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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Hook, R (on the application of) v Secretary of State for Work and Pensions [2007] EWHC 1705 (Admin) (03 July 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/1705.html Cite as: [2007] EWHC 1705 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		3 July 2007

1. DEPUTY JUDGE: This is an application for judicial review of a decision of a Social Security Commissioner, Mr Commissioner Jacob, given on 29 November 2006. Permission to review that decision was granted by Forbes J on 30 April 2007. The decision of Mr Commissioner Jacob, which is to be reviewed, is a decision when he refused permission to appeal to the Commissioners from a decision of the Ashford Appeal Tribunal, dated 6 February 2006.
2. The Appeal Tribunal itself was concerned with two linked appeals against the refusal of income support on the one hand and housing and council tax benefit on the other, following a notification of a change of circumstance made by the claimant, Mr Hook, on or about 14 March 2005. The change of circumstance was that he had now been joined by a partner, who was deemed under the regulations to be a member of his family, but who it was found in the appeal process had disposed of capital that was available to her, thus disqualifying her and the claimant from support whilst the notional capital remained, in accordance with the regulations.
3. The Appeal Tribunal and Mr Commissioner Jacob both heard full argument on the issues, applying the regulations to the primary facts of this case. There was oral argument before the Tribunal. There was a written application for permission to appeal to the Tribunal that was rejected, and a written application to the Commissioner. He directed an oral hearing. There was an oral hearing in which the claimant was represented by counsel, and there was then a request for supplementary written submissions. Overall a substantial process of examination of these questions has been undertaken. This hearing has therefore constituted the third tier of appeal or review for error of law in respect of this social security decision. If the relief claimed were granted, the Commissioner would be obliged to re-hear the claim and there would then be a right of appeal to the Court of Appeal on a point of law.
4. It is clear from the authorities governing the approach that the court should take in this field that judicial review is available to review a decision of the Commissioner to refuse permission to appeal from the Appeal Tribunal. However, it is also clear that something more than a merely debateable error of law in the Commissioner's decision is needed for relief to be granted. In the case of Connolly [1986] 1 All ER 998, Slade LJ said at page 1007 between letters H and I:

"In a case where a commissioner has refused leave to appeal without giving reasons and an applicant seeks to challenge such refusal by way of judicial review, the onus must, in my judgment, lie on the applicant to show either (a) that the reasons which in fact caused the commissioner to refuse leave were improper or insufficient, or (b) that there were no good grounds upon which such leave could have been refused in the proper exercise of the commissioner's discretion."

5. This of course is a case where very substantial reasons have been given by the Commissioner.
6. I have been referred to the subsequent decision of Neuberger LJ in R(Sinclair Gardens) v The Lands Tribunal [2005] EWCA Civ 1305; [2006] 3 All ER 650, where the test for the grant of relief is where there is an error "that is sufficiently grave to justify the case being treated as exceptional". The reasons for that approach are set out at paragraphs 30, 40, 41 and 44 of that judgment, from which I have drawn some assistance. It is not necessary for me to resolve precisely the test to be applied in judicial review from a Social Security Commissioner, and I recognise that, in many cases, claimants may not be legally represented and points of importance may not have been developed in the way that would be desirable. The inquiry is inquisitorial, and the Tribunal and the Commissioner are both able to play an active role in the elucidation of relevant facts and legal issues. However, having regard to the fact that this is a review of a specialist expert Tribunal in the field of detailed social security regulation concerning entitlement to public funds, it is common ground that the test to be applied to avoid unnecessary expense and to achieve the desirable aim of finality in this context is that a very substantial point of law is required.
7. I am particularly conscious of the fact that, during the past two years, Mr Hook's housing benefit has not been paid and rent arrears are accruing, creating no doubt significant problems for the Housing Association who are his landlords of his home of many years' duration.
8. In this application, it is accepted that the only real issue upon which it is sought to quash the Commissioner's refusal of leave is his consideration of human rights questions and the inter-related application of the Human Rights Act 1998, and the statutory regime that was being considered below. In particular, I must consider whether he has given sufficient reasons to indicate that he has properly directed himself and properly addressed the issue of justification, and the proportionality with any interference with the right to respect for home, private and family life granted by Article 8 of the European Convention on Human Rights and incorporated into domestic law by the Human Rights Act 1998.
9. The amended claim form indicates three issues: first, misdirection on the question of justification; second, misdirection on the ability to give relief where a violation of human rights is found; and third, insufficient reasons for deciding that the legislation and the regulations as applied to this claimant was proportionate; and in particular, the question of whether there were less intrusive means available to the public authority. I stress, however, that that is how the case is now put. As we shall see in the course of this judgment, matters have developed some way, and that was not the original case that was considered below.
10. It is necessary to supplement the brief facts already given to set the context for the issues in this case. Mr Hook, the claimant, is and has been for many years severely disabled through injury sustained at work. It appears that he is unable to work, walk without assistance and needs assistance to wash and clothe himself. He has for many years been in receipt of a disability living allowance at the middle rate, and the higher rate of the mobility allowance of the disability living allowance, plus income support, housing benefit, council tax benefit, child tax credit, and child benefit.
11. The arrangements regarding his domestic household and those who care for him have changed over the years. His former wife and children have played significant roles in attending upon him. However, this case is concerned with the arrival into the household of the claimant of his present partner (who I shall refer to as Ms H). She and the claimant appear to have struck up a friendship in about the autumn of 2003, and discussion arose as to whether she should move into the house to live with him as his partner, but also to take some of the responsibility for the care of the claimant from his daughters.
12. In December 2003, the claimant telephoned his local social security office, and had been told that if Ms H moved in, then that would have an effect upon the claimant's income support and benefits. The reason for that is that Ms H was the beneficiary of the proceeds of her former matrimonial home and there was apparently capital available to her in 2003 or early 2004 of something in the order of £150,000.
13. Ms H did not move in with the claimant until about March 2005. In the intervening period, the Tribunal found that the capital represented by the sale of her former matrimonial home had been dissipated: partly in clearing debts, partly in living expenses for her own, but also generous distributions of £30,000 to her own daughter to help the daughter pay off a student loan, and some £17,500 taking a number of family members for an extended holiday to the Caribbean, where Ms H had family ties and where she had originated.
14. The Tribunal therefore concluded that there was some £47,500 which had been dissipated, and it concluded that it had been dissipated in the knowledge that Ms H, if she moved in with the claimant, would be able to claim benefits again. There was a nexus between the dissipation and the future intention to claim income support and other social security benefits.
15. The application of the scheme of regulation was therefore the subject of an appeal to the Appeal Tribunal once the claimant had informed the social security authorities of the change of circumstances and they had decided to apply the regulations, to which I shall now turn, that had the effect of disentitling the claimant to income support and the housing benefit and council tax support to which I have already referred.
16. The legislative scheme can be summarised as follows. Section 134(1) of the Social Security Contribution and Benefits Act 1992 provides that claimants are not entitled to income relating benefits if their capital exceeds a prescribed sum. Section 136(1) provides that the income and capital of family members is to be treated as being that of the claimant except in prescribed circumstances; that is to say, where a person claiming an income related benefit is a member of the family, the income and capital of any member of that family shall be treated as the income and capital of that person. "Family" is defined in section 137 as including a couple, and a couple as including a man and a wife, living together as man and wife, again save in prescribed circumstances.
17. Section 136(5)(a) provides that regulations can be made on matters relevant to capital, and those regulations may include circumstances where a person is treated as possessing capital or income which he does not possess. The regulations treated as being made under the principal statute have been in existence for some good many years. The court was not informed precisely when they first emerged. It is sufficient to note that Regulation 51 of the Income Support (General) Regulations of 1987 states:

"A claimant shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to income support or increasing the amount of that benefit."

18. I pause to note that that was the regulation that was applied in the case of Ms H after she had become, as she clearly had, a member of the family of the claimant by cohabiting with him in his home.
19. "Claimant" is defined in the regulations in two ways. By Regulation 2(1) it means a person claiming income support. That of course is the claimant personally; secondly, by Regulation 23(1), it is said that, subject to paragraph (4):

"the income and capital of a claimant's partner which by virtue of section 136(1) of the Contribution and Benefits Act is to be treated as income and capital of the claimant, shall be calculated in accordance with the following provisions of this Part in like manner as for the claimant; and any reference to the 'claimant' shall, except where the context otherwise requires, be construed, for the purposes of this Part as if it were a reference to his partner..."

20. On the findings of fact of the Appeal Tribunal, which are not challenged, the claimant was held to be disentitled by Regulation 51, taken with Regulation 23, because he included in his claim his new partner, Ms H, and because, in any event, since Ms H was to be treated as a family member, her resources, including the deemed resources as provided under Regulation 51, were to be taken into account until such time as the deemed resources had been run down by the period of disqualification of benefit. The end result was that Mr Hook, the claimant, has not received since March 2005 or thereabouts his income related benefits. He will not do so if the present situation continues where Ms H continues to reside with him as his family member and partner, until such time as the deemed resources of some £47,500 have been run down against the weekly accrual of benefit entitlement -- something that will take some years to happen. In the meantime, as I have indicated, rent arrears are accruing, as well no doubt as pressure on the monies available by way of income support to the families.
21. Now, before the Tribunal, the argument was founded squarely upon the proper meaning of the regulations, and the essential submission was that it would be unfair and therefore impermissible to construe the regulations as applying to Mr Hook, who had himself not dissipated any capital and had not been a party to the dissipation of capital by Ms H, with the consequence that I have just indicated. No submission at all was made referring to human rights, and, in my judgment, the Tribunal was perfectly entitled to conclude that the policy of the regulations was such that it manifestly included dissipations by a family member, even before the period of cohabitation as a family member had occurred, otherwise it would be easy to evade the policy considerations of preventing artificial reliance or dependence upon state benefits and the anti-avoidance principle implicit in the scheme as a whole.
22. Before the Commissioner, it appears that that again was very much the submission at the forefront of the arguments and the submission that he dealt with first in the first two points of a lengthy reasoned determination, examining whether this was a case for permission to appeal. It is not suggested before this court that either the Tribunal or the Commissioner were in fact wrong in their interpretation of the regulations to this case, and it must therefore follow that the rule-maker and Parliament in promoting the scheme through primary legislation contemplated and intended that there would be cases of partners not party to the dissipation who would suffer loss of benefit because of cohabitation with a family member who had previously dissipated.
23. The present point that now lies before this court therefore has an unsatisfactory history. There indeed may well be room for argument whether the Tribunal was required to address human rights at all since it had not been asked to do so, applying section 12(8) of the Social Security Act 1998, which should set the parameters for what the Commissioner considers ought to be the points that the Tribunal should deal with arising from the case from which leave to appeal should be granted. It may well have been open to the Commissioner to take a summary view to say that, since the claim was not raised below before the Tribunal by way of human rights being violated, then he was not required to grant leave to appeal to consider the point de novo. In the particular case, the court notes that section 7 of the Human Rights Act 1998 indicates that a person who claims to be a victim of a violation of his human rights may raise the matter, either by way of positive claim or by way of defence and proceedings. But the point is that someone has to claim to be a victim in order to engage the process of human rights determination and consideration.
24. I accept of course that obvious errors of law on the face of a Tribunal determination can be the basis of the grant of permission to appeal by the Commissioner, or indeed if there was such an obvious error in the Commissioner's decision, could be the basis for relief by way of judicial review before this court. However, it would be difficult to suggest that there was an obvious error in the Tribunal's decision in not engaging human rights questions, which of course had not been raised, given the complete absence of any Strasbourg case law suggesting that denial of benefit for income support or housing has violated Article 8(2) in any case which the Strasbourg Court has considered, or indeed in any case that the UK courts have considered.
25. A valuable review of the authorities is contained in the decision of the Court of Appeal in Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406; [2004] 2 WLR 603. I have drawn assistance from the reviews of the case law at paragraph 19 to 20 and 25 to 27, and will return to that case in one further moment.
26. However, the Commissioner did not take the view, when human rights were raised before him in the written grounds upon which permission to appeal from the Tribunal was sought, that he could dismiss that on that basis; nor did the respondent to this appeal (who here as before the Commissioner appears through Ms Busch) invite the Commissioner or this court to take that approach. Therefore, human rights was an issue which he had to pay regard to in his determination, but it seems it was the third of the three issues and not the principal issue with which he was concerned.
27. Secondly, before the Commissioner very little authority by way of human rights material was placed before them and there was no detailed exploration at the invitation of the claimant, or indeed the respondent, of the way in which human rights might become involved in a social security issue. Accordingly, the Commissioner assumed, without deciding, that Article 8(1) did apply in this case and that the benefits decision were an interference with family life, and went on to consider whether the interference could be justified by application of the terms of Article 8(2). Before this court, the respondents make clear they do not concede or accept that Article 8(1) is engaged or that there is an interference or a failure to respect family life, private life or a home, and if this application were to succeed and the matter were remitted to the Commissioner, they indicate that they would seek to argue the contrary.
28. Again, before this court, it is common ground that I should proceed as before the Commissioner that human rights were employed, but the fact that these matters have not been fully explored has a significant impact upon the points which are now taken, which substantially complain of the reasoning process of the Commissioner in respect of human rights. Indeed, the Commissioner might well have concluded from the written grounds that a freestanding human rights point was somewhat low in the submissions made before him, and the written grounds state:

"It is accepted that refusal of income support or housing benefit cannot breach Article 8 on its own because there is no positive obligation on the Government to pay social security benefit. However, deductions made from benefits which the state has decided the claimant is entitled to can breach Article 8 [citing the case of Logan v United Kingdom]."

29. Further, the human rights point was described in the written grounds as follows:

"There is a lack of respect for Mr Hook's family life because the only way that he can avoid losing his home and claiming access to income support is to sever his ties with his partner. That is entirely unreasonable, particularly bearing in mind that his partner has not done anything dishonest, and in addition provides Mr Hook with personal care."

30. The written submissions that were provided by counsel who appeared on behalf of the claimant before the Commissioner, albeit instructed somewhat late in the day and without therefore the opportunity to have drafted a skeleton argument, also stress that the attack was upon the application of the rules per se. Thus paragraph 12 of the written submissions supplied to the Commissioner after the oral hearing states:

"It is the appellant's case that any provision which treats the claimant as having the partner's notional capital where the deprivation of capital took place before they were a couple would show a lack of respect for the claimant's private life in that although he was an autonomous individual, he is treated as owning notional capital, and as a result is treated as being ineligible for income support and housing benefit solely as the result of retrospective account being taken of the actions of a person who, at the time, was not living with him as his partner and with whom they had no legally relevant connection, for benefits purposes."

31. In my judgment, it is therefore important to see precisely what the Commissioner was being asked to grapple with before criticising his judgment refusing grant of leave to appeal from the Tribunal on human rights grounds. In the light of this history, I do not decide the Article 8(1) question itself as to whether the social security decisions themselves amount to a lack of respect for family life or respect for home or interference with family life. However, I consider that it is highly arguable that they do in the combination of factors that were in play in this case. First, by loss of the housing benefit, Mr Hook was unable to pay the rent on his housing provided by the Housing Association which he had occupied as his home for many years. Having regard to his underlying condition as a disabled person, he was dependent on state benefits for being able to pay for the rent on his home.
32. Secondly, there is of course the feature that was pressed below, that Ms H is his partner and cohabitation is an important and intimate aspect of family life. But thirdly, and in my judgment of some significance in this particular case, is the fact that his disability means not only that he cannot find work for himself, but that he also requires care during the day and during the night, which is provided by family members and in particular his partner. It is true that in the grounds of appeal it is mentioned that his partner is a carer, but very little else is made of that proposition, and the matter is not developed either by evidence demonstrating the degree of reliance upon his partner, or by citation of authority as to how human rights might impact upon Mr Hook, and what was not done in this particular case was to link Article 8 with Article 14 in suggesting that the application of rules of general import to those whose partners have previously dissipated capital worked a disproportionate impact upon disabled people, who are dependent upon their partners for support and housing.
33. Despite the complete absence of authority either in Strasbourg or in the United Kingdom as to when Article 8 would be violated by a decision not to award benefits, it cannot be said that, in those circumstances, a case could never arise upon this question.
34. Returning to the judgment in Anufrijeva, the court noted at paragraph 29 of its decision:

"As long ago as 1982, in an article on 'The Protection of Privacy, Family Life and Other Rights under Art 8 of the European Convention on Human Rights' (1982) 2 YEL 191, at p 199, Mr Peter Duffy wrote, in relation to the positive obligations inherent in Art 8:

'The case-law has only just begun to grapple with this issue. In general, one would expect a somewhat cautious approach from the Commission and the court. It seems nevertheless very probable that some welfare benefits come within the scope of Art 8 and possible that minimum welfare provision may now constitute a positive obligation inherent in the effective respect for private and family life by the States.'

30. It is noteworthy that, so far as we are aware, the Strasbourg court has not yet given a decision that a State has infringed Art 3 as a result of failure to provide welfare support, let alone that Art 8 has been infringed in such circumstances. The court has, however, recognised the possibility of such an infringement. In Marzari v Italy (1999) 28 EHRR CD175 the applicant suffered from a rare disease that, at times, constrained him to use a wheelchair. He complained that his Art 8 rights had been infringed in that he had been evicted and that the alternative accommodation offered to him was not suitable, having regard to his special needs. The court observed at p 179:

'The court must first examine whether the applicant's rights under Art 8 were violated on account of the decision of the authorities to evict him despite his medical condition. It further has to examine whether the applicant's rights were violated on account of the authorities' alleged failure to provide him with adequate accommodation. The court considers that, although Art 8 does not guarantee the right to have one's housing problem solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under Art 8 of the Convention because of the impact of such refusal on the private life of the individual. The court recalls in this respect that, while the essential object of Art 8 is to protect the individual against arbitrary interference by public authorities, this provision does not merely compel the State to abstain from such interference: in addition, to this negative undertaking, there may be positive obligations inherent in effective respect for private life. A State has obligations of this type where there is a direct and immediate link between the measures sought by the applicant and the latter's private life.'"

35. In my judgment, it is plain, particularly having regard to the decision on admissibility in Marzari v Italy, that circumstances could arise where positive obligations are engaged to require the state to provide certainly a disabled person with housing, and to abstain from interference in important aspects of his private and family life. However, as in all these matters, the issues are fact-specific and depend upon careful factual evaluation of the impact of the decision in question on the individual, and cannot be dealt with in schematic ways by references to the Human Rights Act in written grounds without developing the argument as to how it is suggested that human rights are engaged or infringed in the particular case, or at least how the approach to determination of that question should be developed.
36. It is with that background that I turn to the Commissioner's decision on the question. As I have indicated, he gives a very substantial decision of some 46 paragraphs, explaining why he has refused the claimant leave to appeal after the extensive hearing that I have described. Between paragraphs 22 and 35 he rejects the arguments based upon construction of the regulations and policy considerations, having regard to the impact of the regulations that the claimant was developing, without reference to human rights jurisprudence. He rejects those submissions and concluded that it was:

"in principle neither oppressive nor irrational to take account of disposals of capital made by a person before becoming the claimant's partner. Quite the reverse. Both in aggregating the capital of the members of a family and in taking account of notional capital, the legislation fulfils an anti-avoidance function. If notional capital were not aggregated, a future partner could dispose of capital before coming to live with the claimant or couples could separate in order to dispose of capital before reuniting. It is a legitimate function of legislation to prevent an obvious means of avoidance. And the legislation does so in a proportionate way. The notional capital rule will only apply to a future partner when there has been conduct that is related to future entitlement to benefit either for the person alone or as a member of a family. That will limit the circumstances in which the rule applies and restrict it to those cases in which a course of conduct has been directed at future benefit entitlement."

37. That is an observation made in the context of the non-human rights claim, but clearly equally relevant to the purpose of the legislation and its legitimate aim, and, as I have indicated, no complaint is made of that conclusion as a matter of purely domestic law and policy. At paragraph 37 of his determination, the Commissioner assumes that Article 8 is engaged, as I have indicated, and recognises that:

"So long as his relationship with Ms H continues, he [that is Mr Hook] is unable to pay his rent and may lose his home. And he can only avoid this by ending the family life which Ms H and he have established together."

So he was aware of the impact of the decision.

38. I then turn to paragraph 38, and it is this paragraph upon which Mr Knafler, appearing in this court for the claimant, has directed his attack. The Commissioner states:

"38. However, the interference is authorised by article 8(2). The notional capital rule is contained in legislation. It is, therefore, in accordance with law. It is part of the law governing the social security benefits, which are part of the welfare state. A welfare state is an integral part of the democratic societies that are parties to the European Convention on Human Rights and Fundamental Freedoms. Expenditure on income-related benefits is one of the major items in the national budget. The combined cost of income support, housing benefit and council tax benefit alone was more than £27,000,000,000 in the last financial year. It is necessary in the interests of the economic well-being of the country to ensure that the large but limited funds available for public financial support are targeted at those most in need. That includes, as I have said, a legitimate anti-avoidance function."

39. That is all the Commissioner said by way of justification of the interference or the assumed interference with Article 8(1) rights in this case. Mr Knafler complains that he has merely indicated that the legislative purpose was for a good reason, that there was an interference in accordance with the law, but he has not asked himself the question: is the interference proportionate having regard to its impact upon this individual?
40. As against that, the respondent submits that he does direct himself to all three limbs of the Article 8(2) test, and he has in terms come to his own conclusion that the decision is necessary in the interests of the economic well-being of the country. Quite clearly, those considerations are wholly legitimate in terms of the purpose of the regulatory scheme as a whole, and the fact that the regulatory scheme as a whole was laid down in law, and indeed it would appear that Mr Hook was advised if he did move in with his partner he stood to lose his income support because of her capital. So there is no question that this is an obscure or untransparent system. But what Mr Knafler says is that there is no sufficient consideration of the impact upon him as an individual, and that is what is required to give effect to proportionality.
41. Complaint is also made of paragraph 39 of the Commissioner's decision, and here I can paraphrase. Essentially he says that, even if there were a violation, he concluded that he had no power to allow the claimant a remedy. He says that, despite his duty under section 3 of the Human Rights Act to interpret legislation insofar as it is possible in a way that renders it compatible with the claimant's Convention rights, he could not so interpret the legislation, and he would be engaging in the task of legislation rather than interpretation, which he has no power to do. It is common ground that as he is not sitting as a High Court Judge, he has no power to grant a declaration of incompatibility.
42. Complaint is made of that paragraph and, in my judgment, if that was the only issue in the case, that complaint would be substantial. If and I stress "if" the Commissioner had concluded that the application of the regime to Mr Hook had been a violation of Mr Hook's Article 8 rights, there are many ways in which he could, and indeed he would be obliged to, ensure that that violation ceased. Since this was canvassed in the debate before this court, it is worthwhile setting them out. First, says Mr Knafler, once Mr Hook had informed the social security authorities of his change of circumstance, there was a discretion to apply to him the new regime -- a claim for both him and his partner but also then taking into account his partner's resource -- but not a mandatory duty to do so, although obviously in the normal case the discretion would be exercised in accordance with the regulatory scheme. It is possible, says Mr Knafler, for the Secretary of State or his officials to look ahead to see what the consequence of altering his single person's income support and housing benefit would be, conclude that that would violate his Article 8 rights, and therefore for those reasons choose not to do so.
43. Second, as was plain from Regulation 23, noted earlier in this judgment, the principle of aggregation and treating the partner of a claimant as a claimant is liable to be displaced "where the context otherwise requires". That was a matter that I did draw to counsel's attention, but then having reserved judgment overnight, I was interested to note a reference in one of the cases handed to me, Secretary of State for Work and Pensions v M [2007] UKHL 11. This was a decision of the House of Lords concerning the interaction of Article 8 and Article 14 to a lesbian couple under the then regulations which did not make allowance for couples who are other than a man and a woman. At paragraph 52 of their Lordship's judgment in the speech of Lord Walker, it was pointed out that, in the particular case, Mr Edward Jacobs, the Child Support Commissioner, decided the case and concluded that he could act consistently with the human rights of the claimant not by using the Interpretation Act to treat the lesbian couple as man and wife, but by the introductory rubric to Regulation 1(2) "unless the context otherwise requires". So it appears that the same Commissioner had achieved a human rights compatible result in another case by that technique, although in the event the House of Lords concluded that Article 8 was not engaged and therefore Article 14 did not avail the claimant.
44. Thirdly, the Commissioner would be able to interpret the Social Security Regulations by reading in and reading down, as the Court of Appeal and the House of Lords have indicated is possible in the case of Ghaidan v Godin-Mendoza [2004] 2 AC 557, the reading down taking some such form as "save where human rights otherwise required" or some version of that.
45. Finally, of course, the regulations that disentitle the claimant in this case were regulations made under a primary statute, but not the primary statute itself. Therefore, there was no constitutional inhibition, if it was necessary to do so, to simply declare those regulations or that part of them that bit upon the case to be void, in accordance with the Commissioner's jurisdiction to decide whether the decision was in accordance with the law: the law in this case being section 6 of the Human Rights Act and section 6(2), which prevents certain kinds of decisions being treated as contrary to human rights where they are in compliance with the mandatory obligation for primary legislation did not apply.
46. Mr Knafler developed his attack on the key part of the judgment of the Commissioner dealing with justification by reference to the decision of the House of Lords in Huang v the Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 WLR 581. This, of course, was an immigration case concerning the proper approach of the adjudicator in an immigration human rights appeal, provided under the immigration statute, where a person faced removal from the United Kingdom with the consequence that they would be separated from their family. The House of Lords made it plain that that decision was a decision for the adjudicator him or herself, giving such weight to the policy considerations which arose in that case, and it was not a decision that should be decided either by reference to: "Could a reasonable Secretary of State have concluded that it was necessary to deport or move?", or any version of that formula, nor was it necessary to ask the question: "Was this an exceptional case justifying the conclusion of a breach?"
47. However, I accept the respondent's point that paragraph 17 of the decision in Huang indicates that the appellate committee was in that paragraph particularly concerned with the statutory context of an immigration human rights appeal, where both the statute recognised that immigration decisions could breach human rights, and the Immigration Rules recognised that the rules had not been the conclusive means by which effect was given to the ECHR, and that there could be cases which fell outside the rules, but nevertheless violated the Convention.
48. By contrast, there are classes of case, particularly the housing cases referred to in paragraph 17, where Parliament has generally struck a balance and where the parliamentary scheme itself will indicate how, in the vast majority of cases, the question of interference with right to respect for a home is to be governed. The appellate committee found the analogy of the housing cases with the immigration case unpersuasive because:

"Domestic housing policy has been a continuing subject of discussion and debate in Parliament over very many years, with the competing interests of landlords and tenants fully represented, as also the public interest in securing accommodation for the indigent, averting homelessness and making the best use of finite public resources. The outcome, changed from time to time, may truly be said to represent a considered democratic compromise. This cannot be said in the same way of the Immigration Rules and supplementary instructions, which are not the product of active debate in Parliament, where non-nationals seeking leave to enter or remain are not in any event represented."

49. I accept that we are here dealing with a scheme set out in the subordinate regulations rather than in primary legislation from Parliament, and the quality of parliamentary scrutiny and debate is much less in the case of regulations than primary legislation. But nevertheless, these are principles set out for many years pursuant to primary legislation that Parliament has been content to adopt as a balance between competing claims on the public purse, and these matters do of course concern very much the making of best use of finite public resources. So, in my judgment, the claimant does not get too much assistance by way of paragraph 17 of Huang.
50. A little greater assistance, however, is obtained by paragraph 19, which is a general review of what any court in any context has to do by way of considering justification of a human rights. Paragraph 19 provides as follows:

19. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80, the Privy Council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate:

'whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'

This formulation has been widely cited and applied. But counsel for the applicants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, from which this approach to proportionality derives. This feature is (p 139) the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R(Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, paras 17-20, 26, 27, 60, 77, when, having suggested a series of questions which an adjudicator would have to ask and answer in deciding a Convention question, it said that the judgment on proportionality:

'must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage.' (see para 20).

If, as counsel suggest, insufficient attention has been paid to this requirement, the failure should be made good."

51. Mr Knafler therefore submits: where is the evidence that the Commissioner asked himself either question (iii) referred to in that paragraph: is the means used to impair the right or freedom no more than is necessary to accomplish the objective?; or question (iv), which has been added to the checklist as a result of having been omitted from the key decision of R(Daly) v Secretary of State for the Home Department, namely that it must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. Mr Knafler submits that that fair balance has to be applied in the context of the individual case, and it is not sufficient to say that the legislation generally serves a legitimate aim and an effective purpose.
52. Those therefore were the contentions in the case as argued before me. I have already indicated that, if the case turned upon paragraph 39 of the Commissioner's decision, there would be a basis for relief. But, in my judgment, the case does not turn upon paragraph 39, where the Commissioner went on to consider what he could do if he found there was a violation. He has not found a violation, and he did give his reasons why he considered it was necessary in the interests of the economic well-being of the country to deny benefit in this case. If more developed argument had been made, relying particularly upon the impact on Mr Hook as a disabled person, it may be that something more by way of reasoning would be expected and required to dispose of that argument. But for the reasons which I have sought to explain at some length by quoting from the procedural history of this case and the essential submissions made, I conclude that the Commissioner was not really being invited to accept that the regulations served a legitimate purpose in the vast majority of the cases, but in the particular case of this claimant, they went further than was necessary or further than was legitimate because of the impact upon him. What the outcome to such a case would be I do not seek to estimate. But I do recognise that, applying paragraph 19 of Huang, it may be in the appropriate case necessary for the Commissioner to grapple with it.
53. In my judgment, however, he does not have to grapple with human rights in the abstract. He has to grapple with the basis that is placed before him on why he should grant permission to appeal from the Tribunal where, as I have indicated, the human rights point was not live at all. In those circumstances, I have come to the conclusion that it is not appropriate to grant relief in this case: either because the alleged error of law is essentially one going to the sufficiency of reasons in the context which there was not sufficient precise argument requiring a more sophisticated analysis of the reasons; secondly, because he has reached a conclusion on the issues that were before him as to the overall impact and legitimacy of the regulations when applied to partners generally; and thirdly, if there was any debateable error of law in those reasons, in my judgment it does not meet the test for grant of relief set out in the two authorities to which I referred at the outset of this judgment.
54. I therefore conclude that this is a case in which the application should be dismissed. I appreciate that leaves the claimant in a vulnerable position, but, in my judgment, it is particularly important in the interests of finality for him to deal realistically with the predicament that he is in and have to make such decisions as are necessary to enable him to seek to retain his home if possible, this process now having expired. That may well require some cesser of cohabitation with his partner, but human rights do not require the state to respect every form in which people live together, and if partners with a history of disposition of capital are to be taken into account, then the state should not be, as it were, forced to accept that cohabitation.
55. It is the impact upon him as a disabled person which has caused me some concern, but there may well be other ways in the future where that can be re-balanced and re-addressed, and certainly it is necessary for that claim to be presented fully and effectively before any inferior judicial body could be criticised for failing to give sufficient reasons.
56. It was pointed out by the respondent that the class of persons who are in receipt of income support are generally not expected to work. Mr Knafler points out that it goes further in the claimant's case: it is not a question that he cannot be expected to work; he cannot work. It may be that a shortfall in his care arrangements if his present partner does leave and stop co-habitation could be met either by her during day time care or others until such time as a change of circumstance can be taken into account. But if there is ever at some point in the future, future co-habitation and the matter falls to be re-determined, it may well be the facts of this case will need to be borne very carefully in mind by those who have to make future decisions on the application of this legislation and the human rights principles which are beginning to emerge from the case law. That however is for the future. For the reasons I have given, I have disposed of the application in the way that I have.
57. MISS BUSCH: Thank you, my Lord. No application for costs.
58. DEPUTY JUDGE: Do you have any application?
59. MR KNAFLER: My Lord, I have two applications: one is for a detailed assessment of the claimant's publicly funded costs; and the other application, which I make briefly, is for permission to appeal to the Court of Appeal, which I am instructed to make alongside the decisions Mr Hook will obviously have to make in the near future. There is a possession hearing coming up quite soon with a mandatory ground for possession, and I really put it quite shortly in this way: I completely accept that ultimately human rights decisions are completely -- well, very substantially -- fact-specific, and you cannot really seriously get off the ground without examining the facts very carefully and trying to ascertain the precise nature and gravity of the interference. That was one of the points I was seeking to make yesterday. I accept that the evidence was not put before the Commissioner in that way, but as the case law says, the jurisdiction is inquisitorial and the ground of appeal, the first ground of appeal, is that having concluded that Article 8 was engaged and there was some degree of interference, what the Commissioner should have gone on to do was either to investigate those facts himself with such assistance as he was able to get from the various representatives, or to remit it for that to be done, otherwise the grounds of appeal are really that Huang applies more strongly than as per your Lordship's judgment, and that the Sinclair test is too high.
60. DEPUTY JUDGE: Yes. I am grateful for the application, I refuse the application for reasons which I hope are plain from my substantive judgment. I am particularly concerned about the prolongation of this litigation.
61. MR KNAFLER: I think formally your Lordship has to write something down on a certificate somewhere.
62. DEPUTY JUDGE: Yes, that has been handed to me. In my judgment, the proposed grounds have no reasonable prospect of success and I do not consider it is in the public interest to grant permission to appeal.
63. MR KNAFLER: Thank you, my Lord. I think your Lordship may have ordered a detailed assessment of the claimant's publicly funded costs?
64. DEPUTY JUDGE: Yes, that has been granted.
65. MR KNAFLER: Thank you.