Thursday Law Report: Religious Reasons Did Not Make Agreement Commercial ; 22 April 2004 Campbell and Others V South Northamptonshire District Council and Another ([2004] EWCA Civ 409) Court of Appeal, Civil Division (Lord Justice Peter Gibson, Lord Justice Jacob and Sir William Aldous) 7 April 2004

Article excerpt

RELIGIOUS, OR indeed any other, reasons could not turn a non- commercial basis for a tenancy agreement into a commercial basis for the purposes of regulation 7 of the Housing Benefit (General) Regulations 1987, SI 1987/1971.

The Court of Appeal dismissed the claimants' appeal against a decision that the agreements pursuant to which they occupied premises owned by the church of which they were members were not "on a commercial basis" within regulation 7 of the Housing Benefit (General) Regulations 1987, SI 1987/1971.

The claimants were members of the Jesus Fellowship Church. They occupied properties owned by the church under agreements of various types.

Their applications for housing benefit were refused by a social security appeal tribunal, which held that the agreements pursuant to which the claimants occupied their dwellings were not "on a commercial basis" within the terms of regulation 7 of the Housing Benefit (General) Regulations 1987. Regulation 7 provided:

(1) a person who is liable to make payments in respect of a dwelling

shall be treated as if he were not so liable where - (a) the tenancy or other agreement pursuant to which he occupies the dwelling is not on a commercial basis . . .

(1A) in determining whether a tenancy or other agreement pursuant to which a person occupies a dwelling is not on a commercial basis regard shall be had inter alia to whether the terms upon which the person occupies the dwelling include terms which are not enforceable in law.

Further appeals by the claimants to a social security and child support commissioner were refused, and they appealed again to the Court of Appeal.

The claimants submitted, first, that the tribunal had erred in law in giving weight, in deciding whether the agreements were "on a commercial basis", to factors which were manifestations of their religious beliefs, since that violated their right to freedom of religion guaranteed by article 9 of the European Convention on Human Rights and was discriminatory in violation of article 14; and, secondly, that the Housing Benefit (General) Amendment (No 2) Regulations 1998, which had amended the 1987 Regulations, were ultra vires in that the Social Security Advisory Committee had been misled as to the effect of the proposed amendments into agreeing that a formal reference to it was unnecessary pursuant to section 173(1) of the Social Security Administration Act 1992. …