[2023] UKUT 193 (AAC)

The decision of Mr Commissioner Powell (as he then was) in CH/4429/2006 was given on 20 February 2008 in relation to earlier, differently numbered, but otherwise identical, legislation.

The decision was not published on the website of the Office of Social Security Commissioners at the time and is not now published on the website of the Administrative Appeals Chamber. I will therefore need to quote from it more extensively than would otherwise have been the case.

However, it is unnecessary for me to include those parts of CH/4429/2006 that deal with the facts of that case. I agree with the Tribunal that they are indistinguishable from the facts of this case. In other words, although there are differences between the facts of the two cases, those differences are not legally relevant.

Neither do I need to reproduce those parts of the Commissioner’s decision that consider the particular error made by the appeal tribunal in that case.

On that basis—and so far as is relevant and does not repeat legislation that I have already set out—what the Commissioner said was as follows:

“4.

This appeal relates to the treatment of student loans under regulation [64] which requires a student loan to be treated as income. The regulation contains formulae for converting the amount of the loan into a weekly amount which is then treated as part of the applicant’s weekly income. Put very simply, certain deductions have to be made and the balance is then to be spread over a period laid down in the regulations. The practical effect is that a person who is entitled to a student loan will suffer a diminution in the amount of housing benefit to which he or she would otherwise be entitled. Indeed, there may be no entitlement at all. The use of the words “entitled to a student loan” is deliberate. Many students do not wish to take out a student loan because they do not wish to leave university with a substantial amount of debt or because they may have been able to make other arrangements or else receive assistance from their families. It does not matter that no loan is taken out. The amount of the student loan to which they are entitled must still be taken into account. …

5.

The problem which arises in this case is does it matter that the student has strongly held beliefs which prevent him or her applying for a loan? To be more specific, what if he or she is a devout Muslim who considers that he or she is prohibited from applying for a loan because of the Islamic, or Sharia, laws against paying or receiving interest? As I understand it, the matter comes before me as an issue of principle. I am not concerned with the calculations which have been made.

…

11.

In the appeal to me, a number of arguments have been advanced on behalf of the claimant. Perhaps, I should say that I have sympathy for her and for her partner. The fact that they take their religion seriously to the point of suffering a degree of hardship is highly commendable. It is not something for which they should be criticised. The first point taken relates to the construction of regulation [64](3)(b) which, it will be recalled, requires a student loan to be taken into account, even where it has not been applied for, where “he could acquire such a loan in respect of that year by taking reasonable steps to do so”. It is submitted on behalf of the claimant that because of the strongly held religious beliefs of her partner and herself, it is unreasonable to expect her partner to apply for a student loan or to expect her to request him to do so. However, that is not how the regulation is worded. The regulation could have said something along the lines as “where it is reasonable for him to do so” or “reasonable in all the circumstances”. That would focus attention on the claimant’s partner and involve an examination of his reasons for not applying for a loan. However, what the regulation refers to is the taking of “reasonable steps”. Reasonable qualifies the steps which must be taken to acquire a loan. It is not concerned with other matters, such as the motives and religious beliefs of the claimant and her partner. It is the steps needed to obtain a loan – or, putting it another way, the mechanics of doing so – which are required to be considered. If that is right, then the claimant’s argument cannot succeed. No one has sought to suggest that there is anything unreasonable about the steps which would need to be taken to obtain a loan in this case. Indeed, on the limited information available to me it is extremely difficult to see how the necessary steps could ever become unreasonable save in the most exceptional case. The claimant’s argument is based on the motives and reasons of the claimant and her partner in not applying for the loan. However, as I have said, that is something which does not fall within the wording of the regulation.

12.

The claimant has referred to decisions of Commissioners where it has been held permissible to look at a person’s motives or reasons for not doing something. Namely, R(S)2/63 and CH/393/2003. They are both decisions where a person seeking benefit failed to make a claim at the appropriate time and then, when a claim was made, asked for that claim to be backdated. The issue in both cases was whether good cause for the delay had been shown. The concept of good cause for delay in presenting a claim is far removed from the present facts. I derive no assistance from such authorities when construing the words of regulation [64](3). Nor do I derive assistance from the authorities referred to in an earlier set of submissions that were sent to the appeal tribunal with a covering letter dated 19 July 2006.

13.

I reach the conclusion that the appeal cannot succeed as a matter of the simple construction of the words “by taking reasonable steps to do so” in the regulation. At any rate, without the aid of the Human Rights Act 1998 and the European Convention on Human Rights (the “Convention”). I therefore turn to this aspect of the matter. Section 3 of the Human Rights Act 1998 is as follows:

3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way that is compatible with the Convention rights.

14.

In order to bring this provision into play it is necessary to demonstrate a breach of the Convention. In the present case the claimant relies on Article 14 of the Convention taken in conjunction with Article 1 of the first protocol to the Convention (“1/P1”). Article 14 is as follows.

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

1/P1 then provides:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided by law and by the general principles of international law.

The proceeding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

15.

The claimant’s representative has lodged extensive submissions to the effect that this matter – by which is meant the award of housing benefit – falls within the ambit of 1/P1. I have been referred to passages from the case of Stec and other -v- United Kingdom, European Court of Human Rights - applications 65731/01 and 65900/01 (admissibility decision given on 6 July 2005, final decision given on 12 April 2006) which it is submitted show that it does. It is only if the action complained of falls within the ambit of some other provision of the Convention that one can consider whether or not there has been a breach of Article 14. For present purposes I am going to assume, without deciding, that 1/P1 is engaged. That is a matter which is not entirely easy to decide on the present state of the authorities. However, on the assumption 1/P1 is engaged, it becomes necessary to consider Article 14.

16.

I must mention one point before doing so. Article 9 of the Convention provides as follows.

1.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals or for the protection of the rights and freedoms of others.

Article 9 was raised at a very early stage in the appeal to the tribunal. However, it was not mentioned thereafter and there have been no submissions addressed to me about its relevance. That being so, it is not appropriate for me to consider it. Further, from my limited understanding of the area, Article 9 is concerned to outlaw acts or omissions which interfere with the practice of a person’s religion rather than the ability of the adherence of a particular faith to access financial benefits or subsidies which are open to them under the general law but which they cannot access because of some part of their belief.

17.

I begin by pointing out that what is complained of is not the law relating to student loans. It is the fact that they have to be taken into account under regulation [64](3). The claimant does not seek to attack student loans themselves and her representative’s submissions do not go into detail about them and how they operate. She does not seek to say that nobody should have a loan nor does she attempt to say how they might be amended to accord with Islamic law – something which, I suspect, could be very complicated. The evidence obtained from the internet alludes to the fact that banks and other lenders have devoted much energy to designing loans which are compliant with Islamic law. However, this is a general comment and no mention is made of any such attempts extending to student loans. Further, although the matter has largely been argued on the basis of their religious scruples, it should not be forgotten that at the beginning at any rate an alternative reason was put forward namely that the claimant’s partner did not wish to complete his mechanical engineering course owing a substantial amount of money. If that reason still holds good, the claimant and her partner would not wish to take out a student loan even if it could be made compliant with Islamic law.

18.

Her complaint is with the Housing Benefit regulation and the fact that the amount of the loan is treated as income. However, on the basis that all, or virtually all, students are eligible for a loan, then the amount of the loan is taken into account in all cases – whether or not any particular student has applied for it and, if not applied for, whatever the motives for not applying. The claimant and her partner wish to escape from this universal situation by putting forward a particular reason. They are thereby seeking to place themselves in a favourable situation not enjoyed by others. Many students will have sound and perfectly reasonable objections against incurring debt at all or may wish to defer doing so in order to limit their ultimate liability. For example, if they will be involved in further education or training following a first degree course. Again, if they are contemplating a career which, whilst entirely worthwhile, will not pay well – such as a career in the caring professions. Many people simply have an aversion to incurring debt and in some cases this will involve deeply held principles akin to those of a religious nature.

19.

The regulation requires that everyone should be treated in the same way whether they apply for a loan or not. For the reasons I have attempted to explain, I do not consider that the claimant has made out a case that she and her partner should be treated differently from others or that their situation is significantly different from that of others. See paragraph 44 of Thilimmenos -v- Greece, European Court of Human Rights, application number 34369/97. The claimant may say that that is all very well but other persons, who object to taking out a student loan, could take one out if they wanted to. She and her partner, on the other hand, are prevented from doing so by their religious principles. However, those principles are simply one amongst many perfectly understandable motives for not taking out a loan. I see no reason why, because they hold them, they should be placed in a favourable position.

20.

They are being treated in exactly the same way whether they take out a loan or do not. They are treated in the same way as everyone else. There is no discrimination and therefore no breach of Article 14. It follows that I must dismiss the appeal.”

The emphases in that quotation are the Commissioner’s.