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The distinction drawn between on remand and sentenced prisoners in Housing Benefit rules is lawful

17th June, 2022

Ryan Taylor v. Department for Communities and Department for Work and Pensions [2022] NICA 21

Background

Mr Taylor, the appellant, was a private tenant who received Housing Benefit payment to cover his rent.

In September 2019, he was held in custody on remand. During this time, his rent continued to be covered by Housing Benefit. However, in December 2019, the appellant was sentenced to eight months imprisonment and his Housing Benefit payments stopped.

As set out below, the Housing Benefit Regulations (NI) 2006, as amended by the Social Security (Miscellaneous Amendments) Regulations (NI) 2003, allow for temporary absences from accommodation subject to Housing Benefit for up to 13 weeks. For imprisonment on remand this can be extended to 52 weeks, but it cannot be extended for periods of imprisonment following sentence.

By means of judicial review, the appellant challenged the lawfulness of the 2006 Regulations. He argued that the difference in treatment between temporary absence due to imprisonment on remand and temporary absence due to imprisonment after sentence is unlawful and contrary to the European Convention on Human Rights (ECHR). He sought an order from the Court quashing the provisions and/or a declaration that they are unlawful.

The appellant’s application was dismissed by Deputy Judge Friedman on 18 December 2020: Taylor, Re Application for Judicial Review (Rev 1) [2020] NIQB 78. He appealed to the Northern Ireland Court of Appeal, submitting new evidence about his rental liability and payments. The Department for Communities and the Department for Work and Pensions (DWP) lodged a cross-appeal challenging two discrete conclusions of the High Court judge.

Legislation

Housing Benefit Regulations (NI) 2006

The legislative position is set out in regulation 7 of the Housing Benefit Regulations (NI) 2006.

Paragraph 13 of regulation 7 provides that a person can be temporarily absent within Northern Ireland from his main dwelling, but still treated as occupying it, up to an overall limit of 13 weeks.

Paragraphs 16, 16A and 17 provide that the following people can be treated as occupying their home up to an overall limit of 52 weeks:

  • A person who is detained in custody on remand pending trial
  • A person detained pending sentence upon conviction and
  • A person required to reside in a dwelling other than their home as a condition of bail.

People who are detained in custody following sentence upon conviction are not included.

The provisions mean that a prisoner on remand continues to be treated as occupying his home up to a maximum period of 52 weeks. However, a prisoner following sentence on conviction is only treated as continuing to occupy his home for 13 weeks, after which point entitlement to Housing Benefit ends.

Article 14 European Convention on Human Rights (ECHR)

The appellant argued that the provisions of the Housing Benefit (NI) Regulations 2006 breached his human rights under the European Convention on Human Rights. He relied on Article 14 of the ECHR.

Article 14 ECHR provides that the rights and freedoms that people are entitled to under the ECHR should 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.

Article 14 ECHR does not provide a stand-alone right. It must be ‘read with’ or considered in conjunction with another ECHR right. In the appellant’s case, he argued that his right not to be discriminated against should be read with Article 8 (right to a private and family life) and Article 1, Protocol 1 (protection of property).

In order to establish whether there has been a breach of Article 14 ECHR, the Court undertakes the following assessment:

  • First, only differences in treatment based on an identifiable characteristic amount to discrimination under Article 14. This could be on the basis of one of the grounds mentioned in Article 14, i.e. sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or on the basis of some other status.
  • Secondly, there must be a difference in treatment between the appellant and a person in an analogous or relatively similar situation.
  • Thirdly, even if there is a difference in treatment between identifiable groups who are in relatively similar situations, it will not amount to discrimination under Article 14 ECHR if it is justified. Difference in treatment will be justified if it pursues a legitimate aim and it does so in a way that is proportionate, i.e. it doesn’t use a sledge hammer to crack a nut.
  • Finally, states have a ‘margin of appreciation’ in deciding whether differences in treatment are justified. A wide margin of appreciation is allowed for measures of economic or social strategy, such as the administration of benefits.

Decision of the NI Court of Appeal

The appellant’s appeal raised two fundamental issues:

  • First, whether he was a ‘victim’ of a breach of an ECHR right. ‘Victim’ is defined in section 7 of the Human Rights Act 1998.
  • Secondly, if he is a victim, are the relevant provision of the 2006 Regulations unlawful and contrary to Article 14 ECHR when read with Article 8 and Article 1, Protocol 1.

Was the appellant a victim of a breach of a European Convention on Human Rights right?

First, the Court considered whether the appellant is a victim of a breach of a ECHR right. Applying the case of Senator Lines GMBH v. Austria and Others [2006] 21 BHRC 640, the Court stated at paragraph 28:

‘Plainly, a vague or fanciful possibility of a Convention violation will not suffice. In short ‘risk’ in this context denotes real risk. This requires, per Senator Lines, a reasonable and convincing evidential foundation.’

The Court considered the appellant’s evidence. This indicated that the appellant had, despite periods of custody, successfully maintained his payments of rent via a combination of his remand prisoner status, payments by his mother and interim relief granted by the court.

The Court decided that the appellant’s argument that he was a ‘victim’ was based on a future possibility of him being convicted of a criminal offence, forfeiting Housing Benefit and being unable to fund his rental payments in another way. This, the Court considered, contained too many unknowns to give the appellant victim status.

The Court concluded that the appellant is not a victim within section 7 of the Human Rights Act. On this basis, the Court dismissed the appellant’s appeal.

Article 14 ECHR

The Court went on to consider the appellant’s arguments on Article 14 ECHR. This was the aspect of the case with which the cross appeal was concerned. The Department and DWP challenged whether the appellant had ‘other status’ and was in an analogous situation for the purpose of Article 14.

First, the Court decided that the appellant does not possess ‘other status’ under Article 14.

Secondly, the Court rejected the appellant’s argument that his comparator group was that of an unconvicted, or on remand, prisoner. The Court decided that there are multiple differences between remand and sentenced prisoners, and there was not, therefore, a relevantly analogous situation.

Finally, the Court considered the parties’ arguments on justification. In doing so, it acknowledged that the state has a wide margin of appreciation when it comes to matters of socio economic policy. It decided that justification was established, stating:

‘It is not for this court to second guess either the constituent elements of the policy which was formed or the legislative choice adopted to give effect thereto. This is a paradigm case of choices made by the legislature in the distribution of finite State resources in the field of socio-economic policy.’

On the basis of the above, the Court dismissed the appellant’s appeal and allowed the cross appeal.

For a full copy of the judgment, click here.