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High Court orders urgent hearing to challenge reduced benefit cap

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Stuart
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Doughty Street Chambers has confirmed that the High Court has granted permission to appeal to four lone parent families who challenge the reduced benefit cap -

‘The claimants contend that the Secretary of State’s failure to exempt them from the benefit cap has a profound impact upon them and others in a similar position, and is discriminatory and unlawful.

This week, the High Court has rejected the Secretary of State’s submissions that the claim should be halted.  Instead, Mr Justice Morris has ruled that the claim has a ‘realistic prospect of success’ and that it must be heard urgently. The full hearing will take place in May 2017.’

http://www.doughtystreet.co.uk/news/article/high-court-orders-urgent-hearing-of-challenge-to-reduced-benefit-cap

[ Edited: 27 Feb 2017 at 09:45 am by Stuart ]
Stuart
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High Court is hearing case today - challenging the application of the benefit cap to lone parents with children under 2.

https://twitter.com/DoughtyStPublic/status/864765652669747200

Jac
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Welfare benefits adviser - Melville Housing Association, Midlothian

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Any updates?

Ros White
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Advice and Rights team, CPAG, London

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Still waiting for the judgment I believe….

Stuart
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The High Court has today ruled that applying the reduced benefit cap to lone parents with children under two is unlawful - judgment not yet published but here is Doughty Street news about the outcome -

http://www.doughtystreet.co.uk/news/article/high-court-rules-that-applying-the-reduced-benefit-cap-to-lone-parents-with

... and from Hopkin Murray Beskine

http://www.hmbsolicitors.co.uk/news/category/item/index.cfm?asset_id=1685

.... and from Garden Court Chambers with a link to the full judgment.

https://www.gardencourtchambers.co.uk/high-court-rules-that-applying-revised-benefit-cap-to-lone-parents-with-children-under-two/

[ Edited: 22 Jun 2017 at 12:16 pm by Stuart ]
Stuart
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DWP has issued HB Bulletin U2/2017 stating it is taking steps to appeal the judgment and advises -

’ Local authorities should continue to apply the current rules concerning the benefit cap to lone parents with children under 2 as usual.’

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BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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There’s a link to the judgement at the bottom of the doughty street link…

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SamW
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Hi all - I’ve got a client in this situation, if the DWP’s appeal (I assume eventually) up to the Supreme Court is unsuccessful at what point does the cap not apply from? Today’s decision or the eventual Supreme Court one?

Good work by all those involved so far.

[ Edited: 22 Jun 2017 at 04:09 pm by SamW ]
Elliot Kent
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SamW - 22 June 2017 03:10 PM

Hi all - I’ve got a client in this situation, if the DWP’s appeal (I assume eventually) up to the Supreme Court is unsuccessful at what point does the cap not apply from? Today’s decision or the eventual Supreme Court one?

Good work by all those involved so far.

Too soon to say what the effects of this judgment will be. The Court has found that the lack of an exception is discriminatory but indicates it will here further argument as to the appropriate relief.

 

tbidmead
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So is there anything a client (affected by the cap + with children under 2) can do to best protect themselves & their entitlement, in light of this judgement and any future (best case scenario) legislative changes?

Elliot Kent
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My initial view (and I should make clear that whilst the badge says Shelter, I have had nothing to do with the intervention) is that relevant claimants should find an appealable HB/UC decision and file an appeal.

Such an appeal would have to be on the grounds that DA is authority that there has been a convention breach and the UT decision in Carmichael holds that the FtT has the power to grant a remedy where a breach occurs.

So if the CoA/SC allows the appeals in either Carmichael or DA, you would be scuppered, but it at least protects the position.

I would be interested to know what CPAG thinks.

Damian
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I’m thinking the best thing to do is to appeal to protect the position but would a judgement on judicial review count as a ‘relevant determination’ for the anti test case rules? Would it fall within the term “appeal”?

Ros White
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Hi - here’s CPAG’s advice following the judgment - as you’ll see, we also think claimants should put in an appeal against the lower benefit cap decision but also make sure they get DHPs -

http://cpag.org.uk/content/advice-post-high-court-decision-benefit-cap-and-lone-parents-children-under-two

cheers Ros

HB Anorak
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Interesting point about the anti-test case rule.  The High Court is listed in para 18 of Schedule 7 to the CSP&SS; Act 2000 as one of the courts whose decisions are regarded as “relevant determinations”.  The conventional appeal route in benefits cases does not lead to the High Court - in practice the only way the High Court can end up making a decision on a point of benefits law is in JR proceedings.  It seems to me an application for JR must therefore fall within the scope of an “appeal” for the purpose of para 18, otherwise the reference to the High Court in that paragraph would be otiose.

Moreover, Para 18 is not the only place where you find anti-test case rules in HB.  Two in particular could apply here:

- revision on the official error ground is not possible where an error of law is only shown to be such by a subsequent decision of the court (HB&CTB; D&A Reg 1)
- when considering whether to extend the time limit to apply for revision on any grounds the Council cannot take into account that a court has recently taken a different view of the law from that previously understood and applied (HB&CTB; D&A Reg 5)

But as CPAG’s note recommends, the anti-test case rule does not prevent an out of time Tribunal appeal from being submitted against any HB decision in the past 13 months in which the benefit cap has been applied to a lone parent with a child under 2.  The Tribunal is not bound by the anti-test case rule, except when the appeal is against a decision in which the Council itself correctly applied the anti-test case rule.  The Tribunal will automatically entertain any appeal within 13 months if the Council does not object.  I agree with CPAG that no Council should object.

Even if the claimant was first subject to the benefit cap more than 13 months ago, there is still a right to appeal against any more recent superseding decision in which the cap has again applied.  Any time the claimant’s HB award is changed for any reason there is a new superseding decision with full appeal rights.

Finally some councils will argue that there is no right to appeal against a benefit cap decision.  I think they are wrong:

- as a matter of law the cap is applied by the Council as part of the HB “outcome” decision - in other words it is a constituent determination within an HB awarding decision;
- neither para 6 of Schedule 7 to the 2000 Act nor the Schedule to the D&A Regs has been amended to exclude the benefit cap from the Tribunal’s jurisdiction (curiously, the 1998 Act prevents an appeal against a DWP decision applying the cap, but this only affects UC where the DWP makes the awarding decision in which the cap is embodied)
- while the DWP provides notifications about the cap to local authorities, the only legal effect of these is to require the Council to “determine whether” to apply the cap
- the effective date of the cap, the amount of it, the possible existence of an exemption in any case are all matters that the Council decides and is capable of deciding wrongly: there needs to be a right of appeal

Daphne
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Written answer in parliament about the cost to the public purse of the appeal -

Legal fees of defending the case in the High Court are £67,690. This figure includes VAT where payable (for example on Counsel’s fees) and disbursements but does not include costs attributable to time spent by Government advisory lawyers, as time spent by such advisory lawyers is not recorded in a manner that allows it to be attributable to individual court cases.

DWP has also paid £125,000 (plus VAT) towards the Claimants’ costs.

DWP’s legal costs for appealing the case in the Court of Appeal are estimated to be between £25,000 and £40,000 (this includes our best estimate of external Counsel fees).

http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2017-06-28/1771

Billy
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Being very lazy , has anybody drafted pro-forma appeal letter which they would share as per CPAG advice ?