The substantive law was reviewed by Steve Jones, JSSL and Stewart Wright ; The Human Rights Act and social security- two years on: Part 2; Welfare Rights Bulletin 173 April 2003 pp11 – 13. They both found most challenges relying on the Articles 1, 8 or 14 had failed. Although the Court of Appeal agreed that the legislation was irreconcilable with Articles 8 and 14 in Tucker v SoS for Social Security , however, it held that the provision was a justifiable aim to prevent abuse of the HB scheme The applicant being disentitled to HB because her landlord was her former partner. It is submitted that the applicant may have had a better chance of success had she contended that regulations 7(1)(c) & (d) indirectly discriminates against women, relying upon Jordan and others v United Kingdom (24746/94) (2003) 37 E.H.R.R. 2 11 B.H.R.C. 1 Times, May 18, 2001 2001 WL 483066 at H14 because women are more likely to be caught by the rule and it would have been more difficult for the court to accept an argument of proportionality. Evidently statistics show that 93% of lone parents are women. Therefore women are 9 times more likely to be caught by this rule than men and I would submit that this makes Regulation 7(1)(c) disproportionate. I would welcome other opinions and be interested to hear from anyone who might like to run this argument at appeal.

You will of course still have to argue that these 7(1)(c) & (d) are not justifiable to prevent abuse of the Housing Benefit scheme. I can see why you seem to be concentrating on 7(1)(c) because I would contend it is much easier to argue that the 7(1)(d) is justifiable since it is reasonable to exepct a parent to provide for their child.

I accept that 7(1)(c) is more difficult to justify but, if you don't mind sharing exactly how are you going argue that 7(1)(c) is not justifiable is it purely on the disproportionate effect on women?

Tucker argued that the analogous/comparative group was women in the same situation renting from non ex partners and that the discrimination was between these two groups. I would argue that the comparative group was men and women because 7(1)(c)is 9.3 times more likely to entrap women than men this takes the argument further For example ICA at first was not paid to wives, who are women looking after husbands and therefore deemed to indirectly discriminate against women Therefore, 7(c) indirectly discriminate against women because it is 93% of women who are loned parents and they are therefore much more likely to be caughr by the rule. It would also be intersting to find out the per centages of men left with houses renting from ex partners compared to women and ex partners who are men. Admittingly the reg applies to men in the same situation but I would contend that this argument is prevented by the recent case of Secretary of State v DWP( ex parte M and Langley).

Your comment about being reasonable to expect a parent to provide for a child is accepted but it does not address the problem if the absent parent cannot provide for the child(ren) or if the parent with care has other children.

It seems to me that the regulation overal discriminates against women because the fact still remains that the overwhelming majority of HB claimants who are caught by it are or will be women. Hence the indirect discrimination argument. I would asking the tribunal/court to hypothetically substutute the word woman for claimant in the regulation. I think they would then realise how discriminatory the reg is.

It may have been right for the CA to hold that the reg was proportionate but my opinion is that they would have hot found this if the argument above had been put to them.

It could also be argued that the reg and the CA's decison accepts that women are 9 times more likely to abuse the HB system than men.

My recollection is that ICA directly discriminated against married/cohabiting women as they were specifically excluded from ICA. Men (married or not) and single women had no restriction.
Why is it discriminatory to expect a parent to provide a home for their children?

I am not saying it is discriminatory to expect a parent to provide a home for their children, assuming hey can afford to do so. My question is what if they cannot. Tucker decided that they would either have to give up the home or find the rent from elsewhere. The introduction of regulation 7 meant that they were not liable to make payments in respect of the dwelling. Similarly the ICA reg meant that wives/cohabitees were expected to provide care for their husbands and because this affected all women it was found to be directly discriminatory. What I am highlighting is that a woman as a lone parent is 9.3 times more likely to be caught by regualtion 7 than a man. Therefore, the regulation indirectly discriminates against women.

You quite rightly point out that ICA directly discriminated against married/cohabiting women. What I am saying is that HB regulation 7, although not stating women does in fact discriminate against women when compared to men, 93% of women compared to 7% of men. This is not the actual figures of people caught by the regulations but the figures of male and female lone parents

I have always believed that itis a dangerous road to go down to prejudge what a person should or shouldn't do, before they are deemed to deserve benefit. For example should members of families be paid for providing childcare for their own children or children's children. My belief is that benefit is not about deserving, it is about entitlement. That is the only way I can approach the provision of advice otherwise I would prejudge each case. I sometimes despair when adivser's make value judgments.

We are at cross purposes here.
I'm not refering to the resident parent who claims HB.
If the non resident parent, being the property owner, refuses to allow their children and the resident parent without paying rent, wouldn't/couldn't the family court get involved?
i note the remarks in your post about advisors making value judgements. I think we should stick to the issues and not make personal remarks. And not judge someone on the evidence of a single post.
Carol

I am sorry Carol but it seems you are concentrating on the moral "ought to be" scenario when I am considering it from a purely legal perspective. That is why I used the term value judgments.

Please consider the following issues and then I'd welcome your comments

You last post assumes the absent partent can pay the mortgage and the costs of running the propery without receiving an income from it.

What happens if he cannot. I suggest the family court would not be able to help.

The result of this would be that the family would have to be uprooted and move into less suitable accommodation. Perhaps the kids may have lived there all their life. Gone to same school etc. Would this be morally fair I think not but because morals are subjective it is far beet to look at the regualtions and try to circumvent them. In Tucker she argued that she was discriminated gainst by comparing herself with women renting from landlords who were not their expartners and previously lived with them.My suggestion is that Tucker may have been more successful by arguing indirect discrimination engaging Articles 8 & 14 rather than the direct discrimination.

From a personal point of view I believe that absent parents should contribute and be involved their children's upbringing. However, I do not believe that this should be used as a mechanism to save public expenditure.

One final thought, when Reg 7 as it is now is invoked this leads to the parent with care or the woman on her own having to move out, probably to less suitable accommodation and possibly to areas they don't know. This leaves the house with the other partner, who can now do with it what he likes. Sell it rent live in it. How moral is this

Why should it not be used as a mechanism to save public expenditure.

Reg 7 is about preventing an abuse of the scheme by setting out a class of cases that are excluded.

It is all about saving public expenditure by preventing possible abuse.

Reg 7 sets out circumstances were claimants are treated as not liable where there is:

a) a clear abuse and

b) a potential abuse

There doesn't have to be actual abuse in order for reg 7 to kick in.

I also think when considering the potential for abuse and the issue of proportionality, you should look at the whole of reg 7 rather than part of it. The fact that a group might be caught more by one exclusion than another in no way suggests that they are more or less likely to be caught by any one exclusion over another.

Woman are no more likely to be caught by this provision.

People who have a rental liability to someone who is also the other parent of their child will be caught by the provision because they are the only ones that meet the criteria, irrespective of their sex. Whether they are abusing the system is irrelevant, this is about preventing that arrangement from allowing HB entitlement.

I would of course point out explicitly, as you have already done so implicitly LAWTCRAV, that the 7(1)(c) provision does not discrimate against women rather than men as much as the figures you have quoted would suggest. As you rightly point out 93% of single parents are women however this provision does not only affect single parents but any person (not even necessarily single let alone a parent)in the situation of renting a property from an ex partner that they jointly occuppied.

Those figures would be more applicable to 7(1)(d), though even there they would not represent the true picture as once again the provision is not limited to single parents but to anyone who is responsible for a child of the Landlord whether they are single or not.

Although I agree with Tony in principal, I would point out that members of a couple are more likely to not be impacted by 7 (1)(c) or (d).

Example – Miss A is the ex-partner of Mr B.
Miss A is now a member of a couple with Mr C
Mr C is liable to make payments to MR B, but Miss C is not mentioned on the tenancy agreement.

Result – HB can be paid.

Sorry, that should be "Miss A is not mentioned" etc

In the example you give I don't see why it would not come under the scope of either of the provisions.

(c) his liability under the agreement is-
(ii) to his partner's former partner and is in respect of a dwelling which his partner and his partner's former partner occupied before they ceased to be partners;

(d) he is responsible, or his partner is responsible, for a child of the person to whom he is liable under the agreement;

Yes, I agree. A classic piece of reading what I expected the regs to say rather than what they actually did.

I don't understand the remark that reg 7 does not or would not affect more women than men. I have been an adviser for over 20 years and I can count on the fingers of one hand the number of cases I have dealt with where the wmoman has gone and the man has been left with the kids in the house they both occupied. However, I could not estimate the number of cases I have advised on where the woman has been left with the kids in the house.

My point is that women as lone parents total 93% where as men 7%. This then makes Reg 7 inherently more likely to catch women than men.
Also I am not against preventing abuse but I am against saving money which should be paid to families in need. It seems to me that reg 7 uses a sledge hammer to crack a nut when a more diligent and less discriminatory approach would be able to root out the abuse and allow the genuine ones to receive the benefits they are entitled to.

For example, a means test could be carried out on the landlord. If we accept the argument and I don't that reg 7 is a perfectly legitimate provision to stop abuse and potential abuse and save money then why not introduce arbitary regulations that prevent abuse of DLA or ICB or ICA.

For example no AA/DLA to anyone who lives with with a nurse or a doctor OR,

welfare righst advisers because they know the qualification criteria and might coach partners/relatives to claim.

Legal Aid should not be available to those people whose partners are solicitors or legal execs.

It is a very dangerous path to go down to accept that regs need to be introduced which may or may not prevent potential abuse. I would have thought that those hellbent on abusing the sytem are not very likely to declare that their landlord is an ex partner. We should always remeber the old adage that those who commit fraud are unlikely to consult an adviser becvause the fact they are comitting fraud suggests they already know their rights and wrongs if you see what I mean.

Having been associated with this site since its inception I am concerned that some opinions expressed mirror a restrictive approach to benefit advice when we should be trying to expand entitlement legally and by that I mean challenging unfair and unjust regulations

I for one accept that women are more likely to caught by these provisions. The point I was making in my post was that simply saying women are 9.3 times more likely than men to be caught simply because women are 93% of lone parent families is incorrect. The provisions apply to more than just single parents.

Your suggestion that the Landlord should be subjected to a means test in order to determine whether someone else would be awarded benefit I would suggest run into all sorts of problems not least what happens when the Landlord refuses to provide details since he has not applied for benefit.

I for one am also not suggesting that we should necessarily be taking a restrictive approach. My opinion is that my job and the purpose of this site is to ensure that customers, advisors and fellow practiotioners are aware of the law and ensure people receive what they are entitled to.

I know that it may look like that my opinion is based on the fact that I work for a Local Authority but my opinion is actually based on reading the regulations. You asked for thoughts about your approach and people are providing possible stumbling blocks that will allow you to refine your case and make it more likely to succeed since you will have addressed some of the possible pitfalls.

I do object to the inference that I have a restrictive approach to benefit advice. My advice is the same to everyone if they are in the same situation - based on an objective assessment to the law. In order to be granted the right to post on this site I had to send an e-mail that was almost two pages long because my job is working within a Local Authority HB department. I see advice as an essential component of my job something that it seems is not appreciated or accepted by others.

By the way my terrible english grammar and spelling in the above post is a result of my keyboard and mouse. Normally I'm quite good really.

Perhaps it would be fairer if there was an exception to 7(1)(c) the way there is to 7(1)(h) ie: that if the LA were satisfied that the claimant could not reasonably have continued to occupy the property without setting up a rental liability with the former partner they wouldn't fall foul of the reg. That wouldn't necessarily require a full means test on the former partner but would presumably require some evidence that they were not in a position to let the claimant/parent with care live in the property rent-free. Admittedly, it would put more work on both the LA and the claimant to convince one way or the other, but no different to 'non commercial arrangement' cases.

I like the "reasonable" test suggested by Reading, which in my opinion reduces the size of the sledge hammer

AO in Bradford. Awarding someone else benefit based on another's circumstances is not without precedent. HB/CTB Non dependant's deductions for example. Although unlawful LAs apply the maximum non dep if no proof/facts are submitted. They should only do this if they know that the non dep is in remunerative work. If a landlord is stupid enough to withhold evidence that would get his rent paid via HB then that's where I draw the line on value judgments. He doesn't deserve to be paid any rent at all. Seriously, on youir point provisions could be included in the regs to protect the claimant.

I accept your objection but given your status you have to recognise that the remit of your job is to ensure that benefit is paid to those who qualify for it under the present law, i.e.statute, regulations and case law. Therefore, it is a restrictive role, although I also accept that some are less restrictive than others. But in the end you have less powers to change the law, e.g. you cannot challenge your own department by virtue of the HRA and ECHR. where as an adviser can assist a claimant to do so. Again I accept there may be nothing stiopping you pointing out to atribunal that in your opinion a reg contravened the ECHR but I doubt that you would be able to take it further than that and I am not sure how the DWP would react unofficiually to you conduct, especially if it cost the public purse hundreds of thousands of pounds oe even millions.

May be to prove a point, please read my first posting again and ask yourself. "Why shouldn't this regulation be there? Not, why should it be there? I believe it shouldn't be there because it discriminates against women. I accept that not all of these women will be lone parents. However, I guess that out of single person households in the UK there will be more women than men. This takes account of longevity, divorce, separation etc.

There is nothing wrong with my keyboard its just my awful typing skills. I can spell honestly