appeal came before me for an oral hearing on 14 July 2004. The claimant was represented by Mr Dailly, Solicitor. The Secretary of State was represented by Mr Brodie, Advocate, instructed by Mr Crilly, Solicitor, of the Office of the Solicitor to the Advocate General.
3. The claimant has appealed to the Commissioner against the decision of the tribunal which disallowed his appeal against the decision of the Secretary of State issued on 27 March 2003. The claimant in respect of his applicable amount for income based jobseeker's allowance was found entitled to have fifty percent of his allowable mortgage interest included in his applicable amount from 22 October 2002 and one hundred per cent from 25 February 2002. That decision was made in accordance with regulation 82 and schedule 2, paragraph 1(2) and paragraph 6(1) of the Jobseeker's Allowance Regulations 1996. Paragraph 1 related to housing costs which arose under a mortgage agreement entered into before 2 October 1995 which I understand to have been the position in this case. It was the restriction of these housing costs under paragraph 6 which was the matter in issue before the tribunal and myself. It was Mr Dailly's submission that if I found in favour of the appellant, the decision I should make was one in terms of section 6(1) of the Human Rights Act 1998 to disapply the parts of paragraph 6 of schedule 2 of the regulations which restricted payments of housing costs in respect of mortgage interest. The basis upon which this course was urged upon me was in effect that the restrictions were not compliant with the Convention rights of the claimant as set out in article 8 and article 14 of the European Convention on Human Rights.
4. The relevant articles are as follows:-

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

8.2 There shall be no interference by a public authority with the exercise of this right except such as 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 rights or freedoms of others.

Article 14 provides:

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."

In respect of article 14 the ground of discrimination asserted to apply in this case was related to property. Mr Dailly conceded that this was the only element covered by article 14 which was in issue.

5. It was further a matter of concession by Mr Dailly that there was no direct breach of article 8 in respect that there was no positive obligation on the state for the purposes of compliance with that article to provide financial assistance for the payment of mortgage interest debt for claimants who were unemployed and entitled to jobseeker's allowance. It was his position that the claimant could only get within the scope of article 8 if there was discrimination arising in relation to the provision of state assistance in comparison to others. Thus he said that where the state chose to provide such assistance restriction of that assistance can come within the ambit of breach of article 8 if the provision which is made is one which is discriminatory in comparison to those in an analogous position. Such was the argument advanced by Mr Dailly before the tribunal and myself and why he urged me to adopt the course referred to in paragraph 3.
6. Mr Brodie submitted, and I do not understand Mr Dailly to have dissented from that submission, that the approach that a court or tribunal requires to adopt in considering such issues was conveniently set out by Lord Justice Brooke in Wandsworth London Borough Council v Michalak [2003] 1WLR 617 at paragraph 20. There, Lord Justice Brooke said:-

"These questions are as follows. (i) Do the facts fall within the ambit of one or more of the substantive Convention provisions (for the relevant Convention rights see section I(i) of the Human Rights Act 1998)? (ii) If so, was there different treatment as respects that right between the complainant on the one hand and other person put forward for comparison ("the chosen comparators") on the other? (iii) Were the chosen comparators in an analogous situation to the complainant's situation? (iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?"

7. In his opinion Lord Justice Brooke indicated that if the answer to any of the four questions is "no", then the claim is likely to fail. However it was accepted both by myself and parties and indeed was pointed out by the Court in another case that the affirmative answer only applies to the first three questions for the establishment of success but a negative answer would be required instead of an affirmative answer in respect of the fourth question.
8. In this case the tribunal gave affirmative answers to all the four questions posed by Lord Justice Brooke and the appeal before the tribunal failed because of the affirmative answer to the fourth question.
9. The position of parties before me was as follows. Mr Dailly submitted that the tribunal did not err in law in answering the first three questions in the affirmative but erred in law by answering the fourth question in the affirmative. Mr Dailly submitted that it should have been answered in the negative. Mr Brodie submitted that the tribunal erred in law by answering the first and third questions in the negative but did not err in law in answering the fourth question in the affirmative.
10. Before dealing with these issues in turn I was somewhat exercised as to how it could be that if the state was under no obligation for the purposes of compliance with article 8 to provide financial assistance in respect of housing costs for those who were unemployed it could be that the provision of such assistance could give rise to non-compliance. In that regard I was directed to what was said by Lord Justice Brooke in Wandsworth London Borough Council v Michalak where he said at paragraphs 23 and 24:-

"23. Mr John Howell, who appeared for the Secretary of State for the Department for Transport, Local Government and the Regions, argued that article 8 was not engaged, because that article did not give Mr Michalak a right to a secure tenancy by succession (see paragraph 18 above), but merely a right to respect for his home. In my judgment, this would be to make too narrow a view of the effect of article 14. The trigger for the application of article 14 is whether the facts in issue "fall within the ambit" of one or more of the other Convention provisions (Rasmussen v Denmark (1984) 7 EHRR 371, 377, para 29), and the finding of a violation under article 14 is not dependent on first establishing a violation of some other Convention right. Indeed, in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, 503, para 82 the European Court Said:-

"The notion of discrimination within the meaning of article 14 includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention."

24. Mr Michalak's complaint is that, in violating his right to respect for his home by seeking or ordering his eviction in circumstances where a comparator in an analogous situation would not have been evicted, a public authority (whether the council or the court) was discriminating against him in a matter which falls within the ambit of article 8. I am satisfied that his complaint passes the first of the four article 8 tests."

11. The way in which the tribunal dealt with whether the matter fell within the ambit of article 8 is set out in paragraphs 7 and 9 of their statement of reasons. There the tribunal said:-

7 Mr Dailly, on the appellant's behalf, submitted that the breach of the appellant's human rights arose as follows: Article 8 of the European Convention on Human Rights requires protection of the appellant's "right to respect for … his home" and Article 14 of the same convention requires that the appellant's enjoyment of the above right should be secured to him "without discrimination on any ground". The provision of subordinate legislation referred to in para 3 above which were applied to the appellant's case by the decision maker, resulted in the appellant, as a home owner with a mortgage, receiving state help with some of his housing costs as an unemployed person only from a date 8 weeks after his commencing to receive income based JSA and then only at 50% of the allowable costs (essentially mortgage interest payments) until he had been receiving that benefit for 26 weeks when he became eligible for the allowable costs in full. On the other hand, if the claimant had been a tenant of his property, he would have received state help, with the rent payable on his property, in the form of housing benefit from the beginning of his period of unemployment. Those acting on behalf of the Secretary of State do not dispute that the above accurately summarises the position. Mr Dailly went on to argue that the differentiation just described between an unemployed home owner with a mortgage and an unemployed tenant amounted to unlawful discrimination under the Articles of the European Convention on Human Rights referred to above. Mr Dymock on behalf of the Secretary of State submitted that this was not the case.

…..

9 The first legal issue which arises is whether Article 8 with its protection of the claimant's right to his home when read along with Article 14, is engaged at all in this case. In my view it is. I reach this conclusion on the basis of 2 decisions of the Court of Appeal. I refer firstly to Tucker v Secretary of State for Social Security (docs 20 to 30 of the bundle). See especially para 41 of document 28. Secondly, I refer to the decision again of the Court of Appeal in Carson and Reynolds v the Secretary of State for Work and Pensions (documents 95-128 of the bundle). See especially para 27 of document 105 and paras 37-41 inclusive of document 108-111 inclusive. I draw further support for this conclusion from the decision of Commissioner Levenson in CIS/4329/2002 referred to in para 5 above where he dealt with a challenge to the £100,000 mortgage cap on the basis that Article 8 even standing alone, applied to that situation. See also the cases cited by him at para 49 of his judgement in the above case. Article 8 does not require the UK Government to provide a scheme to assist with housing costs for the unemployed. However, if it does make such provision, it must do so in a way that does not discriminate between claimants for the relevant assistance. That is the legal effect of applying Article 8 read along with Article 14 to the present case."

12. It was Mr Brodie's submission that the approach of the tribunal was flawed and erred in law. It was Mr Brodie's submission that the facts do not fall within the ambit of any of the substantive Convention provisions.
13. Mr Brodie submitted that the benefit in this case was not designed to secure a right under article 8. It was his submission that it was to provide subsistence to those who were unemployed and without income support. He submitted that under the legislation the calculation of benefit took into account the nature of a claimant's household interest. However the fact that the sum payable as jobseeker's allowance may take account of whether one owns one's house or is a tenant does not mean that income support or jobseeker's allowance was paid further to an obligation under article 8. It was his submission that providing subsistence was not what article 8 was about. He referred me to what was said by Lord Justice Laws in the case of Carson v the Secretary of State for Work and Pensions [2003] 3 All England Law Reports at paragraph 28. It was his submission that it would be necessary to say that the benefit being paid could be said to be in line with the general type safeguarded by article 8. It was his submission that this was not the case. Whilst he conceded that if the state chooses to do something which is not required of it, then such additional protection required to comply with article 14 as a general proposition can arise but that if it was not within the nature of what article 8 was designed to secure, then it would not fall within the ambit. It was Mr Brodie's submission that the issue of discrimination is neither here nor there if the facts do not fall within the ambit of the relevant Convention right. In respect of the authorities relied upon by the tribunal in reaching its conclusion, it was submitted by Mr Brodie that in respect of Tucker v the Secretary of State for Social Security [2001] EWCA civ 1646 that the Court simply proceeded upon an assumption that the case fell within the ambit without any discussion whatsoever as to why it did so fall. In these circumstances it is not authority upon which reliance can be placed. It was his submission that in respect of CIS/4320/2002, what was said by the Commissioner at paragraph 48 was wrong. There, Mr Commissioner Levenson said:-

"The meaning of that paragraph is unclear. I do not accept that domestic law has to have been made pursuant to an obligation arising under the Convention for provisions of the Convention to be engaged. Indeed, much of English law was developed not only before the passage of the Human Rights Act 1998 but even before the drafting of the Convention. That does not mean that the Convention protection is not engaged. I think the paragraph means that it cannot be assumed that every aspect of income support engages the protection of Article 8. I cannot read it as excluding the whole of income support from the ambit of Article 8. If, for example, the regulations were to provide that the mortgage cap is £100,000 except for people who were born in Norway, in which case it is limited to £80,000, I cannot believe that either the domestic courts or the European Court of Human Rights would refuse to intervene on the basis that Article 8 is not engaged."

14. Nothing that was said by Mr Dailly persuaded me that Mr Brodie's analysis was incorrect. The language of the articles is crucial. There are two essentials that have to be satisfied for the facts as established to fall within the ambit. First the matter relied upon must have a direct relationship to the substantive Convention right, in this case article 8. Second the discrimination must be of the type provided for in article 14 and not be discrimination of a sort not covered. On both these issues the claimant fails in this case. I accept Mr Brodie's submission that the facts of this case do not fall within the ambit of article 8. Just because the Convention gives a right to respect for one's home does not mean that something which is indirectly related to the home, such as payments of interest of a heritably secured debt obtained for the purposes of purchasing the home, falls within the ambit of the Convention right provided by article 8. In my view the provision of housing costs in respect of the payment of interest is too remote from the right secured by the Convention for it to fall within the ambit. Such provision falls outwith what article 8 seeks to secure. Further and in any event for article 8 to be engaged, where there is no positive obligation to provide state assistance, the discrimination asserted would have to be of the type set out in article 14. That for reasons which will become apparent is where I consider that what is said by Mr Commissioner Levenson as quoted above is stated too broadly and accept what is said by Mr Brodie. For reasons set out in paragraphs 16 and 17 there is no discrimination of the sort provided for in article 14. In my view if the facts do not fall within the ambit of a Convention right then as Mr Brodie said, discrimination would not matter. In these circumstances I find that the tribunal erred in law in respect of this issue. I have made the decision the tribunal ought to have made which I have set out at paragraph 1. That is sufficient to dispose of the appeal. However, as other issues were raised by the parties I consider that I ought to deal with them.
15. In respect of the second question posed by Lord Justice Brooke, Mr Brodie's submitted that the answer must be in the affirmative, having regard to the comparator who was identified by the tribunal as follows:-

"…..whom I identified as being an unemployed person in exactly the same situation as the appellant except for the nature of his housing tenure, ie a tenant as distinct from someone like the appellant who is a home owner with a mortgage."

Mr Dailly did not dispute this and I accept it.

16. However Mr Brodie submitted that the tribunal erred in law in respect of the third question when it concluded:-

"I further consider that the appellant and that comparator are in an analogous situation in that both of them are unemployed, claiming state benefit on that basis and having their right to remain in their home protected by some degree of state provision."

17. It was Mr Brodie's submission that there was no such right as identified by the tribunal. I agree with that proposition as accepted by both parties there is no positive Convention right of that sort. It was Mr Brodie's submission that the person chosen as the comparator was not in an analogous situation to the claimant's situation. On the one hand he submitted that the tenant was in the position of holding the occupation of his property on a lease; the claimant on the other hand had a secure right of ownership but in the respect of the purchase of it there was a loan heritably secured on the property by a lender. In these circumstances, like with like is not being compared with. For the operation of article 14, discrimination in this case requires to be on the grounds of property. However that is not the basis of the statutory distinction. The distinction between the claimant and the chosen comparator is not a distinction relating to the property, including the nature of the holding of that property. The distinction is because in the claimant's case he has entered into a commercial transaction to purchase the property by obtaining a loan of the purchase price. It was Mr Brodie's submission that the right enshrined in article 8 must be secured without discrimination as to the rights of property. It was his submission that the provisions complained of by Mr Dailly were doing nothing to infringe the home and that any disruption to the home is to do with the commercial transaction entered into in respect of the loan. Mr Dailly relied upon the approach of the tribunal and said that the comparator was analogous but with that proposition I simply cannot agree. It was his submission that it is not possible to say that housing benefit provisions fall within article 8 by virtue of the operation of article 14 and those relating to housing costs for mortgage interest do not.
18. For myself, I consider that Mr Brodie's analysis is the correct one. The mere fact that for unemployed people there are provisions for state assistance in relation to rent in the form of housing benefit for tenants and housing costs for home owners with mortgages over their property does not in my view make the position of a tenants and home owners with mortgages analogous. Mr Brodie is correct when he says that the nature of an obligation to pay a heritably secured debt on a loan acquired for the purchase of a house is of a very different nature to an obligation to pay rent. The difference between the claimant and the chosen comparator was one in relation to the payment of debt either in the form of the obligation to pay rent or the obligation to make repayments of a heritably secured debt. Further the difference between the claimant and a tenant could not on any view be regarded as discrimination in respect of the property. It is simply a different approach to servicing a different type of debt or obligation. For article 8 to be engaged at all, there would require to be discrimination of the sort set out in article 14 properly analysed. Article 8 cannot be engaged because there is no discrimination of the sort that would be required and in any event the comparators are not analogous. Accordingly on these grounds also I hold that the tribunal erred in law.
19. On the basis of the views I have taken in respect of both questions one and three, the appeal fails without consideration of the fourth question. It was in respect of that question the claimant appealed to the Commissioner. I will deal with it shortly.
20. Having heard parties I am of the view that if the tribunal had not erred in law in relation to its treatment of questions one and three it would have reached the correct conclusion in respect of question four.
21. The tribunal's conclusion on that issue is set out in paragraph 10 of the statement. The tribunal said:-

"The crunch question is therefore whether the admitted differentiation in their treatment has an objective and reasonable justification. I take the view that the differentiation is based on the matters described in detail in para 8 above and that the policy reasons described in that paragraph amount to an objective and reasonable justification. I consider that in making the differentiation, which it did between the 2 cases on the basis of the issue of acquiring a capital asset, the UK Government did pursue a legitimate aim and further the differential treatment had a reasonable relationship of proportionality to the aims sought to be achieved by the legislation."

22. The tribunal sets out in detail the basis upon which it reached that conclusion. Mr Dailly reiterated the written grounds of appeal at pages 167 and 168. In these grounds of appeal arguments are advanced as to why the conclusion reached by the tribunal ought to have been the opposite of what it did and to point out flaws in its reasoning in reaching that conclusion. Much was made by Mr Brodie of a letter from Mr Pond MP, who is the Parliamentary Under Secretary of State for Work and Pensions to Mr Sarwar MP, the Member of Parliament of the claimant. That letter is recorded at pages 130 and 131 and sets out the basis upon which the legislation was framed to restrict interest payments on mortgages for the period set out in the jobseeker's allowance regulations. It also sets out the policy considerations in relation to the payment of housing benefit. All that there requires to be is an objective and reasonable justification. The tribunal clearly thought there was and in that I think they were right. The mere fact that the claimant takes a different view, as is apparent from the grounds of appeal which were adhered to in oral submission, is not material. Mr Dailly for example asserted as a matter of fact that State assistance to a person whose home is secured by a loan and who ceases occupation of the home because of the enforcement of the standard security by virtue of non payment of loan instalment would not be greater in the form of housing benefit to assist with the cost of a tenancy than paying the mortgage interest. That in my view does not materially affect the issue because that consideration would not of itself make the justification for the policy unreasonable or lacking in objectivity. It is something for Ministers as a matter of Government policy to decide. I would not have expressed the reasons for justification in quite the same terms as the tribunal. However I consider that their conclusion was correct. For myself the letter from the Minister to the Member of Parliament sets out an explanation for the policy and I am satisfied that the policy is both reasonable and objective. I would have accordingly have upheld the tribunal on this issue had I not set aside their decision for the reasons I have.
23. The appeal succeeds but that success is of no benefit to the claimant.

(Signed)

D J MAY QC

Commissioner

Date: 26 July 2004