Law Report: Housing benefit decision flawed: Regina v Solihull Metropolitan Council Housing Benefits Review Board, ex parte Simpson - Queen's Bench Division (Mr Justice Sedley), 3 December 1993

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The chairman of a housing benefits review board is obliged to give reasons for the board's decision that a claimant's liability for rent had been created to take advantage of the housing benefits scheme.

Mr Justice Sedley quashed the board's refusal to pay the applicant housing benefit.

The applicant, who was unemployed, his partner and her two children, lived in council accommodation. The younger child was quadriplegic. They experienced difficulties with their accommodation but were unable to find other accommodation from housing associations and other rentals.

His partner's father took out a mortgage to purchase a house within reasonable distance of the children's schools and hospital and rented it to them for pounds 565.75 per month. The applicant was refused housing benefit. On appeal the board upheld the refusal. The board's clerk took notes of the evidence and submissions and drafted a decision letter which was approved by the chairman.

The applicant challenged the board's decision on the grounds that its decision did not conform with regulation 83(4) of the Housing Benefit (General) Regulations 1987 in failing to give adequate reasons and that its decision was perverse in finding that regulation 7(b), which excludes liability to make payments for a dwelling where the tenancy was created to take advantage of the housing benefit scheme, applied.

Andrew Wise (Tyndalwoods & Millichip) for the applicant; James Findlay (Council Solicitor) for the board.

MR JUSTICE SEDLEY said that anyone eligible for housing benefit must by definition have entered into an agreement to pay a rent which they could not afford, so that the bare fact of having done so could not itself, save in extreme cases of which this was not one, be evidence of a purpose of attracting housing benefit within regulation 7(1)(b).

The decision letter was a decision within regulation 83. Regulation 83 placed a personal obligation on the presiding member of the board to record the necessary elements of its reasoned decision. The chairman could give the necessary elements of the decision to the clerk in summary form.

But the chairman and the board could not hold a discussion and reach a conclusion in the presence of the clerk and then leave it to the clerk to draw up the decision for the chairman's approval.

A statutory duty on a named decision- maker to give reasons was not simply a bureaucratic chore or an opportunity for lawyers to find fault.

It was a fundamental aspect of good public administration - because it focused the decision-maker's mind on exactly what it was that had to be decided, within what legal framework and according to what relevant material.

On the material before the board, it might reasonably have come to a decision favourable or unfavourable to the applicant. It would have been of critical importance to reason out why it was choosing an adverse interpretation of the facts for the purpose of regulation 7. On this, the decision letter was wholly silent.

Regulation 7 sought to shut out arrangements which would amount to an abuse of the system. Before an authority could conclude that the claimant's liablity for rent had been created to take advantage of the housing benefits scheme, there must be evidential material that that was the case.

It was incumbent on the board to explain what was the material on which it based its adverse conclusion and why it had drawn an adverse rather than benign inference.

Here there was a straightforward explanation of the arrangement for the accommodation. The authority must then consider whether other evidence, such as the rent level, persuaded it that the arrangement was made with the primary purpose of taking advantage of the housing benefit scheme.

The discrepancy between the rent and the fair rent set by the rent officer might or might not be explicable on the basis of the amount of the mortgage.

The one thing which could not be adverse evidence was the bare fact that in order to pay rent the claimant would have to obtain housing benefit.

The board's decision would be quashed and a differently constituted board should hear the case afresh.

Ying Hui Tan, Barrister