Gypsies – Housing benefit – Human rights – Claimant gypsies living on privately-run gypsy caravan site – Housing benefit subject to determination by rent officer in sum equal to local reference rent – Whether statutory housing benefit scheme discriminatory in respect of gypsies on private sites contrary to Article 14 of European Convention on Human Rights – Whether private gypsy sites having additional running costs not reflected in housing benefit – Claim dismissed
The claimants were Romany gypsies who lived on a privately-run caravan site and claimed housing benefit in respect of their rent. Under the statutory scheme established by, primarily, the Social Security Contributions and Benefits Act 1992 and the Housing Benefit Regulations 2006, persons renting from a housing authority were entitled to receive the full amount of their rent in housing benefit, while if they rented from other local authorities or housing associations they were entitled to the full rent unless the housing authority considered it to be “unreasonably high”, in which case the amount payable would be referred for determination by a rent officer. For those renting in the private sector, the appropriate maximum housing benefit that could be claimed was always subject to determination by a rent officer.
The claimants paid £85 in rent per week, including a £5 water charge. The rent officer determined that the water charge was ineligible as rent and that the rent was significantly higher than that which the landlord might reasonably have been expected to obtain. He determined a housing benefit rent allowance of £36.13, as being the relevant “local reference rent” reflecting the general level of rent charged for a similar home in the local area.
The claimants applied for judicial review of the rent officer’s decision on the ground that the statutory scheme, as it applied to gypsies and travellers on private sites, was discriminatory in terms of Article 14 of the European Convention on Human Rights, read with Article 1 of the First Protocol 1 concerning the right to respect for property and Article 8 concerning the right to respect for family and private life. They contended that the statutory scheme failed to meet the essential housing needs of gypsies on private sites since gypsy sites had particular site management needs, which resulted in additional costs and therefore a legitimately higher rent, which was not reflected in the housing benefit award.
Held: The claim was dismissed.
(1) Discrimination under article 14 occurred when, in terms of enjoyment of other Convention rights, there was, directly or indirectly, adversely differential treatment of individuals in analogous or relevantly similar situations, with no objective and reasonable justification for the distinction in treatment; or where individuals in relevantly different situations were, without justification, treated the same.
For the purposes of the claimants’ claim, the court was prepared to assume that a difference in treatment on the basis of the nature of the complainant’s landlord was a difference by virtue of “property status” or “other status” in terms of article 14, and that the claimants’ status as the tenants of a private landlord was sufficient to found a claim for discrimination under Article 14.
The claimants’ case was best characterised as an allegation that the scheme treated gypsies and travellers on private sites the same as non-gypsies and travellers on such sites: Thlimmenos v Greece (2000) 31 EHRR 411 and Burnip v Birmingham City Council [2012] EWCA Civ 629 applied. The alleged discrimination was indirect, so far as the rules, on their face, were neutral and applied generally across the board but were alleged to have disproportionately prejudicial effects on gypsies and travellers on private sites.
The additional management and infrastructure costs incurred by the landlord of a gypsy and traveller site might typically include site management, maintenance, clearance costs, fencing and security, and, often, further services such as education facilities for children, dispute resolution and personal support. However, the vast majority of those costs did not fall within the definition of “eligible rent” because they related not to the costs of accommodation but to the costs of other services and facilities. Those costs could not be taken into account in the rent assessment because they fell outside the housing benefit scheme altogether. Most of the additional costs of a gypsy and traveller caravan site therefore fell outside the scope of the housing benefit scheme. Those extra costs that did fall within the eligibility criteria were insignificant, since they were not only unparticularised and unquantified but were also very modest in amount. That was sufficient to dispose of the claim.
(2) In any event, there was objective justification for requiring gypsies and travellers on private sites to bear the additional costs of accommodation that their which their sites incurred, rather than the state bearing such costs through housing benefit. In considering whether a difference in treatment could be justified, the court should have regard to the effects in the individual case before it. The difference in treatment that the claimants complained of was justified given that the additional costs that might properly form part of “eligible rent” were small, uncertain and highly variable; moreover, there was no evidence that the claimants’ site had any such additional costs or, if it did, as to what those costs might be. It was also relevant that the alleged discrimination was not intentional or targeted. So far as gypsies on private sites were treated differently from those on local authority or housing association sites, that difference was justified since private sites were run by commercial landlords, without the constraints of any obligations to the public, and it was appropriate to subject them to some degree of control in respect of the rent that was recoverable through housing benefit. Even if the scheme had the consequence that gypsies and travellers living on private sites might have to make up a shortfall from their other income, that did not mean that they would inevitably be made homeless, nor did it prevent them continuing their traditional way of life; there was no evidence that a single gypsy or traveller had been evicted from a site and made homeless, in the sense of having to pitch by the roadside, because of the aspects of the scheme of which the claimants complained. In those circumstances, the policy reflected in the scheme was not manifestly without reasonable foundation: Humphreys v Commissioners of HM Revenue and Customs [2012] UKSC 18 applied.
Marc Willers and Desmond Rutledge (instructed by Keoghs Nicholls Lindsell & Harris, of Preston) appeared for the claimants; James Strachan (instructed by the Treasury Solicitor) appeared for the defendant; the interested party did not appear and was not represented.
Sally Dobson, barrister
R (on the application of Knowles and another) v Secretary of State for Work and Pensions
Gypsies – Housing benefit – Human rights – Claimant gypsies living on privately-run gypsy caravan site – Housing benefit subject to determination by rent officer in sum equal to local reference rent – Whether statutory housing benefit scheme discriminatory in respect of gypsies on private sites contrary to Article 14 of European Convention on Human Rights – Whether private gypsy sites having additional running costs not reflected in housing benefit – Claim dismissedThe claimants were Romany gypsies who lived on a privately-run caravan site and claimed housing benefit in respect of their rent. Under the statutory scheme established by, primarily, the Social Security Contributions and Benefits Act 1992 and the Housing Benefit Regulations 2006, persons renting from a housing authority were entitled to receive the full amount of their rent in housing benefit, while if they rented from other local authorities or housing associations they were entitled to the full rent unless the housing authority considered it to be “unreasonably high”, in which case the amount payable would be referred for determination by a rent officer. For those renting in the private sector, the appropriate maximum housing benefit that could be claimed was always subject to determination by a rent officer.The claimants paid £85 in rent per week, including a £5 water charge. The rent officer determined that the water charge was ineligible as rent and that the rent was significantly higher than that which the landlord might reasonably have been expected to obtain. He determined a housing benefit rent allowance of £36.13, as being the relevant “local reference rent” reflecting the general level of rent charged for a similar home in the local area.The claimants applied for judicial review of the rent officer’s decision on the ground that the statutory scheme, as it applied to gypsies and travellers on private sites, was discriminatory in terms of Article 14 of the European Convention on Human Rights, read with Article 1 of the First Protocol 1 concerning the right to respect for property and Article 8 concerning the right to respect for family and private life. They contended that the statutory scheme failed to meet the essential housing needs of gypsies on private sites since gypsy sites had particular site management needs, which resulted in additional costs and therefore a legitimately higher rent, which was not reflected in the housing benefit award.Held: The claim was dismissed.(1) Discrimination under article 14 occurred when, in terms of enjoyment of other Convention rights, there was, directly or indirectly, adversely differential treatment of individuals in analogous or relevantly similar situations, with no objective and reasonable justification for the distinction in treatment; or where individuals in relevantly different situations were, without justification, treated the same.For the purposes of the claimants’ claim, the court was prepared to assume that a difference in treatment on the basis of the nature of the complainant’s landlord was a difference by virtue of “property status” or “other status” in terms of article 14, and that the claimants’ status as the tenants of a private landlord was sufficient to found a claim for discrimination under Article 14.The claimants’ case was best characterised as an allegation that the scheme treated gypsies and travellers on private sites the same as non-gypsies and travellers on such sites: Thlimmenos v Greece (2000) 31 EHRR 411 and Burnip v Birmingham City Council [2012] EWCA Civ 629 applied. The alleged discrimination was indirect, so far as the rules, on their face, were neutral and applied generally across the board but were alleged to have disproportionately prejudicial effects on gypsies and travellers on private sites.The additional management and infrastructure costs incurred by the landlord of a gypsy and traveller site might typically include site management, maintenance, clearance costs, fencing and security, and, often, further services such as education facilities for children, dispute resolution and personal support. However, the vast majority of those costs did not fall within the definition of “eligible rent” because they related not to the costs of accommodation but to the costs of other services and facilities. Those costs could not be taken into account in the rent assessment because they fell outside the housing benefit scheme altogether. Most of the additional costs of a gypsy and traveller caravan site therefore fell outside the scope of the housing benefit scheme. Those extra costs that did fall within the eligibility criteria were insignificant, since they were not only unparticularised and unquantified but were also very modest in amount. That was sufficient to dispose of the claim.(2) In any event, there was objective justification for requiring gypsies and travellers on private sites to bear the additional costs of accommodation that their which their sites incurred, rather than the state bearing such costs through housing benefit. In considering whether a difference in treatment could be justified, the court should have regard to the effects in the individual case before it. The difference in treatment that the claimants complained of was justified given that the additional costs that might properly form part of “eligible rent” were small, uncertain and highly variable; moreover, there was no evidence that the claimants’ site had any such additional costs or, if it did, as to what those costs might be. It was also relevant that the alleged discrimination was not intentional or targeted. So far as gypsies on private sites were treated differently from those on local authority or housing association sites, that difference was justified since private sites were run by commercial landlords, without the constraints of any obligations to the public, and it was appropriate to subject them to some degree of control in respect of the rent that was recoverable through housing benefit. Even if the scheme had the consequence that gypsies and travellers living on private sites might have to make up a shortfall from their other income, that did not mean that they would inevitably be made homeless, nor did it prevent them continuing their traditional way of life; there was no evidence that a single gypsy or traveller had been evicted from a site and made homeless, in the sense of having to pitch by the roadside, because of the aspects of the scheme of which the claimants complained. In those circumstances, the policy reflected in the scheme was not manifestly without reasonable foundation: Humphreys v Commissioners of HM Revenue and Customs [2012] UKSC 18 applied.Marc Willers and Desmond Rutledge (instructed by Keoghs Nicholls Lindsell & Harris, of Preston) appeared for the claimants; James Strachan (instructed by the Treasury Solicitor) appeared for the defendant; the interested party did not appear and was not represented.Sally Dobson, barrister
