For those of you that know about legal techie stuff....:

I'm considering pursuing an appeal where a local authority is likely to rely on the case of R v Swale BC HBRB ex p. Marchant <1999> 1 FLA 1087, QBD; <2000> 1 FLR, CA.

If a tribunal finds for the LA citing this case, how (assume the tribunal's decision contains no errors in any other respect please) can I show an error of law where I disagree with the judge's conclusion in the court case...? One would assume that given the hierarchy of courts and judges, following a precedent would automatically render the decision legally correct?

A point in the direction of decent educational web resources that might answer this question would be great.

Thanks,

Not as such. Only if the case is distinguished on the facts and the court case was thus inapplicable or wrongly applied, or, that you could demonstrate that the judge in the court case committed such an obvious legal howler that the tribunal should not have followed his decision.

Thanks Paul,

The case is certainly distinguishable on the facts. The issue is about rent restrictions on size criteria (LRR and LHA). In Marchant, it concerned shared care of a child but in my case it's do with a second room for a live-in carer (the mutual issue is assessing who's household the second person lives in, and it's that point I think the judge got wrong).

I've dealt with complex rent restriction cases several times but I don't remember seeing any decent case law about second room for carer's. Do you, or anyone else, know of any?

Thanks,

Tony

The problem is that LHA at least is so new that there won't be any precedents for it yet - and unless it gets to at last commissioner level your case won't set one either!

Tony

CPAG were looking for a test case on this issue several years ago but its not on their list on the website now but you might want to try giving them a abell anyhow.

Thanks,

The appeal isn't even lodged yet, but I will post up later with any significant progress or further questions.

Thanks again,

Tony

Tony

Have you seen Stainsby’s post at the link below? I don’t know if it has any relevance to your case or not.

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=7007&mesg_id=7007&page=

If I can go back to the original question - any case is only useful as a precedent if it turns on exactly the same legal point. There are therefore a number of reasons why a strict following of Marchant now may be inappropriate: it was not concerned with LHA, and your appeal relates to a different statutory provision. Another key issue, in my view, is that Marchant predated the Human Rights Act. The significance of that is that it was concerned with who was an occupier, and in some situations could, I would argue, breach rights under Art 8.

If the tribunal decision relies on Marchant, your application for leave must distinguish Marchant on the facts, or law. Given also that a High Court decision is not strictly binding on a tribunal in a different jurisdiction you can also argue - being bold - that it was wrongly decided and should not be followed by appeal tribunals or commissioners!

Simon Ennals