Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case Nos. CH/225/2011

ADMINISTRATIVE APPEALS CHAMBER CH/224/2011

CH/464/2011

 

Before: A Lloyd-Davies Judge of the Upper Tribunal

 

DECISION

 

1. The three decisions of the tribunal held on 17 June 2010 are erroneous in law.  I set those decisions aside.  I give the decisions that the First‑tier Tribunal ought to have given namely that each of the appeals was disallowed and that each claimant ceased to be entitled to housing benefit on his or her then claim after his or her absence in hospital as an in‑patient for a period of in excess of 52 weeks. 

 

REASONS

 

1. Each of the claimants (whom I shall call “O”, “SN” and “SH”) suffers from a serious mental illness.  The questions that arise in these appeals is whether the provisions of the housing benefit legislation which caused their housing benefit entitlement to cease after they had each been in hospital for 52 weeks violate their rights under the ECHR and, if so, what the appropriate remedy is.

 

The Housing Benefit legislation

 

2. Section 123(1)(d) of the Social Security Contributions and Benefits Act 1992 provides that there should be a prescribed scheme for the provision of housing benefit.  Section 130(1) of the 1992 Act provides that a person is entitled to housing benefit if -

 

“he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home”

 

and subject to further pre‑conditions set out in that section.  The Housing Benefit Regulations 2006 were made pursuant to the 1992 Act.  Regulation 7 sets out the circumstances in which a person is or is not to be treated as occupying a dwelling as his home.  The general rule as to temporary absences (to be found in regulation 7(13)) is that a claimant is treated as occupying his home (if he intends to return and the home is not let or sub‑let) for absences not exceeding 13 weeks.  Regulation 7(16) and 7(17), however, make special provision for certain types of absences in the following terms:

 

“ (16) This paragraph shall apply to a person who is temporarily absent from the dwelling normally occupied as his home (“absence”), if –

 

(a) he intends to return to occupy the dwelling as his home; and

 

(b) while the part of the dwelling which is normally occupied by him has not been let or as the case may be, sublet; and

 

(c) he is –

 

(i) detained in custody on remand pending trial or, as a condition of bail, required to reside –

 

(aa) in a dwelling, other than the dwelling he occupies as his home; or

 

(bb) in premises approved under section 13 of the Offender Management Act 2007,

 

or, detained pending sentence upon conviction; or

 

(ii) resident in a hospital or similar institution as a patient; or

 

(iii) undergoing, or as the case may be, his partner or his dependant child is undergoing, in the United Kingdom or elsewhere, medical treatment, or medically approved convalescence, in accommodation other than residential accommodation; or

 

(iv) following, in the United Kingdom or elsewhere, a training course; or

 

(v) undertaking medically approved care of a person residing in the United Kingdom or elsewhere; or

 

(vi) undertaking the care of a child whose parent or guardian is temporarily absent from the dwelling normally occupied by that parent or guardian for the purpose of receiving medically approved care or medical treatment; or

 

(vii) a person who is, in the United Kingdom or elsewhere, receiving medically approved care provided in accommodation other than residential accommodation; or

 

(viii) [certain students]; or

(ix) a person who is receiving care provided in residential accommodation other than a person to whom paragraph (11) applies; or

(x) a person who has left the dwelling he occupies as his home through fear of violence, in that dwelling, or by a person who was formerly a member of the family of the person first mentioned, and to whom paragraph (6)(a) does not apply; and

 

(d) the period of his absence is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely substantially to exceed that period. 

 

(17) A person to whom paragraph (16) applies shall be treated as occupying the dwelling he normally occupies as his home during any period of absence not exceeding 52 weeks beginning from the first day of that absence.”

 

It is regulation 7(17), when taken with regulation 7(16)(c)(ii) relating to hospital in‑patients, which is central to these appeals.  One claimant asserts that there has been an unjustifiable violation of his Article 8 rights.  All the claimants maintain that the provisions, so far as they affect mentally ill patients, are indirectly discriminatory and cannot be justified and that a discretion should be read in under section 3 of the HRA 1998 so as to permit housing benefit authorities (so far as concerns such patients) to extend the 52 week period in cases where it would be proportionate to do so. 

 

The facts

 

3. O is the assured tenant of a property in Worcester; his landlord is West Mercia Homes; he was in receipt of housing benefit.  The local authority with responsibility for administering housing benefits in the area is Worcester City Council (“WCC”).  On 7 November 2006, O was admitted to hospital under section 2 of the Mental Health Act 1983.  On 30 November 2006 he was detained under section 3 of that Act.  He remained in hospital under section 3 until 29 July 2008.  In May 2007 WCC indicated to O’s solicitor that O’s housing benefit would expire on 12 November 2007, but that WCC had a discretion to extend the period of payment for a short time if O still intended to return home (this was in fact an erroneous reading of regulation 7(16)(c)(ii) and 7(17)).  On 6 February 2008 WCC, having received confirmation that O was not to be discharged in the near future, notified O that payment of housing benefit would cease on 11 February 2008.  Because of the risk that O’s home might be repossessed an application for judicial review was issued on his behalf.  Interim relief requiring WCC to continue to make payments equivalent to O’s housing benefit payments was ordered on 21 February 2008 with effect from 11 February 2008.  On 22 May 2008 O’s solicitors wrote appealing WCC’s decision of 6 February 2008.  O was finally discharged from hospital on 29 July 2008.  For a short period he stayed with relatives while repairs were being done to his home, where he returned on 7 October 2008.  He was re‑awarded housing benefit from 30 October 2008.

 

4. SN has been the tenant of a property in Worcester since 1997.  His landlord is Worcester Community Housing.  WCC is the housing benefit authority for the area.  The rent payable by SN was met by housing benefit.  SN was detained in hospital under section 3 of the 1983 Act on 25 September 2007.  Housing benefit continued to be paid until 1 December 2008.  By a letter dated 26 November 2008 SN was informed by WCC that, as he had been in hospital for over 52 weeks his housing benefit would cease from 1 December 2008.  SN’s solicitors appealed the decision of 26 November 2008 on 4 March 2009.  SN continued to pay his rent from his savings.  SN was discharged from section 3 on a community treatment order on 30 September 2009 and returned home.  During the period of his absence after December 2008 the amount of rent he paid amounted to over £2,500.

 

5. SH was the secure tenant of Warwick District Council (WDC) in a flat where she had lived since October 1994.  She was admitted to hospital under first section 2 and then section 3 of the 1983 Act in January 2008.  Prior to this she had set fire to her flat and lost all her possessions.  On 5 February 2009 WDC wrote to SH to notify her that housing benefit payments had ceased with effect from 19 January 2009.  SH at some time after that decided to apply for a housing transfer (because relations with her previous neighbours was strained).  She was advised that the transfer would be jeopardised if she had rent arrears.  She therefore used her savings to pay her rent amounting to about £1,300.  On 15 June 2009 SH was granted a housing transfer and commenced a new tenancy and was awarded housing benefit.  On 30 April 2009 SH appealed WDC’s  housing benefit decision of 5 February 2009.

 

6. Each of the claimants has had a subsequent period of readmission to hospital since the dates of the decisions appealed against. Each claimant’s rent liability during the relevant period was between £70 and £80 per week.

 

7. All parties were represented before the First‑tier Tribunal, as was the Equality and Human Rights Commission (“the EHRC”), which had been given permission to make submissions. I understand that the SSWP was invited to become a party, but chose not to do so.

 

8. In essence the First‑tier Tribunal decided:

 

(a) Nobody absent from home because he was an in‑patient in hospital could be paid housing benefit for more than 52 weeks.

 

(b) This had a disproportionate impact on the mentally ill who were more likely than other hospital patients to be absent for more than 52 weeks.

 

(c) Although Article 8 of the ECHR did not require the state to provide particular welfare benefits, it had to operate any scheme which did exist compatibly with Article 8 and the Commission decision in Marzari v Italy 28 EHRR (CD) 175 showed that this could give rise to a positive obligation to provide housing assistance to someone suffering from a severe disease.

 

(d) The terms of the regulations therefore interfered with O’s Article 8 rights, since they were likely to result in his losing his home.

 

(e) The interference was not proportionate.  Although O would not be rendered homeless, the absence of any discretion under the regulations for a housing benefit authority to consider O’s particular needs or to balance these with the interests of society generally, rendered the operation of regulations 7(16) and (17) disproportionate.

 

(f) All three appeals fell within the ambit of Article 8 and Article 1 of Protocol 1 to the ECHR and Article 14 was engaged in that regulations 7(16) and (17) had an indirectly discriminatory effect on the long‑term mentally ill, based on the principle in Thlimmenos v Greece (2001) 31 EHRR 14

 

(g) The discrimination was not objectively justified.

 

(h) The regulations were to be read down under section 3 of the HRA 1998 so there was a discretion in regulation 7(17) to pay housing benefit for longer than 52 weeks in respect of long‑term hospital patients for such a period as the authority considered to be proportionate in all the circumstances of the case.

 

The SSWP applied for permission to appeal in the cases of O and SN, and WDC in the case of SH.  The First‑tier Tribunal Judge granted the SSWP and WDC permission to appeal to the Upper Tribunal.  In the event the SSWP took over the conduct of the appeal in SH from WDC.  The EHRC intervened before the Upper Tribunal by way of written submissions.  In addition to the evidence before the First‑tier Tribunal (which included witness statements by or on behalf of the three claimants setting out their own particular circumstances and the evidence in O’s judicial review proceedings) I had further evidence on behalf of the claimants namely -

 

(a) a witness statement from Emma Mamo, an employee of MIND, exhibiting a report from a consultant psychiatrist – this statement dealt with the importance of stable accommodation to mental health patients;

 

(b) a report from Diana Sanderson, a health economist – this report dealt with (i) the differences in lengths of stay in hospital of mental health patients and non‑mental health patients and (ii) the potential cost consequences due to loss of housing benefit by mental health patients hospitalised for long periods.

 

(c) a witness statement from the claimants’ solicitor which updated the history of each of the claimants (in particular the importance to O’s and SN’s rehabilitation of a return to their own home) and made observations on the evidence referred to at (d) below. 

 

On behalf of the SSWP the further evidence was -

 

(d) a witness statement from Susan Donald a benefits manager at a housing benefit authority – this statement dealt with the potential administrative burden on housing benefit authorities in dealing with a discretionary scheme for housing benefit payments to the mentally ill.

 

All this additional evidence was admitted without objection by either side:  the evidence referred to in (a) and (b) above was not essentially challenged by the SSWP.

 

9. I held an oral hearing of the appeals at which the SSWP was represented by Ms Demetriou QC of counsel, and the claimants were represented by Ms Markus of counsel.  There were observers from EHRC and WDC.  I am grateful to all concerned for their submissions, both written and oral, and also to the solicitors instructed on behalf of the claimants for the preparation of the documentation.  Following the hearing I directed certain further submissions to which the parties’ representatives and the EHRC responded.

 

The grounds of appeal

 

10. On behalf of the SSWP it was submitted:

 

(a) that the First‑tier Tribunal was wrong to conclude that regulation 7(17) taken with regulation 7(16)(c)(ii) engaged O’s Article 8 rights;

 

(b) that the First‑tier Tribunal was wrong to conclude regulation 7(17) so taken was indirectly discriminatory; and

 

(c) that, in any event, regulation 7(17) so taken was objectively justified. 

 

It was further submitted on behalf of the SSWP that, in considering rights under the ECHR, regard should not be had to the UN Convention on the Rights of Persons with Disabilities (“CRPD”) since that Convention, although signed, had not been ratified at the date of the decisions appealed against.  I cannot accept that submission in the light of the decision of the Court of Appeal in Burnip v SSWP [2012] EWCA Civ 629 (currently under appeal to the Supreme Court), where it was made clear at [22] that the consideration of rights under the ECHR should be informed by the CRPD, notwithstanding matters of chronology.  The Articles of CRPD of particular relevance are Article 2 which provides that discrimination on the grounds of disability includes “the denial of reasonable accommodation”, and Article 19 (relating to reasonable accommodation) which provides that states must ensure that persons with disabilities “have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement”. 

 

Non‑contentious matters

 

11. None of the three claimants is entitled to be considered for discretionary housing payments, since they can only be made available to those who have an underlying housing benefit entitlement.  In the case of each claimant such underlying entitlement ended after his or her 52 week absence in hospital. 

 

12. Long-term mental illness was accepted as being a disability and as such an “other status” for the purposes of Article 14 of the ECHR.

 

13. Housing benefit was a possession for the purposes of Article 1 of Protocol 1 to the ECHR.

 

14. Indirect discrimination on the grounds of disability was not such discrimination (as for example gender or race) which required special scrutiny or “weighty reasons” before any discrimination could be justified - see AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ. 634 at [15‑16] and [61-2] and, also, Burnip at [28] (I remark that the First‑tier Tribunal seemed, in paragraph 19 of its decision, to require the higher standard).

 

15. It was accepted that the words which the First‑tier Tribunal directed should be read in to the regulations under section 3 of the HRA 1988 were too wide inasmuch as they provided that there should be a discretion to pay housing benefit after the expiry of a 52 week period of absence to all hospital in‑patients and not merely those suffering from mental illness. 

 

Article 8

 

16. Arguments on Article 8 concerned O alone.  Article 8 of the ECHR provides:

 

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

 

2. There should be no interference by a public authority for the exercise of this right except 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 the rights and freedoms of others.”

 

The First‑tier Tribunal relied on the case of Marzari.  This case concerned the eviction by a state authority of the claimant, who suffered from severe physical disabilities, from his apartment.  The circumstances of O are far from that case.  It is clear from the authority of R(TG) London Borough of Lambeth [2011] EWCA Civ. 526 at [33] and following that “the [European Court of Human Rights] has never held that a failure of the State to provide financial or other support to a person represented a violation of Article 8”.  It was also argued on behalf of O that his detention, his subsequent inability to fund his own accommodation, and potential subsequent risk to his mental health gave rise to a breach of the negative obligation not to interfere with his Article 8 rights unless justified under Article 8(2).  I cannot accept this.  O’s detention was clearly in the interests of his own health and security.  On discharge O was entitled to apply for housing benefit again.  There is nothing in Article 8 to require that he should be returned to the same accommodation (a point confirmed in Marzari).  Nor does Article 19 of CRPD (relating to the provision of reasonable accommodation for disabled persons) require reinstatement in a pre‑existing home.

 

17. In short regulation 7(17), taken with regulation 7(16)(c)(ii), in limiting the amount of financial support to which a claimant may be entitled does not touch upon the right to respect of the home. 

 

Indirect discrimination

 

18. All claimants claimed that regulation 7(17), taken with regulation 7(16)(c)(ii) breached their rights under Article 14 ECHR read with Article 1 of Protocol 1 and/or Article 8.  It was accepted on behalf of the Secretary of State that the facts of the case fall within the ambit of Article 1 of Protocol 1 so that Article 14 could potentially be engaged.  Like the Court of Appeal in Burnip at [8], I do not consider it necessary in these circumstances to consider whether these cases also fall within the ambit of Article 8.

 

19. There was no argument that the regulations in question were directly discriminatory.  Rather, on behalf of the claimants it was submitted that they were indirectly discriminatory on the grounds that they impacted more detrimentally on in‑patients who were mentally ill than on those who had physical health problems.  The SSWP did not accept this. 

 

20. I accept that statistical evidence is not a pre‑requisite to finding indirect discrimination – see DH v Czech Republic [2008] 47 EHRR 3.  The evidence before me was to the effect:

 

(a) that there were very few non‑mental conditions that had a mean length of stay in hospital of more than 15 days and that the vast majority of physical conditions had a mean length of stay of less than 10 days;

 

(b) that 4.5% of mental health patients (about 5,000 people) had a mean length of stay in NHS hospitals of more than one year;

 

(c) that if all hospitals, including independent hospitals, were taken into account over 30% of mental in‑patients had stays of more than one year; and

 

(d) that mental health patients admitted to hospital under section had longer mean lengths of stays than those without section. 

 

The SSWP did not controvert the statistics produced, but submitted that they did not show that the percentage proportion of mental patients who were in hospital for more than one year exceeded the percentage proportion of those with physical health conditions who were in hospital for more than one year.  I accept that this statistic was not available.  It does however, accord with common experience that the vast majority of those with physical health conditions will be discharged from hospital in a matter of days, if not weeks, and will either then return home or go into convalescent or residential care; the same is not true of patients who are mentally ill, especially those detained under section, of whom a significant minority may be detained for more than 52 weeks.

 

21. There were also evidence before both the First‑tier Tribunal and before me that employment rates among the general population were much higher than among the mentally ill, with the consequence that there was likely to be a higher proportion of the mentally ill in receipt of housing benefit.  I accept this.

 

22. I therefore accept the submission on behalf of the claimants that the 52 weeks cut‑off contained in the regulations under consideration adversely affects a significantly greater proportion of mental health patients than other hospital patients because a significantly greater proportion of patients stay in hospital for over 52 weeks as mental health patients and because mentally ill patients are more likely to be in receipt of housing benefits than are other patients.  (The one figure the statistics did not, however, show was what percentage of mental health patients could be expected to be able to return to their own homes within a reasonable period after the expiry of the 52 weeks:  possibly a substantial majority could never realistically be expected to return to their own homes within any reasonable period after the expiry of 52 weeks.)

 

23. The claimants also adduced evidence (in the shape of the witness statement of Emma Malmo and its exhibit) on the importance of stable accommodation being available to the mentally ill after discharge; there was further evidence in the cases of O and SN of the importance to them of being able to return to their own home.  There was no comparable evidence as to the effect on those physically ill.

 

24. On the evidence before me I am prepared to assume that the provisions under consideration indirectly discriminate against the mentally ill (especially those who are detained and have no choice as to when their discharge will take place). 

 

25. The arguments before me were not to the effect that the general rule contained in regulations 7(16)(c)(ii) and 7(17) was itself unreasonable and that a different rule should be adopted.  Rather it was based, as in Thlimmenos, as a case where different cases (long‑stay mentally ill in‑patients) should be treated differently from long‑stay physically ill in‑patients.

 

Justification

 

26. I turn to the question of justification.  This has recently been reconsidered by the Court of Appeal in Burnip (a case concerning the single bedroom rule for the purposes of housing benefit) and by the Supreme Court in Humphreys v HMRC [2012] UK SC 18 (a case concerning the “no‑splitting” rule for child tax credit).  In both Burnip and Humphreys there was express reliance on the explanation given by the European Court of Human Rights in paragraph 52 of Stec v UK [2006] 43 EHRR 47 where, after stating at the end of paragraph 51 that a state enjoyed a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment, the Court said:

 

“The scope of this margin will vary according to the circumstances, the subject matter and the background.  As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention.  On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy.  Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on the social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’.”

 

In both Burnip and Humphreys, there was an acknowledgement that the test just cited had been applied by the House of Lords in R(RJM) v SSWP [2008] UK HL 63, which concerned the denial of income support disability premium to rough sleepers.

 

27. In Burnip at [65] Henderson J, having rejected the submission that difference of treatment on the ground of disability required very weighty reasons for justification, went on to express the conclusion (agreed with by the other members of the Court of Appeal) that justification had not been shown in terms that the ‘single bedroom rule’ in housing benefit was not a “fair or proportionate response” to the discrimination that had been established.  In contrast, in Humphreys, Lady Hale (with whom the other members of the Supreme Court agreed) at [19] stated that even in cases of sex discrimination the normally strict test for justification gave way to the “manifestly without reasonable foundation” test in the context of state benefits.  At [20] she said that the real object of complaint in Humphreys (the “no splitting” rule) was the discrimination between majority and minority shared carers and that that, if that was regarded as a status, justification would turn on the “manifestly without reasonable foundation” test.  She had previously noted (at [18]) Lord Neuberger’s observations in RJM at [56] that this was “an area where the court should be very slow to substitute its view for that of the executive, especially as the discrimination is not on one of the express or primary grounds” and his further observations at [57]:

 

“The fact that there are grounds for criticising, or disagreeing with, [the executive’s] views does not mean that they must be rejected.  Equally the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified.  Of course, there will come a point where the justification for a policy is so weak, or the lines have been drawn in such an arbitrary position, that, even with the broad margin of appreciation according to the state, the court will conclude that the policy is unjustifiable.”

 

At [22], however, Lady Hale also said that the justifications put forward for the rule in question required careful scrutiny and concluded that the indirect discrimination in Humphreys was justified in terms that the “no‑splitting” rule was a reasonable rule for the state to adopt.

 

28. It seems to me that the question I must ask in the present case under the authority of Humphreys is whether the failure to treat the mentally ill differently from the physically ill in relation to the 52 week absence rule was “manifestly without reasonable foundation”.  Although the First‑tier Tribunal referred to RJM, it does not appear to have addressed this test.

 

29. The arguments before me primarily concentrated on whether, if regulation 7(17) when taken with regulation 7(16)(c)(ii) was indirectly discriminatory because it did not sufficiently address the different circumstances of mental health patients, those provisions taken in isolation could be justified.  I return to this issue below.

 

30. It seems to me, however, that there is a prior issue.  It is to be noted that there was no submission before me that the 52 week period of absence permitted for the categories of persons listed in regulation 7(16) was itself in general unreasonable:  indeed the EHRC accepted in a written submission that it had a legitimate aim.  It is also to be noted that, unlike, for example, the single bedroom rule under consideration in Burnip, the 52 weeks rule is not a rule which excludes claimants from the outset from entitlement to benefit or enhanced benefit:  rather it is a rule which provides an exception, beyond the normal 13 week absence rule, for the identified categories.  In my judgment, in the case of a rule which includes those who would otherwise be excluded from benefit, the state is clearly entitled to introduce a “bright-line” test and that any discrimination that might occur after the expiry of an accepted generally reasonable 52 week period could not be found to be “manifestly unreasonable”.  (In the context of universal credit, the shortly to be introduced working-age means-tested benefit where a “housing costs element” is to be the substitute for housing benefit, I note that draft regulations recently laid before Parliament provide that a maximum of six months absence is to be permitted for all categories of claimant without exception, save for victims of domestic violence where the maximum period is extended to 12 months). 

 

31. In the event that I am wrong in the conclusion that I have expressed in the preceding paragraph and the indirectly discriminatory effect of regulation 7(17) and 7(16)(c)(ii) has to be the subject of justification focused on those provisions alone, I turn to the other arguments addressed to me. 

 

32. On behalf of the SSWP, the point addressed by me in paragraph 30 above having been taken, it was submitted:

 

(a) The provisions already incorporated an element of double‑funding (inasmuch as both local authorities and the NHS would be funding during the period of a 52 week absence) and that this double‑funding, if a discretion was to be introduced, would be increased.

 

(b) The Housing Benefit Regulations did not in general require local authority decision makers to exercise discretion.  Reliance was placed upon the witness statement of Susan Donald.  The local authority information management systems were not equipped to handle confidential medical information and additional administrative costs would be incurred.  The proposed exception would cause decision‑makers to have to make a predictive judgment at or about the expiry of the 52 week period as to when any particular patient was likely to be discharged and whether it would be desirable for any particular claimant to return to his previous accommodation and if so at what stage of the discharge.

 

(c) It was undesirable to leave properties unoccupied for significant periods of time.

 

(d) The regulations in question did not result in claimants being left without accommodation or without suitable accommodation.  The availability of housing benefit after discharge enabled them to secure suitable and appropriate accommodation of their choice.  Further section 117 of the 1983 Act placed a duty on primary care trusts and local social services authorities, in conjunction with voluntary agencies, to provide aftercare for patients detained under the 1983 Act.  Aftercare planning, which would be carried out before the date of patient’s discharge, would certainly include the ensuring of the availability of suitable accommodation – reference was made to Chapter 27 of the Mental Health Act 1983 Code of Practice, published in 2008. 

 

 

(e) Reliance by the EHRC on Article 19 of the CRPD was misplaced since the regulations in question did not deny disabled persons reasonable accommodation nor did they oblige disabled persons to live in a particular living arrangement.

 

(f) The introduction of an exception for the mentally ill to the rule in regulation 7(17), when taken with regulation 7(16)(c)(ii), could well have the consequence that similar challenges would be made either by long‑term hospital patients with physical health problems, or by persons in the other categories listed in regulation 7(16)(c), for example those in residential accommodation or those receiving medically approved care or convalescence.  It was pointed out that women, who were more likely than men to be the object of domestic violence, might mount a parallel challenge on the grounds of sex discrimination to regulation 7(16)(c)(x).  

 

33. On behalf of the claimants and the EHRC it was submitted:

 

(a) The SSWP had never considered the lack of exception in favour of the mentally ill to be discriminatory and that the SSWP could not therefore have evaluated the justification for it.

 

(b) The permitted period of absence needed to bear some rational objective and proportionate relationship to the likely period of absence.  It did not do so in the case of a significant minority of mental health patients.

 

(c) The inflexible rule had serious adverse consequences on individual mental patients given the particular impact of homelessness or unstable accommodation for such patients and the incidence of debt (reference was made to the witness statement of Emma Mamo).

 

(d) The homelessness of mentally ill people gave rise to a range of significant further costs (as described in Part V of the report by Diana Sanderson) including the costs of delayed discharge, the costs of advice and support, the costs of homelessness applications, the costs of eviction and re‑letting, the costs of storage of possessions and the costs of temporary accommodation.

 

(e) The evidence on behalf of the claimants showed that any savings in housing benefits by virtue of the existing rule were likely to be outweighed by the financial costs of dealing with affected individuals losing their homes.

 

(f) The rigidity of the 52 week rule was accordingly disproportionate.

 

(g) The housing benefit legislation contained numerous discretionary elements, which were identified.

 

(h) In the light of R(Mwanza) v LB Greenwich (2010) 13 CCLR 454 there was a real risk that the authorities mentioned in section 117 of the 1983 Act would not provide accommodation themselves to meet ordinary housing needs.

 

34. My conclusions are as follows.  First, the absence of any prior justification for the provisions under consideration (which had their origins in the Housing Benefit Regulations 1987) does not preclude justification at a later stage.  Justification has to be considered at the time that it is called into question.  Secondly, and most importantly, the claimants have, in my judgment, concentrated too narrowly on the housing benefit rules.  It is clear that the housing of the long‑term mentally ill after discharge is a matter which involves the relevant primary care trust, the relevant local social services authority (which in most cases will not be the relevant housing benefit authority), voluntary agencies, as well as the relevant housing department and housing benefit authority.  To say that the housing benefit rules must therefore be amended (even in the light of the claimants’ evidence on comparative costs) is to focus on only one element of a complicated and overall structure and is to enter into the social and economic area, where it is the state which has to decide the disposition of resources and where the courts should be most reluctant to interfere.  Thirdly, although the administrative problems identified on behalf of the SSWP might be overcome and although local authorities do in the housing benefit context have to make discretionary decisions (for example in relation to discretionary housing payments), the discretion which is suggested should be introduced in the present case is of a different order.  These are not cases which for the most part would be “easy to recognise … and unlikely to undergo change or need regular monitoring” (see Burnip at [64]).  I recognise that regulation 7(16)(d) requires a housing benefit authority to exercise some predictive judgment:  the introduction of the proposed discretion, however, would require housing benefit authorities periodically to monitor the situation of a mentally ill patient prior to the expiry of the 52 week period, periodically thereafter if he had not been discharged and if he had been discharged, but not to his own home (for example into supported accommodation), to continue such monitoring.  The adverse exercise of the discretion could be the potential subject of an appeal or judicial review.  I consider that the problems involved are a different order to those considered in Burnip.  Fourthly, as was observed in paragraph [70] of AM (Somalia) this is not a case of planned or directed discrimination and the absence of targeting is an important factor when determining whether potential discrimination is justified.  Fifthly, as was observed in that case at [68] and as set out in paragraph 32(f) above, there is a real, and not fanciful, risk that other challenges to the 52 week rule would be made by persons in other categories within regulation 7(16)(c).  I conclude that the brightline rule is justified and is not manifestly unreasonable.  (I recognise that, in Burnip, some of the observations in AM (Somalia) were considered to be of lesser weight in the context of social security:  nonetheless the two factors mentioned above were not singled out.).

 

35. There is one final matter.  In the event that I should find that the 52 week rule was not justified in the case of mentally ill hospital patients, the claimants and the SSWP agreed that, pursuant to section 3 of HRA 1998, words could be read into regulation 7(17) and regulation 7(16)(d) extending the 52 week period for the mentally ill for “such a further period as is proportionate in all the circumstances of the case”.  I heard no argument on why section 3 would permit such reading in.  I comment, without the benefit of argument, that at first sight the reading in of a discretion to extend a fixed period provided by regulation smacks more of legislation than the interpretation permitted by section 3 – see Ghaidan v Godin‑Mendoza [2004] UKHL 30 at [33]. 

 

 

 

 

 

 

 

(Signed on the Original)

A Lloyd-Davies

Judge of the Upper Tribunal

 

19 December 2012