R(CPAG) v Secretary of State for Work and Pensions – Housing benefit challenge

Last updated: February 13, 2012

In March 2011, CPAG brought a legal challenge of two of the cuts to Housing Benefit for private sector tenants due to come into force in full on 1st April 2011.

With effect from 1 April 2011, the Government has introduced new rules in the Housing Benefit (Amendment) Regulations 2010 and the Rent Officers (Housing Benefit Functions) Amendment Order 2010 which together make the following changes to the housing benefit scheme.

a. They reduce the maximum size of a dwelling which can be paid for by housing benefit to 4 bedrooms.

b. They cap the LHA rates payable for each category of property to the following wherever the property is situated in the country:

  • One bedroom in shared house £250
  • One bed self contained £250
  • Two bed £290
  • Three bed £340
  • Four bed £400

c. They remove the provision which allows a claimant to retain up to £15 where they rent a property below the LHA rate

d. They reduce the LHA rate from the median of rents in each BRMA to the 30th percentile, saving £1.201 billion over 4 years.

e. They allow for an additional room to be included in the size criteria for a non-resident carer of a disabled claimant, costing £60 million over 4 years.

The rules allow for the rate of HB to be protected for up to 9 months for existing claimants.

The issues in this case

CPAG has brought a case by judicial review challenging the first two of these changes; the reduction to 4 bedrooms and the overall cap. The case was heard on 21st and 22nd July and a decision is awaited.

The legal basis for CPAG’s challenge is as follows:

  • The changes are contrary to what parliament intended the fundamental purpose of the housing benefit scheme to be; it was meant to be a national scheme to prevent homelessness. The overall cap would mean that a large area of central London would no longer be accessible to housing benefit claimants in the private rented sector.
  • The Government has failed to have due regard to the general equality duties under the Race Relations Act 1976 and the Sex Discrimination Act 1975. It is likely that black and minority ethnic groups and lone parents will be disproportionately hit by both cuts being challenged.

Counsel in this case were Martin Westgate QC and Jamie Burton, of Doughty Street Chambers

In another very disappointing judgment, on 13th October 2011, Mr Justice Supperstone dismissed CPAG ‘s challenge. He agreed with the government that the purpose of the HB scheme is not to prevent homelessness but is “to assist claimants with rent, while also protecting the public purse”. In the only positive part of his judgment, he accepted that in considering what was “due regard” the Court must consider what was proper and appropriate to the circumstances of the case, and it was not just a question of whether no regard had been had (paragraphs 71-2 applying R(Meany and others) v Harlow DC [2009] EWHC 559 (Admin). But in this case, the Secretary of State had not erred; he was well aware of his equality duties and paid specific regard to them. A link to the judgment is here.

Advisers may find it interesting to contrast the approach taken in the judgment in this case, with that of his honour J McKenna in R (Green) v Gloucestershire County Council and R(Rowe and Hird) v Somerset County Council [2011] EWHC 2689 (Admin) (the Gloucestershire and Somerset libraries case).

We believe that individual claimants who are affected by these changes may have their own arguments they can bring to challenge the lawfulness of these regulations, which the government appears to accept are likely to discriminate on grounds of race and sex.