Sier, R (on the application of) v City Of Westminster Housing Review Board

Under regulation 7(1)(b) of the Housing Benefit Regulations 1987, an authority may examine the substance and dominant purpose of an arrangement said to create liability for housing benefit. It may consider concealment, deception and undisclosed connections between landlord and tenant when deciding whether the arrangement is genuine and was created to take advantage of the scheme. Using deception as evidence is distinct from penalising an applicant merely for dishonesty. Delay in providing detailed reasons does not itself justify judicial review where the decision was promptly notified and no prejudice or failure of understanding is shown.

The applicant sought permission to apply for judicial review of a Housing Benefit Review Board decision concerning recoverable overpayments. The Board had decided that the applicant’s Westminster tenancy fell within regulation 7(1)(b) of the Housing Benefit Regulations 1987, because its dominant purpose was to obtain housing benefit. Permission was refused on paper and after an inter partes hearing before Owen J. The applicant renewed the application to the Court of Appeal, challenging the Board’s assessment of the tenancy and the delay in providing detailed reasons.

1. Application refused. Lord Justice Buxton agreed with the decisions of Newman J and Owen J that permission to apply for judicial review should not be granted. Mr Justice Jackson agreed with his judgment and reasons.
2. Under regulation 7(1)(b) of the Housing Benefit Regulations 1987, the Board was entitled to examine whether liability under the tenancy had been created to take advantage of the housing-benefit scheme. The relevant question was not simply whether the tenancy provided accommodation or whether the applicant lacked income. The Board could assess the arrangement in its full context, including the applicant’s connection with the landlord company, the involvement of his close friend, and the concealment of those matters and of his concurrent claim in Cambridge.
3. The Board did not merely penalise the applicant for telling lies. It treated the repeated deceptions as evidence that the tenancy arrangements were not genuine, that those entering into them knew this, and that the arrangement was intended to secure benefit for the company. Its finding that the dominant purpose was to maximise the company’s income through housing benefit was open to it on the evidence.
4. The delay in furnishing detailed reasons did not provide a ground for judicial review. The decision itself had been notified shortly after it was made, and there was no demonstrated misunderstanding or failure of appreciation by the Board.
5. Mr Justice Jackson additionally observed that, even if the matter were remitted, the Board could reach no other conclusion about recovery of the overpayment, so the quashing order sought would serve no useful purpose.

• Court of Appeal (Civil Division): renewed application for permission to apply for judicial review refused.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Owen J refused permission after an inter partes hearing on 5 November 2001. Newman J had previously refused permission on paper.