Campbell & Ors v South Northamptonshire District Council & Anor

Whether an occupation agreement is on a commercial basis for housing-benefit purposes is a factual inquiry. All relevant features of the arrangement must be assessed, including features arising from religious belief or practice. The Convention does not require a tribunal to disregard such facts or convert a non-commercial arrangement into a commercial one.

A refusal of housing benefit for non-commercial arrangements does not, without a material interference with religious manifestation, engage Article 14. The Convention does not generally require the State to subsidise a particular religious lifestyle. An amendment is not invalid for misleading the advisory committee where the materials adequately disclose that it introduces additional excluded categories and may affect communal religious groups.

The appellants were members of the Jesus Fellowship Church who lived communally as Style Three members. They pooled their income, transferred capital to the Church Trust, and occupied Church-owned property under genuine agreements creating legal rent liabilities.

A Social Security Appeal Tribunal held that the agreements were not on a commercial basis. The Social Security and Child Support Commissioner dismissed five appeals from that decision: CH 5125-5130/2002. The appellants appealed to the Court of Appeal on points of law.

They contended that the tribunal had unlawfully taken account of religiously motivated features when assessing commerciality, that the refusal of housing benefit infringed Convention rights, and that the 1998 amendment to the housing-benefit regulations was ultra vires because the Social Security Advisory Committee had been misled.

1. The appeal was dismissed unanimously. Jacob LJ gave the principal judgment. Sir William Aldous agreed. Peter Gibson LJ also agreed and gave concurring reasons.

2. The amended Housing Benefit (General) Regulations 1987 required a factual decision on whether the agreements were on a commercial basis. This was not a discretionary balancing exercise. The tribunal had to consider all relevant facts, including terms attributable to the appellants’ religious practices. To exclude those facts would distort the statutory inquiry. The tribunal was therefore entitled to find the arrangements non-commercial.

3. Jacob LJ further held that the refusal of benefit did not materially interfere with the appellants’ freedom to manifest religion. They could maintain their religious practices and communal lifestyle while having a normal commercial relationship with an unconnected landlord. Article 14 of the European Convention on Human Rights had no independent operation. In any event, a rule preventing public subsidy for non-commercial arrangements was proportionate. The Convention did not impose a positive duty on the State to fund this particular form of religious communal living.

4. The alternative claim under Article 1 of Protocol 1 also failed. Following Carson v Secretary of State for Work and Pensions, [2003] EWCA Civ 797, non-contributory welfare benefits were not thereby possessions protected from amendment or withdrawal. Poirrez v France was confined to its special circumstances, including direct nationality discrimination. Further, the relevant amendment pre-dated the Human Rights Act 1998, so there was no existing entitlement capable of constituting a possession when that Act came into force.

5. The amendment was not ultra vires. Although misleading the Social Security Advisory Committee could invalidate regulations under the Social Security Administration Act 1992, the committee had been told of additional categories and saving provisions. Its papers also expressly identified that communal religious groups could be caught by the non-commercial-arrangements provision. This materially differed from Howker v Secretary of State for Work and Pensions, [2003] ICR 405.

1. Court of Appeal (Civil Division) Dismissed the appellants’ appeal: [2004] EWCA Civ 409.
2. Social Security and Child Support Commissioner Mr Commissioner Jacobs dismissed the five appeals from the tribunal on 20 May 2003: CH 5125-5130/2002.
3. Social Security Appeal Tribunal Held that the appellants’ occupation agreements were not on a commercial basis under the Housing Benefit (General) Regulations 1987.