Zacchaeus 2000 Trust, R (on the application of) v Secretary of State for Works and Pensions

Regulations may prescribe a statutory benefit by reference to determinations made under a separate order. They need not reproduce the detailed functions of the decision-maker where the enabling legislation permits those functions to be specified by order and parliamentary scrutiny applies.

A rent officer determination is not limited to an expert assessment of prevailing market rents. Functions may include mechanical uprating where necessary to balance housing needs and public expenditure. Under the public sector equality duty, the extent of due regard depends on the circumstances. An equality impact assessment need not quantify effects dependent on uncertain market and behavioural responses, provided the relevant issues were considered.

The claimant sought judicial review of the Rent Officers (Housing Benefit Functions) (Amendment) Order 2012. The challenge alleged that the Order was ultra vires and that it had been made in breach of the public sector equality duty in section 149 of the Equality Act 2010.

Underhill J dismissed the claim in the Administrative Court: [2013] EWHC 233 (Admin). The appeal concerned whether the statutory scheme lawfully permitted local housing allowances to be uprated by reference to the Consumer Price Index, whether a rent officer determination had to involve expert market-rent assessment, and whether the equality impact assessment demonstrated due regard to the effects on disabled people, children and ethnic minorities.

1. Disposition. Sullivan LJ delivered the leading judgment. Maurice Kay LJ and Ryder LJ agreed. The appeal was dismissed.
2. Ultra vires challenge. Section 130A(2) and (3) of the Social Security Contributions and Benefits Act 1992 required regulations to prescribe how the appropriate maximum housing benefit was determined, but expressly permitted that determination to be made by reference to rent officer determinations. The regulations therefore did not have to restate the detailed functions assigned to rent officers under section 122 of the Housing Act 1996. Those functions were specified in the 1997 Order, which was subject to parliamentary scrutiny under section 122(6).
3. Section 130A(7) defined a rent officer determination by reference to functions exercised under section 122. Section 122 did not confine those functions to work requiring the characteristic expertise historically used in fair-rent determinations. The Secretary of State could require rent officers to determine market percentiles and perform CPI-based calculations as part of the statutory balancing exercise between housing needs and protection of public funds. Section 20(2) of the Interpretation Act 1978 meant that references in the 2006 Regulations to the 1997 Order included that Order as amended.
4. Equality duty. The scope of due regard under section 149 of the Equality Act 2010 varied with the circumstances. An equality impact assessment was not a legal drafting exercise. The absence of an express reference to section 149, limited analysis, or failure to quantify effects did not itself establish breach. Quantification was not required where the precise impact depended on rental markets and landlords’ and tenants’ responses.
5. The court could consider the whole factual matrix, including consultation responses or the absence of an issue being raised. The assessment had considered disability and mitigation through discretionary housing payments. There was insufficient evidence that moving schools created a specific equality issue requiring further analysis. The principal effect on larger families arose from the earlier 2010 Order, and no material additional effect from the 2012 Order was demonstrated. A further assessment was therefore unnecessary.

• Court of Appeal (Civil Division): The appeal from the Administrative Court was dismissed. [2013] EWCA Civ 1202.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Underhill J dismissed the judicial review claim challenging the 2012 Order. [2013] EWHC 233 (Admin).