R (Child Poverty Action Group) v Secretary of State for Work and Pensions

This judicial review challenged two elements of the 2011 Local Housing Allowance reforms: (i) national maximum weekly caps on LHA (introduced by Article 2(3)(b)(iii) of the Rent Officers (Housing Benefit Functions) Amendment Order 2010 made under s.122 Housing Act 1996) as ultra vires; and (ii) reduction of the largest dwelling category for LHA from five to four bedrooms (by Regulation 2(6)(a) of the Housing Benefit (Amendment) Regulations 2010 under ss.175 and 130A SSCBA) for failure to comply with general equality duties under the Race Relations Act 1976 and the Sex Discrimination Act 1975.

The court held that the statutory purpose of the housing benefit scheme is to assist with rent while protecting the public purse and permitting a balance between claimants and taxpayers. The primary legislation and delegated powers permitted the Secretary of State to introduce national caps alongside area-based LHA calculations. The claim that caps were ultra vires therefore failed. The court further held that the Department for Work & Pensions had fulfilled its general equality duties: it conducted and considered Equality Impact Assessments, relied on available administrative data, considered SSAC advice and mitigation measures (including Discretionary Housing Payments), and therefore had paid due regard to race and sex equality duties. The equality grounds were dismissed.

Background and parties: The claimant, Child Poverty Action Group, sought judicial review of two 2011 housing benefit reforms introduced by the Secretary of State for Work & Pensions. The measures at issue were national weekly caps on Local Housing Allowance (LHA) rates and reduction of the largest LHA dwelling category from five to four bedrooms. The claim advanced statutory construction and equality law grounds. Permission was granted to add an equality challenge under the Race Relations Act in relation to the caps.

Nature of the claim and relief sought: The claimant sought declarations and relief that the caps were ultra vires the Housing Act 1996 and that the Secretary of State breached general equality duties under the Race Relations Act 1976 and the Sex Discrimination Act 1975 in implementing the reduction in bedroom entitlement and the caps.

Issues for decision: (i) whether the introduction of national maximum weekly caps on LHA was ultra vires the powers under the Housing Act 1996 and the SSCBA 1992 read together with relevant delegated legislation; (ii) whether the Secretary of State failed to have due regard to equality duties under RRA 1976 and SDA 1975 in relation to the reduction from five to four bedrooms and in relation to the caps.

Court’s reasoning:

• The court analysed the statutory scheme (SSCBA ss.123, 130, 130A and s.175; Housing Act s.122; SSAA provisions; and the Housing Benefit Regulations and Rent Officers Order). It concluded the statutory purpose is to assist with rent while protecting public funds by permitting a balance between claimant needs and taxpayer interests. There is no express requirement in primary legislation that LHA must be set in a way that entirely prevents any claimant from being priced out of a particular area.
• The court found that the Secretary of State’s wide powers under s.122 Housing Act (and the regulation-making powers in the SSCBA) permitted the introduction of caps in addition to area-based LHA calculations and that retaining BRMAs and area determinations did not preclude capping where Parliament and the delegated powers allowed it.
• On equality duties, the court reviewed the legislative process: two Equality Impact Assessments (July and November 2010), consultation with the Social Security Advisory Committee, the Government response, and mitigation measures (including increased Discretionary Housing Payments and transitional protection). The court examined criticisms about available data (Family Resources Survey v Annual Population Survey v administrative SHBE data) and accepted DWP evidence that the EIAs relied on the most appropriate available data and that the Secretary of State had paid due regard to equality obligations. The court applied the standard in the authorities that the duty is to have due regard, not to achieve results, and that weight to countervailing factors is for the decision-maker unless irrational.

Conclusion: The introduction of caps was not ultra vires and there was no breach of the general equality duties in respect of either the reduction from five to four bedrooms or the caps. The claim therefore failed.

The claim is dismissed. The court held that (i) the introduction of national maximum weekly caps on Local Housing Allowance was within the Secretary of State’s powers under the Housing Act 1996 and the SSCBA 1992 and therefore not ultra vires; and (ii) the Secretary of State complied with his general equality duties under the Race Relations Act 1976 and the Sex Discrimination Act 1975 in relation to both the reduction from five to four bedrooms and the introduction of caps, having carried out and relied on Equality Impact Assessments, considered SSAC advice and put in place mitigation measures.