IN THE UPPER TRIBUNAL	Case No.  CH/1334/2010
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is dismissed.

REASONS FOR DECISION

1.	The claimant and her husband live alone in a two bedroom flat.  They need a second bedroom principally because the claimant had a leg amputated above the knee in 2008 and needs a wheelchair, hoist and various other paraphernalia around her bed.  The claimant claimed housing benefit on 18 February 2009 and was awarded benefit.  However, the effect of regulation 13(D)(3) of the Housing Benefit Regulations 2006 is that if the claimant and her husband are to be treated as a couple within the meaning of Part 7 of the Social Security Contributions and Benefits Act 1992, then the housing benefit is to be calculated on the basis that they are entitled to one bedroom only.

2.	The local authority did treat the claimant and her husband as a couple and assessed her entitlement to benefit on this basis.  This left a shortfall between the benefit and the rent which the local authority has so far made up by making discretionary housing payments.  This has involved the claimant in having to apply regularly, about every 3 to 4 months for such payments, and to disclose details as to her and her husband’s income and expenditure each time.  She finds this upsetting and intrusive.

3.	She claims that the regulations prescribing the calculation of an appropriate maximum benefit is incompatible with the Human Rights Act 1998 in that it does not take into account the essential housing needs of all severely disabled claimants.  She contends that as she required separate bedrooms for medical reasons, she ought to receive benefit calculated on the basis that she was entitled to two bedrooms. 

4.	Under section 137(1) of the Social Security Contributions and Benefits Act 1992, unless the context otherwise requires, in Part 7 of that Act “couple” means, inter alia, “a man and a woman who are married to each other and are members of the same household”.  It seems to me that the context could otherwise require if giving it that meaning would involve an infringement of the Human Rights legislation and convention.  On the other hand, I see grave practical problems in giving some other construction to the word “couple”, which applies equally to the other prescribed categories of “couple”.  It may be possible, applying the extended powers of construction available in human rights cases to exclude people who cannot reasonably be expected to share a bedroom, but in the present case there could be bedrooms large enough to accommodate the claimant and her husband and they may be only too pleased in such a case to share.  In the case of the claimant and her husband, it may be possible to establish the size of bedroom that would be required and that there is none reasonably obtainable.  In other cases, this could be an issue.  There may be issues as to whether it should be any bedroom or only the particular bedroom or bedrooms available in the actual dwelling.

5.	Unless some such restricted construction of “couple” could be achieved, there is no doubt that the claimant and her husband are a couple for this purpose and they would only be entitled to the one bedroom provided.  If this involved an infringement of the claimant’s human rights, it is possible that this might lead to the invalidity of the regulation, but it would not entitle the claimant to more housing benefit.

6.	There is no doubt that the claimant is not being treated less favourably than anybody else in relation to entitlement to housing benefit.  The real question is whether she ought to be treated more favourably to take account of her disabilities.  This question was addressed in the recent decision in CH/2823/2009, where a severely disabled student who required carers to assist him and be close at hand throughout was entitled to housing benefit at the two bedroom rate because he needed them to sleep in his home to be available at all times.  If he had had a single carer living with him all the time, then the carer would have been counted as a person living in the property and the allowance would have been calculated at the rate appropriate for a two bedroom dwelling.  Instead, a number of carers attended on him at different times, all of whom lived elsewhere.  It was held by Judge Howell QC that, although he reasonably needed two bedrooms, to allow the attendant carer somewhere to sleep when not needed, there was no infringement of his human rights because he was only awarded housing benefit appropriate for a one bedroom flat.

7.	It was further held that there was no breach of his human rights in this approach.  There was no adverse differential treatment.  The case differed from the present in that, although the claimant did not get an allowance based on the actual accommodation he actually required, he did get housing benefit as a full time student as a disabled person when a non-disabled student would get none.  He also got extra premiums in his applicable amount and a higher rent allowance than a non-disabled single recipient of his age whose rate was limited to just a bedroom in shared accommodation.  The claim that there was adverse differential treatment failed as it was not possible to identify on the facts any relevant way in which a non-disabled person in otherwise similar circumstances would get any more money than the claimant (paragraphs 35 to 36 of the decision).

8.	The judge then turned to the claim of failure to provide different treatment in the claimant’s favour.  He applied the principle enunciated by the European Court of Human Rights in Thlimmenos at (2001) 33 EHRR 18, paragraph 44, where it was said that the right not to be discriminated against in the enjoyment of Convention rights was violated “when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”  Judge Howell went on to draw attention to the state’s wide margin of appreciation in matters of public policy and the allocation of public resources.  He continued at paragraphs 46-51 as follows:

46.	This principle must in my view be of particular relevance in any complaint to a court that additional amounts of social assistance, beyond those the national social security and social assistance systems already provide, are required as a matter of law to be awarded to particular people or groups of people by virtue of Article 14.   As already noted, even in the case of the exclusionary rule which prevented a disabled person’s husband joining her in this country (because they were unable to meet the standard requirement of self-sufficiency and lack of recourse to public funds), the Court of Appeal in AM (Somalia) held the rule met the test of objective and reasonable justification.  Maurice Kay LJ specifically referred to the relatively small additional cost to public funds involved but after a review of the whole facts concluded:  
“29. ... All this convinces me that it is reasonable and proportionate to have a criterion of self-sufficiency without a general exception for the disabled.  It will produce cases of hardship but that in itself does not render it disproportionate, particularly where provision is made for exceptional compassionate circumstances.”
Elias LJ at paragraphs 63ff dealt more specifically with the question of public resources,      in a passage that deserves to be quoted almost in its entirety: 
“63. The only issue is whether there is a justification for not making an exception, by way of excluding from the scope of [the standard rule], for spouses who are disabled to the extent that they are unable to work.  It was not suggested, or at least not with any vigour, that this was a case of traditional indirect discrimination.  In any event, if and so far as it was, the complaint must fail.  There can, in my view, be no doubt at all that the rule which permits partners to be together only if they are not a drain on the public purse is manifestly justified.  
64. Mr Fordham [for the appellant] submits that precisely because the number of potential beneficiaries of an exemption from the rule will be relatively small, the additional cost will be limited.  The Article 8 rights of the disabled demand that the state supports this group and therefore the failure to make an exception to [the rule] is plainly disproportionate.
65. I reject this argument, essentially for the following reasons, which are in large part interrelated.  First, this is an area of social policy concerning control of who should be allowed to enter this country and in what circumstances.  As I have noted, the courts are particularly reluctant to interfere in such areas.  
66. Second, as Maurice Kay LJ has pointed out, the courts have frequently recognised that “bright line” rules are generally acceptable in such cases notwithstanding that they might produce some hardship.
67. Third, the practical effect of making the exception involves public expenditure. In my judgment the courts will be particularly slow to require special treatment for a group when it affects the distribution of national resources, even if it be the case that the sums will be relatively small.
68. Fourth, and in my view importantly – and this is likely to be true of most indirect discrimination claims of this nature – it is difficult to foresee what other potential claims of a similar kind there may be.  ... given the wide potential category of personal characteristics which might fall under the concept of “status” in Article 14, there is potentially a broad range of cases where persons would be adversely affected by the application of a rule because of some characteristic related to that status.  This does not merely create a difficulty in foreseeing the potential range of claimants urging special treatment, but it also makes the potential costs very difficult to predict.  These uncertainties reinforce the justification for a bright line rule.  
69. Fifth, as Ms Giovannetti, counsel for the Secretary of State, emphasised, there would be additional administrative costs in having to identify whether a particular case falls within or outwith the exception – a particular difficulty given that the concept of disablity itself is imprecise – and such cases would have to be periodically reviewed.  Indeed, administrative burdens will almost inevitably be created once one departs from a bright line rule because of the need to draw the distinctions which a more nuanced rule will create.
70. Sixth, as I have said, this is not a case of direct or planned discrimination; as Lord Hope observed in AL (Serbia), para 10, the absence of targeting will be an important factor when determining whether potential discrimination is justified. 
71. Finally, a factor lending some additional support to this conclusion is the fact that the Secretary of State is empowered in particularly compassionate cases to exercise a discretion in favour of entry.  This was a factor which helped to render the rule proportionate in the AL (Serbia) case: see the observations of Lord Bingham at paragraph 3.
72. For those reasons, therefore, I am satisfied that the failure to adopt a special rule for those whose spouse in this country cannot work by reason of disability is fully justified.  The rule is lawful notwithstanding its discriminatory impact.” 
47.	Those or corresponding considerations would apply equally to this case to prevent the housing benefit rule here in question from being unlawful under Article 14 even if contrary to the view I have expressed this is a case of adverse differential treatment; and in case anything turns on it I expressly so find.  They must in my judgment apply with even more force to do so when the claim is viewed as one under the Thlimmenos principle, since here the question is purely one of the allocation of social assistance resources under the benefits scheme, and what is sought is not simply the disapplication of a negative exclusionary rule, but the award of an additional cash benefit outside the rules altogether for which there is in fact no valid “system of reference”.
48.	In such a context, and against the background of what the benefits system already does provide for disabled people in this claimant’s situation, the argument that an additional cash allowance has to be created by judicial intervention under Article 14 must in my view be approached with extreme caution; even more caution, if anything, than that displayed by the Court of Appeal in AM (Somalia).   The self-evident (and in my judgment self-evidently legitimate) aim of the rule being challenged is to control the cost of housing benefit and ensure that this form of social assistance is paid out only for its purpose of helping providing people with a home, not for accommodation to be used for other purposes.  It applies the objective and in my judgment entirely rational criterion that the accommodation allowances therefore depend on the number of occupiers, as defined, that is residents living in the property as their home; not people temporarily there for other purposes however necessary or commendable.  
49.	The claimant’s argument really comes down in my view to saying that because of his special needs as a disabled person he requires a more expensive home for himself, and should be entitled to extra housing benefit to reflect this.  He has (or those acting on his behalf have) chosen to pin the claim on the extra room rate for another full-time resident but once one departs from the rules the reality, it seems to me, is that it is the same argument in principle whether quantified in that way or as extra cash towards the increased cost of renting a ground-floor flat with level access, wider doors and other features or adaptations to make it a more suitable home for him.  
50.	The benefits system is intricate and complicated, and as has been seen contains many detailed provisions that interact and interconnect with one another.  Of course in such a massive and complex system there will be apparent anomalies and cases where deserving people, as I am sure this claimant is, will find themselves on the wrong side of some detailed distinction or with amounts they consider unfairly fail to reflect their special needs so that more should as a matter of social justice be done for them.  But the evaluation, and if necessary correction, of such matters and the provision of the extra resources for the purpose are questions for the legislature and the executive, and in my judgment well within the principle emphasised by both the ECtHR and the Court of Appeal in the cases I have cited, that these are areas from which courts applying the Convention must stand back, as outside the proper scope of intervention under Article 14. 
51.	The factors of the practical need for a single clearly-defined rule, the existence of the supplementary system of discretionary housing payments to alleviate hard cases (which even if less than perfect did in fact do exactly that for this claimant for the relevant year), and the unknown quantity of other groups who might with equal justice emerge to claim special treatment and extra cash, all support that conclusion in this case at least as much as in AM (Somalia).  Mr Buley naturally pointed to the introduction of the special extra room allowance for the severely disabled from April 2011 as a de facto acknowledgment that the previous rule was unjustified, but in my judgment that does not at all follow as a matter of law under Article 14.  The extra allowance to alleviate the position of comparatively few claimants is of course being introduced at the same time as much more general cuts across the board in which a lot of others will suffer.  In my view the effect is merely to underline the point that the making of such changes, the amounts involved and their timing, are matters for legislation, not judicial tinkering with just one setting in one individual piece of the overall machinery.”
9.	In my judgment, similar considerations apply in this case.  It does not appear to me that the provisions that have been made, giving “couple” its normal meaning under Part 7 of the 1992 Act, and the failure to make special provision for this type of case beyond the provision of the limited funds available by way of a discretionary housing payment involve any breach of Article 8 or Article 14.  This appeal therefore fails and must be dismissed.

(signed)		Michael Mark
			Judge of the Upper Tribunal

			30 March 2011