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Winder and Ors v Sandwell
Great stuff Martin ...
Nothing to do with me- all down to Mike Spencer (our solicitor) and the barristers involved (Tom Royston at Garden Court North and Richard Drabble QC at Landmark).
Declaratory relief again ... I can never get my head around what tgis acheives in practice. Does it mean that no existing scheme has been quashed, but it will be unlawful to include such rules in Year 3 schemes from 2015? Or can this decision be relied on to revisit current schemes (and indeed year 1 schemes) (a) in Sandwell and/or (b) elsewhere?
HB Anorak - it certainly does strike down the current scheme, and does mean that other councils running similar requirements in their schemes will have to look again at them.
From Garden Court Chambers press release:
The judgment will have major implications for tens of thousands of low income council tax payers previously denied support, not just in Sandwell but in other local authority areas where similar council tax reduction schemes operate. The Court has unequivocally found that a past residence requirement is outside a local authority’s statutory powers in a scheme of this kind, and has refused the Council permission to appeal.
Practitioners may wish to consider challenges to local authorities operating similar residence requirements in other types of schemes (for example, provision of welfare assistance).
Note that they think this could have an even wider impact on other local schemes such as LWAS.
CPAG press release also if you want to read.
I’m a bit bemused at the VT’s idea that it can’t investigate the vires of aspects of a local scheme. This does not seem consistent with authority in other fields of the law (Boddington in the criminal law, and various cases in social security law).
If this were correct it could have potentially absurd results in any case where a Tribunal is hearing a case where the respondent is also in a position to enact subordinate legislation, and even more so where that subordinate legislation has not been approved by Parliament at all (as with council schemes). A respondent might claim that a particular rule was in its scheme when it was, for example, not written down anywhere. A basic job of the Tribunal must always be to decide whether any claimed rule is properly enacted into the scheme. But if you think about it, the test for whether it was ‘properly’ enacted can only ever come from the powers in the primary legislation, or else the argument becomes circular. The only way to decide whether a verbal rule was a valid part of the scheme would be to check whether the primary legislation allowed such amendments.
Would the VT enforce a rule in a local scheme that purported to take away the right of appeal, contrary to the enabling act? A rule that increased council tax for pensioners, or people with blonde hair?
Anyway, after that little rant, very well done to those who brought this JR and argued it so comprehensively. After the legal aid win, is it too much to hope that all length-of-residence tests are now finished?
There’s been a fair bit of coverage of this decision now (sorry but some of these might require you to register for the website).
The dark side of localisation: when boroughs want to keep “council tax tourists” out - New Statesman
Just bonkers, absolutely bonkers - Nearly Legal
High Court judgment set to cost councils more than £5m - Inside Housing
Judge remprimands Sandwell Council over irrational and unfair policy - Halesowen News
I’m a bit bemused at the VT’s idea that it can’t investigate the vires of aspects of a local scheme. This does not seem consistent with authority in other fields of the law (Boddington in the criminal law, and various cases in social security law).
If this were correct it could have potentially absurd results in any case where a Tribunal is hearing a case where the respondent is also in a position to enact subordinate legislation, and even more so where that subordinate legislation has not been approved by Parliament at all (as with council schemes). A respondent might claim that a particular rule was in its scheme when it was, for example, not written down anywhere. A basic job of the Tribunal must always be to decide whether any claimed rule is properly enacted into the scheme. But if you think about it, the test for whether it was ‘properly’ enacted can only ever come from the powers in the primary legislation, or else the argument becomes circular. The only way to decide whether a verbal rule was a valid part of the scheme would be to check whether the primary legislation allowed such amendments.
Would the VT enforce a rule in a local scheme that purported to take away the right of appeal, contrary to the enabling act? A rule that increased council tax for pensioners, or people with blonde hair?
Anyway, after that little rant, very well done to those who brought this JR and argued it so comprehensively. After the legal aid win, is it too much to hope that all length-of-residence tests are now finished?
Our legal officer Mike will hopefully be drafting a WRB article for the next edition that begins to look at some of these issues, so please bear with us for now, it’s all been a bit hectic as you can imagine.
This is just a side issue on this case, but as I read it: Sandwell attempted to meet the requirements for the transitional grant from central govt (para 21), which should have been worth £675,000 in Sandwell’s case. This is the grant which caused a lot of councils to keep minimum payments at 8.5% last year. And then they shot themselves in the foot, because it turned out that their new residence requirement disqualified them (para 25). Quite an expensive mistake all round.
This is just a side issue on this case, but as I read it: Sandwell attempted to meet the requirements for the transitional grant from central govt (para 21), which should have been worth £675,000 in Sandwell’s case. This is the grant which caused a lot of councils to keep minimum payments at 8.5% last year. And then they shot themselves in the foot, because it turned out that their new residence requirement disqualified them (para 25). Quite an expensive mistake all round.
Spot on, it’s a side issue to some degree as you say, but what a significant and expensive side issue, especially in a decision that seems to have been made very much on the hoof as it were. Private Eye’s Rotten Borough special perhaps…..???
Basildon has suspended it’s residence requirement until further notice! -
Basildon has suspended it’s residence requirement until further notice! -
And Tendring have done the same…
http://www.tendringdc.gov.uk/council-tax/local-council-tax-support-lcts-changes-april-2014
Thanks for the updates Daphne and Jon.
Blog post from Peter Kenway over at the NPI
And another blog from someone who I assume to be a local resident of Sandwell, be warned, some of the language is quite strong in its criticisms, as the title may indicate….