Tucker v Secretary Of State For Social Security

The Secretary of State may make anti-abuse housing-benefit regulations identifying relationships in which a claimed rent liability is presumed not to qualify for benefit. Such a rule is not irrational merely because it produces hardship in individual cases. Nor is it disproportionate where it pursues the legitimate aim of preventing abuse and leaves affected claimants able to obtain benefit for accommodation with another landlord. A reverse burden of proof or transitional protection is not legally required in every case. The principle of legality remains a rule of construction, but general statutory language is unlikely to authorise interference with fundamental rights if such interference is established.

The appellant had occupied a house owned by the father of her child and had received housing benefit for several years. Amendments to the Housing Benefit (General) Regulations 1987 provided that a claimant responsible for a child of the landlord was to be treated as not liable for rent.

Maurice Kay J rejected challenges based on irrationality, proportionality, Articles 8 and 14 of the Convention, the principle of legality, and alleged conflict with the Child Support Acts 1991 and 1995. The appellant appealed. The central issues were whether the amended regulation was irrational or disproportionate, whether transitional protection or a reverse burden of proof was required, and whether the regulation conflicted with primary legislation.

1. Appeal dismissed. Regulation 7(1)(d) of the Housing Benefit (General) Regulations 1987 was valid.
2. The Secretary of State was entitled to address suspected abuse by identifying specified relationships in which a rent liability would not qualify for housing benefit. The court should proceed cautiously when reviewing policy based on political, social or economic considerations outside its normal competence. Hardship in individual cases did not establish Wednesbury irrationality.
3. The absence of a reverse burden of proof provision did not make the regulation irrational or disproportionate. The policy avoided difficult factual inquiries into whether an alleged tenancy was genuine, while claimants remained free to seek housing benefit for accommodation with another landlord.
4. The absence of transitional protection for existing recipients did not invalidate the regulation. The Secretary of State could consider the unfairness of preserving an advantage for existing claimants when the same arrangement would not qualify for new applicants, particularly where the scale of prior abuse was difficult to identify.
5. Assuming that Articles 8 and 14 were engaged, the regulation pursued the legitimate aim of preventing abuse and bore a reasonable relationship of proportionality to that aim. It therefore fell within the Secretary of State’s discretionary area of judgment.
6. The principle of legality is a rule of construction. If a fundamental right had been infringed, general statutory language would be unlikely to authorise that infringement by subordinate legislation. Since no fundamental right had been infringed, the principle did not assist the appellant.
7. The regulation did not defeat or affect rights under the Child Support Acts 1991 and 1995. It regulated entitlement to housing benefit and did not require the other parent to maintain the tenant.

• Court of Appeal (Civil Division): appeal from Maurice Kay J dismissed on 8 November 2001.
• Queen’s Bench Division, Administrative Court and Divisional Court: Maurice Kay J rejected the challenge in a judgment dated 6 April 2001.