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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Implementation of Carmichael / Rutherford prior to 01/04/2017 when HB regs change comes into force in line with Supreme Court judgement.

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Welfare BU
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I have an appeal of bedroom tax decision regarding exemption of bedroom tax   for a couple with a disability who cannot share that we have won due to Carmichael judgement,  but Council are not implementing the decision and have requested SOR. I also have one similar bedroom tax appeal pending to be heard by FTT next week.  Date of decision under appeal was May 2016. Council say exemption of bedroom tax can only be implemented for couples with a disability who cannot share from 1/04/2017 when SI no 213/2017 comes into force. How do we get round this?

[ Edited: 30 Mar 2017 at 06:18 pm by Welfare BU ]
Martin Williams
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CPAG view is that an FtT should apply the Rutherford judgment. In doing so they should read into (or read down as necessary) the regulations as they were at the time sufficient to give the client an extra bedroom.

See the discussion of this elsewhere: http://www.rightsnet.org.uk/forums/viewreply/48289/

In terms of having won at FtT and the LA now refusing to implement decision due to them wishing to appeal- they do have a discretionary power to suspend at this stage- however, like all discretions this needs to be exercised properly. If the client is at risk of losing home etc. due to non payment and if also their only reason for seeking permission is they want the UT to disagree with the position that the regulations can be read compatibly to allow an award to be made then I would see the balance favours paying claimant whilst the appeal process carries on.

Martin

Daphne
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CH/3609/2014 - the Carmichaels’ original appeal from 2013 has just been allowed - no bedroom tax applied -

The decision of the Liverpool First-tier Tribunal dated 9 April 2014 under file reference SC168/13/12054 involved an error of law. The decision of the Firsttier Tribunal is set aside. The Upper Tribunal is able to re-make the decision under appeal. The decision that the First-tier Tribunal should have made is as follows:
“1. Mr Carmichael’s appeal against Sefton Council’s decision dated March 5, 2013 is allowed.
2. Mr Carmichael’s housing benefit entitlement is to be recalculated without making the under-occupancy deduction of 14%.
3. The reason for so directing is that if the Tribunal or the Council were to apply this deduction there would be a clear breach of Mr (or Mrs) Carmichael’s Convention rights, contrary to section 6(1) of the Human Rights Act 1998 (R (on the application of Carmichael and Rourke) (formerly known as MA and others) v Secretary of State for Work and Pensions [2016] UKSC 58).”

And at paragraph 6 -

Strictly the present appeal only concerns Mr Carmichael’s appeal against Sefton Council’s decision on his housing benefit entitlement. It is, however, effectively the current lead case in a block of some 170 further cases before the Upper Tribunal in England and Wales (some, but not all of which, share similar characteristics and so are known as “Carmichael look-alikes”). There are also approximately 40 further such Upper Tribunal cases pending in Scotland. In some, but not all of these Upper Tribunal appeals, the claimants have received discretionary housing payments to help bridge the gap between their rent and their housing benefit entitlement following the application of the social housing size criteria. It is not known how many other cases are pending before the First-tier Tribunal. It follows that the eventual outcome of this particular appeal is likely to have a significant impact on a considerable number of cases.

[ Edited: 27 Apr 2017 at 12:53 pm by Daphne ]
Peter Turville
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Well! I wonder if the SSWP will now seek leave to appeal against the UT decision and the issue of jurisdication /remedy?

Paul_Treloar_AgeUK
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Sophie Barnes, from Inside Housing, says DWP have told her that they intend to appeal (as predicted by another well-known twitter user Nearly Legal in same thread)

https://twitter.com/sophieevebarnes/status/857593452250398720

Elliot Kent
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I’m going to read this on the train home, but looking at the first couple of paragraphs, this seems a pretty creative decision.

Nearlylegal
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I’ve written up the UT decision here

https://nearlylegal.co.uk/2017/04/the-tribunal-unleashed/

The most pyrrhic of victories for the DWP. And a very significant decision on the powers of the tribunals. The DWP are looking to appeal to the court of appeal, unsurprisingly.

Stuart
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DWP advice to local authorities issued today (HB Bulletin U1/2017), after successful Carmichael Upper Tribunal case is ‘no action is taken at present….’

‘On 27 April, the tribunal found against the Department and ruled that it is able to grant a remedy. It decided that it has jurisdiction to recalculate the Carmichael’s Housing Benefit back to April 2013, without making the Removal of the Spare Room Subsidy deduction.

The Department is seeking to appeal this decision to the Court of Appeal in relation to the specific jurisdiction point raised. However, pending the appeal, the Upper Tribunal has suspended the effect of this decision: this means that the decision has no effect in law. We therefore advise that no action is taken at present. We will issue further guidance in due course.’

Elliot Kent
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Professor Elliott has written about the case:

https://publiclawforeveryone.com/2017/04/28/the-bedroom-tax-secondary-legislation-and-convention-rights-secretary-of-state-for-work-and-pensions-v-carmichael/

He argues that the UT was on “strong constitutional ground” in reaching this conclusion.

Daphne
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Welfare BU
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Do we know if the SoS has applied to the Court of Appeal now that 28 days have past?

Many thanks

Stuart
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According to HMCTS website update today…

‘The Secretary of State has since made an application for permission to appeal and expedition direct to the Court of Appeal.’

https://www.gov.uk/administrative-appeals-tribunal-decisions/secretary-of-state-for-work-and-pensions-v-carmichael-and-sefton-bc-hb-2017-ukut-174-aac

... and here’s the rightsnet summary of the Carmichael UT case the SoS is seeking to appeal…

Powers of tribunals to disapply or ignore bedroom tax regulations that breach human rights - [2017] UKUT 174 (AAC)

[ Edited: 13 Jun 2017 at 02:48 pm by Stuart ]
Stuart
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HMCTS update today advises that permission to appeal the Carmichael Upper Tribunal case was granted by the Court of Appeal on 23 June 2017.

https://www.gov.uk/administrative-appeals-tribunal-decisions/secretary-of-state-for-work-and-pensions-v-carmichael-and-sefton-bc-hb-2017-ukut-174-aac

Daphne
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Stuart
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Daphne - 20 February 2018 10:49 AM

Appeal of the Carmichael UT case in court today - http://www.politics.co.uk/news/2018/02/20/dwp-goes-back-to-court-to-block-future-benefit-appeals

Further details of the case from Leigh Day, who are repreenting the Carmichaels…
https://www.leighday.co.uk/News/News-2018/February-2018/Latest-case-could-hold-the-key-to-the-future-power

shawn mach
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Court of Appeal’s judgment is out:

http://www.bailii.org/ew/cases/EWCA/Civ/2018/548.html