Saleem v Secretary Of State For Social Security

For the housing-cost exception, the requirement that a change of dwelling be made solely by reason of the need to provide separate sleeping accommodation requires attention to the operative reason for the move. The condition is met only where that statutory need was the sole or exclusive reason. Incidental benefits from the new home do not prevent qualification. The word “solely” does not make the provision irrational, since the exception can be satisfied in an appropriate case. The exception also does not conflict with the rule selecting the condition most favourable to the claimant. A court cannot entertain an argument that Parliament was misled during parliamentary proceedings, in view of Article 9 of the Bill of Rights 1689.

Mr Saleem challenged the calculation of his income support entitlement. The Adjudication Officer restricted the mortgage interest treated as an eligible housing cost to the amount allowed for his former home, relying on Schedule 3, paragraph 5A of the Income Support (General) Regulations 1987. The Birmingham Social Security Appeal Tribunal upheld that decision.

Social Security Commissioner Mesher allowed a limited appeal and remitted the matter to a fresh tribunal, but found no error in the application of paragraph 5A(9)(b). The issue before the Court of Appeal was whether the Commissioner had misconstrued that provision, and whether it was ultra vires for irrationality or failure to comply with the enabling legislation.

The appeal was dismissed. Mr Justice Cresswell gave the substantive judgment. Lady Justice Hale and Lord Justice Mantell agreed.

1. Construction of paragraph 5A(9)(b). The relevant question was why the claimant changed home. The tribunal had to identify the operative reason for the move. If that reason was not the need to provide separate sleeping accommodation for children of different sexes aged 10 or over, the condition was not satisfied. Here, the tribunal was entitled to find that the main reason was to obtain more adequate and roomy accommodation. The condition therefore failed. Each case turns on its facts. A move made exclusively for the specified sleeping-accommodation need would qualify even if the selected home incidentally provided other benefits.
2. Irrationality. The use of “solely” did not make paragraph 5A(9)(b) incapable of application or irrational. The provision could be satisfied where the specified need was the reason for changing dwelling. There was no conflict with paragraph 5A(6)(b), which provided that, where more than one qualifying condition applied, the condition most favourable to the claimant governed.
3. Enabling legislation and parliamentary proceedings. The court could not entertain an argument that Parliament had been misled, because Article 9 of the Bill of Rights 1689 protected parliamentary speech and proceedings from being questioned in court. In any event, the wording of paragraph 5A(9)(b) reflected the Secretary of State’s stated acceptance of the relevant recommendation under section 174(2) of the Social Security Administration Act 1992.

The order was: appeal dismissed, with a public-funded costs assessment for the appellant.

• Court of Appeal (Civil Division): dismissed the appeal.
• Social Security Commissioners: Commissioner Mesher allowed a limited appeal on whether the housing costs were incurred before 3 May 1994, and remitted the matter to a fresh appeal tribunal. The appellant accepted that point did not arise on the facts. The Commissioner otherwise found no error of law in the application of paragraph 5A of the Income Support (General) Regulations 1987.
• Birmingham Social Security Appeal Tribunal: upheld the Adjudication Officer’s restriction of applicable housing costs under Schedule 3, paragraph 5A of the Income Support (General) Regulations 1987.