Gypsies not entitled to full housing benefit to cover private rent

From UK Human Rights Blog

Knowles and another, R (on the application of) v Secretary of State for Work and Pensions [2013] EWHC 19 (Admin) - read judgment

The High Court has rejected a claim that Gypsies occupying caravans on private land were discriminated against by legislation which resulted in them not being able to claim full Housing Benefit to cover their rent.

Occupiers of caravans on a site owned by a local housing authority receive a Housing Benefit rent rebate of the whole of the rent charged. But if the caravan is on a private site, then the rent on which HB can be claimed is subject to determination by a rent officer, and that is normally substantially less than the full contractual rent charged. The claimants maintained that this scheme fails to meet the essential housing needs of Gypsies on private sites, who have particular site infrastructure and management needs – which result in additional costs, and hence a legitimately higher rent, not reflected in the HB awarded. They contended that the scheme was therefore discriminatory, and in breach of article 14 of the European Convention on Human Rights, when read with article 1 of the First Protocol 1 (the right to property) and article 8 of the substantive Convention (the right to respect for family and private life).

Legal framework

Convention case law has developed a duty by the state to “facilitate the Gypsy way of life” for ethnic Gypsies and Travellers (Chapman v United Kingdom (2001) EHRR 18, especially at paragraph 96), which way of life requires “special protection” (DH v Czech Republic (2008) 47 EHRR 3, especially at paragraph 182). There was a time when there was nothing in the common law to prevent Gypsies from staying on common land. This situation became untenable and in 1960 legislation closed common land to travellers. In the following decades a series of laws were passed requiring local authorities to make provision for gypsies in their area. The changing nature of living for Gypsies and Travellers meant that they had to overcome their cultural aversion to living on permanent residential sites.

Housing Benefit is a non-contributory, earnings-related benefit, designed to assist those with low incomes with rent that they are liable to pay on the dwelling they occupy as their home. It is not available for non-rent outgoings such as mortgage payments. ”Eligible rent” for HB purposes includes such payments in respect of a pitch for a caravan, but generally excludes charges for other services or facilities (including charges for water) because they are not truly rental costs of accommodation. In contrast to other social security benefits, HB is administered and paid by the relevant local housing authority. Where the housing authority is the landlord, the position is simple because it is also responsible for payment of the rent and therefore will charge a reasonable amount. Where on the other hand the landlord is a private operator the contractual rent is likely to include an element of profit and the inherent restraint of public obligation is not present. As a result, some mechanism of control over reimbursable rent is required, to protect the public purse. Hence the HB payable is capped at a level that is determined by a rent officer. Although the individual assessment process has been replaced by a flat rate system for most dwellings, caravans are still subject to individual assessment of a reasonable rent for the dwelling.

Factual Background

The claimants had occupied land owned by the Council and had therefore received HB which covered the whole of their rent. However they wanted to move because of increasing anti-social behaviour by other residents on the site, and the failure of the Council to provide sufficient security for them. The only suitable private site charged a rent that the rent officer found unreasonably high for the purposes of HB. He determined a rate that was approximately £15 short of the actual rent charged. As a result of having to meet this shortfall the claimants contended that they were suffering hardships which would eventually lead to their eviction. Since, they submitted, they would be unable to remain at the site they would therefore be unable to carry on the traditional way of life they wished to follow.

The arguments

They pursued their case based upon a comparison of their situation with the situation of other Gypsies on publicly owned sites. They argued, in essence, that the scheme, as it relates to Gypsies who rent pitches on privately owned caravan sites, was discriminatory and contrary to article 14 of the Convention taken together with article 8 and/or article 1 of the First Protocol because it fails to make any or any proper allowance for the fact that the costs of providing caravan sites for Gypsies is higher than the costs of providing similar sites for those who are not members of the community. The various bases for this comparison put forward are detailed and complex but suffice it to say here that Hickinbottom J decided to proceed on the assumption that they were arguing that, because of their mode of living, Gypsies and Travellers have increased accommodation costs.This argument is properly based on the case of Thlimmenos v Greece, in that the situations are relevantly and significantly different (because, on the basis of that assumption, Gypsies have greater accommodation needs and hence costs), which (subject of course to justification) imposes a positive obligation on the State to make provision to cater for that difference.

The foundation of the claim was that the landlord of a Gypsy and Traveller site has costs that a landlord of a non-Gypsy and Traveller site does not, and that additional expenditure is properly attributable to accommodation or housing rather than other services or facilities that a landlord may provide; so that those costs may properly be included as part of the “eligible rent” for HB purposes.

The claim was rejected.

The Court’s reasoning

These additional costs largely arise out of the necessity of having a Gypsy Liaison officer on site to carry out various tasks, such as helping to read and fill out forms, and removing rubbish and abandoned vehicles. But the judge pointed out that these costs do not fall within the current definition of “eligible rent” because they do not relate to the costs of accommodation at all, but the costs of other services and facilities. These are therefore not costs which can be taken into account in the rent assessment, because they fall outside the HB scheme altogether:

The HB scheme is not intended to, and does not, cater for such non-housing costs of this type.

Furthermore, according to a report carried out in 2006, the other “substantial if not overwhelming: proportion of the costs arising out of maintaining Gypsy sites are those which

derive from the anti-social behaviour of the caravan tenants themselves. …In its key findings, … the report refers to the incidence of vandalism being a main factor in raising the management costs of Gypsy and Traveller sites

Even if he were to proceed on the assumption that these additional costs were attributable to accommodation, Hickinbottom J found there to be an objective justification for requiring Gypsies on private sites to bear the additional costs of accommodation which their sites incur, rather than the state bearing such costs through HB. He was satisfied that a relatively wide margin of appreciation was applicable in this case, whether article 14 is read with article 1 of the First Protocol and/or article 8:

The provisions of the rental assessment within the HB scheme under review involve decisions and choices which are quintessentially in the field of economic and social policy in which it is well-established that the state generally has a particularly wide margin of appreciation

In any event, even if the consequences of the HB scheme are that Gypsies and Travellers living on private sites may have to make up a shortfall from their other income, that does not mean that they will inevitably be made homeless nor does it prevent them continuing their traditional way of life. Although Hickinbottom J bore “heavily in mind” that Gypsies may have additional accommodation costs because of their properly protected manner of living, “unfortunately, many on HB, whether living in mobile homes or bricks-and-mortar accommodation, live under similar pressure.”