JE v SCC (HB)

A claimant’s entitlement to housing benefit is tied to occupation of a particular dwelling. Under Housing Benefit Regulations 2006, a hospital patient who intends to return home is treated as occupying it for no more than 52 weeks.

The unincorporated UN disability convention cannot alter clear domestic legislation or create a domestic judicial enforcement mechanism. Article 14 of the European Convention requires unjustified discrimination in the enjoyment of a Convention right. Although Article 8 was engaged and the rules could indirectly discriminate against mentally ill patients, there was no Article 14 breach where the claimant remained able to return home. The appeal was dismissed.

The claimant had occupied a specially adapted bungalow and received housing benefit until she was admitted to hospital on 11 October 2013. She remained a hospital patient, wished to return home, and the bungalow continued to be available for her return.

The local authority ended benefit from 13 October 2014 under the 52-week temporary-absence limit in regulation 7(17) of the Housing Benefit Regulations 2006. The First-tier Tribunal confirmed that decision on 28 April 2015. It considered that the provisions indirectly discriminated against mentally ill patients but regarded itself as bound by Court of Appeal authority that the discrimination was justified.

On appeal, the claimant relied on the UN Convention on the Rights of Persons with Disabilities and Articles 8 and 14 of the European Convention on Human Rights. The central issue was whether those instruments affected the otherwise clear application of the 52-week rule.

1. Appeal dismissed. Judge Levenson confirmed the First-tier Tribunal’s decision that the claimant was not entitled to housing benefit from 13 October 2014.

2. On the ordinary operation of regulation 7, the decision was correct. Housing benefit concerns liability for a particular dwelling occupied as the claimant’s home. A hospital patient who intends to return is treated as occupying that dwelling only during an absence not exceeding 52 weeks under regulations 7(16) and 7(17) of the Housing Benefit Regulations 2006.

3. The UN Convention on the Rights of Persons with Disabilities was not directly incorporated into domestic law. It could assist only in resolving ambiguity or informing a discretion. The relevant housing-benefit provisions contained neither. Article 1(1) of the Optional Protocol provided an international communications procedure, not a domestic court enforcement mechanism.

4. Article 8 of the European Convention was engaged because the case concerned the claimant’s home. Article 14 is not freestanding. A difference in treatment is discriminatory only if it lacks an objective and reasonable justification, assessed by legitimate aim and proportionality. The court accepted that the regulations could indirectly discriminate against mentally ill patients, consistently with Obrey, Snodgrass and Shadforth v The Secretary of State for Work and Pensions and The Equality and Human Rights Commission [2013] EWCA Civ 1584.

5. However, ending this claimant’s benefit did not fail to secure Convention rights without discrimination. At the relevant date, and still at the hearing, she could return to the bungalow if able to leave hospital. Her practical difficulty was her inability to leave hospital, rather than the loss of housing benefit. The case therefore did not warrant revisiting the Court of Appeal’s approach in Obrey.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the claimant’s appeal and confirmed the First-tier Tribunal’s decision.
• First-tier Tribunal (Social Entitlement Chamber), Southampton: on 28 April 2015, confirmed the local authority’s decision that housing benefit ceased from 13 October 2014.
• Local authority: on 9 October 2014, decided that the claimant was not entitled to housing benefit from 13 October 2014 under regulation 7(17) of the Housing Benefit Regulations 2006.