Cotton & Ors, R (on the Application of) v Secretary of State for Work and Pensions & Ors

Article 8 may be engaged where welfare-benefit changes compel a family to move from its home and materially affect family life. However, such consequences do not automatically amount to an interference with article 8 rights or impose a positive obligation to provide housing support. The threshold is exceptionally high, particularly in economic and social policy.

Where a move would not itself cross that threshold, a local authority must nevertheless consider discretionary housing payments if, in an individual case, withdrawal of support threatens to infringe Convention rights. Housing-benefit rules allowing entitlement for a child’s bedroom to be attributed to only one carer were not irrational and were not manifestly without reasonable foundation.

The claimants were separated or divorced parents whose children lived with each parent under shared-care arrangements. The Housing Benefit (Amendment) Regulations 2012 treated the children’s bedrooms in the claimants’ social-sector homes as unoccupied because child benefit was paid to the other parent. Their housing benefit was consequently reduced by 14% or 25%.

Discretionary housing payments had so far compensated for the reductions, although their continuation was uncertain. The claimants sought judicial review on grounds under articles 8 and 14 of the Convention and irrationality. The central issues were whether the Regulations engaged or interfered with family life, whether they were justified, and whether the statutory scheme was irrational.

1. Article 8 engaged. If withdrawal of discretionary housing payments compelled the claimants to move to smaller accommodation where their children could no longer live regularly, the complaint fell within the ambit of article 8. The reasoning of the Court of Appeal in R (SG (previously JS)) v Secretary of State for Work and Pensions [2014] EWCA Civ 156 applied equally to this case.
2. No interference established. The claimants had suffered no net loss because discretionary housing payments had made good the reductions. A future move would not, without more, constitute an interference with article 8 family-life rights. The Convention imposed positive welfare-support obligations only in truly exceptional circumstances. The claimants would retain relationships with their children, avoid homelessness and destitution, and continue to see them. Further evidence of particular and serious hardship could produce a different result in an individual case.
3. Justification. Although the issue did not strictly arise, the Regulations were not manifestly without reasonable foundation. Relevant considerations included parliamentary consideration of shared care, the difficulty of defining an exemption, the availability of discretionary housing payments for particular hardship, and the rational policy of providing housing benefit for a child’s bedroom to one carer only. The approach in R (MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13 was relevant but not necessarily determinative because the guidance and assurance concerning discretionary payments differed.
4. Article 14 and irrationality. Parents with secondary responsibility probably constituted an “other status” under article 14, but the discrimination claim required no separate determination because justification raised the same issues as article 8. The irrationality challenge also failed.
5. Disposition. The claim for judicial review was dismissed.