[2023] UKUT 193 (AAC)

Gravesham’s response to the appeal was brief. It maintained that, given CH/4429/2006, the Tribunal had reached the correct decision.

The Secretary of State’s response contains a helpful summary of her case as follows:

“2.

The regulations impose what is (in effect) a statutory duty (or obligation) upon an Applicant for housing benefit to take reasonable steps to apply for a student loan before the potential income from that loan is discounted for the purposes of calculating entitlement to such benefit. Whilst the circumstances of [the claimant’s] case attract sympathy, an individual cannot avoid that duty on the basis that its existence is contrary to their beliefs (whether religious or otherwise). In that regard the SSWP contends that

(a)

The word "reasonable" is concerned with the nature and quality of the steps which are taken in discharge of the duty/requirement to take reasonable steps (as opposed to the applicability of that requirement/duty).

(b)

When deciding whether reasonable steps have been taken, the decision maker is not permitted to take account of a belief (whether based on religious grounds or otherwise) that loans are wrong. To do otherwise would (a) be contrary to the proper construction of the Regulation (b) would fatally undermine its purpose (making the use of the Regulation contingent upon the personal beliefs of those who are subject to it) and (c) would be impossible to implement in practical terms.

(c)

The construction of the regulation which the Tribunal has provisionally adopted is liable to give rise to direct discrimination against those who do not hold a relevant belief that student loans are wrong (absence of a belief being a protected characteristic under [section 10(2)] of the Equality Act and also protected under Articles 9 and 14 of the European Convention on Human Rights). The SSWP' s construction avoids such an outcome.

3.

Accordingly, the only lawful interpretation of the regulation is one which treats a conscientious objection to the existence of the duty/requirement (whether based on religious grounds or otherwise) as an irrelevant consideration for the purpose of deciding whether reasonable steps to apply for a loan have been taken.

4.

The SSWP provisionally accepts that the above interpretation indirectly discriminates against those with [the claimant's] religious beliefs (because it places them at a particular disadvantage compared to those without such beliefs). Any such discrimination is, however, a proportionate means of achieving a legitimate aim for the reasons set out in paragraph 10 below.

…

10.

The Respondent respectfully contends that the construction advanced above is the only reasonable construction open to the Tribunal. It provisionally accepts that such a construction is indirectly discriminatory against those in [the claimant's] position who regard the obtaining of a loan as being contrary to their religious beliefs (the relevant comparator group being those who do not hold such beliefs). The Respondent nevertheless contends that such discrimination is objectively justified. In so contending the Respondent relies upon the following factors:

(a)

The legitimate aim behind the provision, namely that those for whom there is a potential alternative source of income (namely student loans), do not draw upon finite public funds which are made available in the form of housing benefit.

(b)

The fact that the SSWP's construction of the regulation is proportionate (and goes no further than is necessary to achieve the legitimate aim) because

• It ensures that the regulation is applied in a manner which is not directly discriminatory (and indeed is necessary to avoid a construction of the regulation which directly discriminates against a person due to the absence of a belief).

• It avoids the invidious and impractical consequences which would flow from decision makers forming judgments as to the validity and strength of different objections to the taking out of student Ioans.

• It ensures that the legitimate aim behind the regulation is not fatally undermined by what is otherwise liable to be significant numbers of individuals asserting that they had a conscientious objection to the taking out of a loan, whether on religious grounds or otherwise.”