Hi guys,

Can anyone help me with caselaw as above.

Thanks

Rosemary

I'm not entirely sure what it is you're asking.

I did an appeal once on social fund funeral expenses, for example, which subsequently went to SS Commissioners, who agreed with our interpretation that a coffin was a necessary funeral expense - this wasn't how DWP had interpreted legislation previously.

When we got the decision, the legislation was amended by DWP to specifically exclude the costs of coffins. So ultimately, a bit of a pyrrhic victory really.....

Is that the kind of thing you mean?

Sorry - hasty posting while trying to do other things.
Got a case going to tribunal which we expect to go further. Judge has issued directions asking for comments as to why the tribunal should not strike out the appeal as 'the respondent does not have the power to disapply the regulation'. Looking for caselaw to quote in my reply.

What legislative point does the case turn on?

HB reg 13D(3)a.
Case is challenging LHA where a couple have a proven medical need for 2 bedrooms.

We did some work on this when I was at DA and we couldn't find a way around the regs unfortunately. May be one worth running by CPAG for their opinion?

an appeal tribunal or court cannot change or overturn legislation.

all a tribunal or court can do is apply the legislation, and in doing so they interpret it.

sometimes they also look at HRA if something is thought to be non HRA compliant, and if they can interpret the statute so that it is, they will

sometimes they have to apply EE directives/law, and may end up having to refer to europe for a decision on that

but no court or tribunal can change a statute or the regulations made under it. only parliament can change a statute, and only the authorised person can lay new regulations (which may or may not have to be approved).

so, why do you want to know that? you may get a more helpful answer with some background....

why is my post at 12.59 appearing AFTER all the others later? very odd....

I think when I posted rosessdc was showing as the last contributor so I didn’t see Claire’s post. As far as the legal position is concerned then can’t add anything to what Claire has said. Following on from Paul’s post, CPAG were looking for a test case on this a few years ago but it is not on their list now. But, maybe they might still be interested

A Tribunal cannot "change" the legislation but it can find that a specific regulation is ultra vires/ineffective because it conflicts with the Human Rights Act, but for no other reason as far as I am aware. Regs can also be ultra vires if there is no power within the parent Act to make the specific delegated law.
Only the High Court or above can declare a primary statute incompatible with HRA, and the usual response of Government then has to be to remedy the defect in the law and pending remedy to apply it as if it ahd been remedied (since you can't just change a statute overnight, while you pretty much can a regulation).
I'm sure CPAG will have thought of this.
You are only dealing with a regulation after all; but I don't think a Tribunal will thank you for a Human Rights Act challenge to the regs, if you can find one.

Thanks for all your input.
Have a barrister on standby waiting to run with this one.
Up to me to get it to that stage (gulp)
Will keep you posted.

"but I don't think a Tribunal will thank you for a Human Rights Act challenge to the regs, if you can find one."

They may not thank you, but tough - if there is a challenge which has genuine merit, there's no short cut to getting it before the UT/CoA/HoL that can by-pass the first-tier tribunal.

I had a similar case (prospective HRA/DDA challenge) recently and would, if possible, proceed as follows;

1. Don't have barrister on standby - get their written opinion/advice now, in advance of tribunal hearing.

2. Sub to tribunal, acknowledging that it can only apply the regs and that therefore appeal must fail.

3. But ask for a hearing so that there is an agreed set of facts - give notice to tribunals service and dept/LA that this is your intent and effectively invite the other side to collaborate with you and tribunal in arriving at agreed statement of facts.

4. Your sub should also outline HRA case, include counsel's opinion and ask tribunal to dimiss appeal whilst at the same time granting you leave for UT appeal on the agreed statement of facts so that HRA case can be put.

Basically, that's the way I proceeded and tribunal were happy to go along with this - only difficulty was that we had to ask for adjournment of first hearing because counsel's opinion not yet drafted and it then didn't turn out to be all I had hoped.

I'm recommending getting counsel's opinion in advance because it's the key to getting tribunal to agree to point 4.