R (Zacchaeus 2000 Trust) v Secretary of State for Work and Pensions

The Court of Appeal dismissed the appellant's judicial review challenge to the Rent Officers (Housing Benefit Functions) (Amendment) Order 2012. The court held that the Secretary of State acted within the powers conferred by section 122 of the Housing Act 1996 and by section 130A(3) of the Social Security Contributions and Benefits Act 1992, because the Housing Benefit Regulations 2006 properly prescribed the manner of determining the appropriate maximum housing benefit (AMHB) by reference to rent officer determinations and the 1997 Order (as amended) lawfully specified the functions to be carried out by rent officers. The court also rejected the argument that a "rent officer determination" must always be an expert market-based exercise, holding that the order could lawfully require rent officers to perform the mechanical uprating step introduced by the 2012 Order. Finally, the court concluded that the public sector equality duty in section 149 of the Equality Act 2010 had not been breached: the Equality Impact Assessment and related material showed that the Secretary of State had had due regard to the relevant protected groups and to mitigation measures such as discretionary housing payments.

Background and parties. The appellant, Zacchaeus 2000 Trust, brought judicial review proceedings challenging the Rent Officers (Housing Benefit Functions) (Amendment) Order 2012. The respondent was the Secretary of State for Works and Pensions. The appellant challenged the 2012 Order on two grounds: (1) that it was ultra vires the enabling legislation and (2) that it was made in breach of the public sector equality duty under section 149 of the Equality Act 2010.

Procedural posture. The appeal was brought with the permission of Underhill J following his order dismissing the claim in the Administrative Court (see [2013] EWHC 233 (Admin)). The Court of Appeal heard the appeal and dismissed it.

Nature of the claim and relief sought. The appellant sought judicial review quashing the 2012 Order and contended that the statutory scheme required AMHB to be determined by regulations, and that the 2012 Order unlawfully substituted a mechanical CPI uprating for a rent officer's market-based determination. The appellant also contended that the Secretary of State had failed to comply with the public sector equality duty in section 149 of the Equality Act 2010.

Issues framed.

• Whether the 2012 Order was ultra vires because it removed or diluted the requirement for an "expert" rent officer determination and replaced it with a mechanical CPI uprating that was not authorised by the enabling provisions (in particular section 130A of the Social Security Contributions and Benefits Act 1992 and section 122 of the Housing Act 1996).
• Whether the Secretary of State breached the public sector equality duty in section 149 by failing to have due regard to the effect of the measure on protected groups, in particular the disabled, children of school age and ethnic minorities.

Court's reasoning on ultra vires point. The court analysed the statutory framework: section 130A (which requires regulations to prescribe the manner of determining AMHB and permits those regulations to provide that AMHB be ascertained by reference to rent officer determinations), section 122 (which enables the Secretary of State to require rent officers to carry out specified functions by order), the Housing Benefit Regulations 2006 and the Rent Officers (Housing Benefit Functions) Order 1997 with the amendments made by the 2012 Order. The court held that the Regulations legitimately prescribed the manner of determining AMHB by reference to rent officer determinations; by operation of the Interpretation Act the reference to the 1997 Order encompassed subsequent amendments, so the rent officer functions as specified in the 1997 Order (as amended) were part of the prescribed manner. The court rejected the submission that a rent officer determination must always be an "expert" market assessment; the Secretary of State may specify functions for rent officers in connection with Housing Benefit which include mechanical uprating steps so long as they fall within the order under section 122 and the broader statutory purpose (balancing protection of the public purse and avoiding undue deterioration in claimants' housing). The court therefore upheld the judge's rejection of the ultra vires challenge.

Court's reasoning on the equality duty point. The court reviewed the Equality Impact Assessment and the later Impact Assessment. It acknowledged criticisms of the EIA but concluded that the Secretary of State had had due regard to the matters in section 149(1). The court accepted the Administrative Court's findings that the EIA and accompanying material addressed the relevant protected groups (disability, children and ethnicity), that mitigation (including discretionary housing payments) had been considered, and that there was no material before the court demonstrating that the 2012 Order raised new equality issues beyond those already considered. On that basis the section 149 challenge was rejected.

Disposition. The Court of Appeal dismissed the appeal and upheld the Administrative Court's order dismissing the claim for judicial review.

Appeal dismissed. The Court of Appeal held that (1) the 2012 Order was within the statutory powers: the Regulations could prescribe AMHB by reference to rent officer determinations and the 1997 Order (as amended) lawfully specified rent officers' functions under section 122 of the Housing Act 1996; a rent officer's role may lawfully include the mechanical CPI uprating step introduced by the 2012 Order, and (2) the Secretary of State complied with the public sector equality duty in section 149 of the Equality Act 2010 because the relevant impact assessments and material showed that due regard was paid to protected groups and to mitigation measures.

The claim was heard in the Administrative Court (Underhill J) and dismissed (neutral citation [2013] EWHC 233 (Admin)). The appellant obtained permission to appeal to the Court of Appeal, which dismissed the appeal ([2013] EWCA Civ 1202).