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Supreme Court grants permission to appeal in bedroom tax remedies case

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Stuart
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From Landmark Chambers today -

‘On 12 February 2019 the Supreme Court granted permission to appeal in the case of RR (AP) (Appellant) v Secretary of State for Work and Pensions. The case is effectively an appeal from the majority decision of the Court of Appeal in Carmichael v SSWP [[2018] EWCA Civ 548], which had held that the statutory authorities (First Tier Tribunal and Upper Tribunal) had no jurisdiction to grant Mr Carmichael a remedy and disapply the size criteria when calculating his benefit, even though the Supreme Court had earlier held in R (Carmichael) v SSWP [2016] 1 WLR 4550(SC) that their application in his (and his wife’s) case breached their convention rights. Mr Carmichael did not appeal this remedy decision. The grant of permission in RR (AP) follows a “leapfrog” certificate granted by the Upper Tribunal. A substantial number of cases are stayed in the Upper Tribunal because they raise related issues.’

https://www.landmarkchambers.co.uk/supreme-court-grants-permission-to-appeal-in-bedroom-tax-remedies-case/

edit - here’s the rightsnet summary of the cases granted the ‘leapfrog’ certificate and the Court of Appeal decision [2018] EWCA Civ 548

[ Edited: 14 Feb 2019 at 08:15 am by Stuart ]
Daphne
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HB Anorak
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Wow - that’s a 999 emergency by Supreme Court standards isn’t it.

ClairemHodgson
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HB Anorak - 20 February 2019 11:50 AM

Wow - that’s a 999 emergency by Supreme Court standards isn’t it.

probably because of what those lower have done/not done after their earlier decision.

Timothy Seaside
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HB Anorak - 20 February 2019 11:50 AM

Wow - that’s a 999 emergency by Supreme Court standards isn’t it.

It looks urgent, but let’s not get too excited; a quick hearing doesn’t mean a quick judgment.

Still waiting for the judgments on the benefit cap, more than seven months on. Anybody know what’s going on there?

shawn mach
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Reminder that RR is being heard in the Supreme Court this week:

An appeal is to be heard in the Supreme Court on Wednesday 3 July 2019 in an important constitutional case on the powers of specialist tribunals and local authorities relating to the bedroom tax. Supreme Court

The Supreme Court will consider whether social security tribunals and local authorities have the power to provide effective remedy to benefits claimants in situations where the application of regulations breach their rights under the Human Rights Act.

The case in the Supreme Court is being brought by a man, known as Mr RR, who is continuing the original legal case brought by Jayson and Jacqueline Carmichael. Both the Carmichaels and RR are represented by law firm Leigh Day.

More: https://www.leighday.co.uk/News/2019/July-2019/Supreme-Court-to-hear-bedroom-tax-case

Stuart
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Ros
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Supreme Court has ruled unanimously in favour of RR - hurrah!

https://www.supremecourt.uk/cases/uksc-2018-0224.html

Ruth Knox
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What brilliant news!

Elliot Kent
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Lady Hale is very good at writing these judgments which seem so obviously right in areas of controversy.

This decision is clearly A Good Thing, but still leaves a position where the availability of a remedy is likely to depend on the wording of the provision.

Reg B13 of the HB Regs can be red-lined or dis-applied easily enough without breaking the rest of the regs. It sets out conditions under which the amount which would otherwise be included in the calculation is reduced by 14 or 25%. We can straightforwardly say “just don’t apply the reduction” and the claimant gets their whole rent.

But the drafting could easily be inverted so that instead of just creating an exception, it deals with all situations:

The figure to be used for the purposes of the calculation is:
(a) 100% of the claimant’s rent if the claimant has no more bedrooms than they require;
(b) 86% of the claimant’s rent if the claimant has one more bedroom than they require;
(c) 75% of the claimant’s rent if the claimant at least two more bedrooms than they require

It’s far less clear that you could just deal with this provision without making a mess. If it is just ignored, then the rest of the calculation is impossible - because there is no assumed value to put in the calculation. There is no reason to assume that 100% operates as a “default”. It can’t obviously be “red-lined” to be compliant. And there is no way to just shunt a case from one column to another. This is what the Court seems to be hinting at in the context of private sector letting at para 31 but does not resolve.

Or a hypothetical. Say that it is decided to introduce a £10 premium for tall ESA claimants. The reg says:

Height premium - The condition is that the claimant is at least 6 foot tall

Mrs Smith is on ESA but is only 5’ and is refused for the premium. She appeals and makes out an argument that the provision is not ECHR compliant (probably due to amounting to discrimination against her as a woman and in breach of A1P1 and A14). What is the Tribunal supposed to do? There is an incurable ECHR breach, but the provision cannot be red-lined in any sensible way and if it is dis-applied, Mrs Smith still doesn’t get anything. It cannot allow her appeal, cannot dismiss it (without being in breach of s6 HRA) and it has no declaratory jurisdiction.

I’m not sure what point I am making, beyond that there is perhaps still unfinished business here and also that careful thought would need to be given to the structure of the disputed provisions before seeking to rely on this decision.

[ Edited: 13 Nov 2019 at 08:35 pm by Elliot Kent ]
Ruth Knox
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In the first example you give, Elliot, couldn’t the LA or tribunal just disapply subsections (b) and (c)?  Haven’t thought about the height one yet but the judgement does contain some comments on levelling up rather than down. 

But on a different issue what do people think about our correct approach as advisors towards the DHPs previously awarded?  In situations where there has been a revision in decision and DHPs were previously awarded, our LA has simply offset them against the HB arrears. Clearly this is wrong legally but I have let it go because I can see the argument.  However I now feel that we owe it to our clients to follow the legal position. The arrears should be paid in full and the LA can take action as it wishes to recover the paid DHPs which would probably mean an ongoing deduction from their benefits.  What do others think?

Elliot Kent
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Ruth Knox - 18 November 2019 01:10 PM

In the first example you give, Elliot, couldn’t the LA or tribunal just disapply subsections (b) and (c)?  Haven’t thought about the height one yet but the judgement does contain some comments on levelling up rather than down.

The result is incoherent though. The provision then just reads:

The figure to be used for the purposes of the calculation is:
(a) 100% of the claimant’s rent if the claimant has no more bedrooms than they require;

In a case which doesn’t meet criterion (a), there is just no provision at all. There isn’t an assumption that if (a) doesn’t apply, 100% is used.

This isn’t an unfettered power to just re-write provisions in convention compliant ways by adding bits here and changing words there - otherwise the UT in Carmichael #2 would have upheld the FtT’s resolution of jamming new words into the Regulation which aren’t there.

By the same token (and assuming for the sake of simplicity that there are only 3 eye colours and heterochromia doesn’t exist):

(a) people with blue eyes get 100% of their rent
(b) people with green eyes get 86% of their rent
(c) people with brown eyes get 75% of their rent

If (b) and (c) are disapplied, the brown eyed claimant does not get to be treated as a blue eyed claimant, he is just missed out entirely from the provision and the percentage of rent which he gets just becomes an unknown value.

Ruth Knox
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I’ve had no comments on the other question I put, about it being wrong to offset arrears of HB owed because of this decision against DHPs paid over the years.  Does anyone have a view on this?

chacha
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Ruth Knox - 18 November 2019 01:10 PM

But on a different issue what do people think about our correct approach as advisors towards the DHPs previously awarded?  In situations where there has been a revision in decision and DHPs were previously awarded, our LA has simply offset them against the HB arrears. Clearly this is wrong legally but I have let it go because I can see the argument.  However I now feel that we owe it to our clients to follow the legal position. The arrears should be paid in full and the LA can take action as it wishes to recover the paid DHPs which would probably mean an ongoing deduction from their benefits.  What do others think?

They can’t do that, FULL STOP, they can’t even take DHP deductions from on-going HB (You can recover a DHP overpayment from an on-going DHP award but that’s another issue).

Appeal/Complain and you will get your money back but as you said, they could decide to recover via the other debt recovery methods, that’s up to them. Some will argue they should write off the DHP o/p, I don’t agree with that completely, I would say it depends but would also add that claimants should consider paying part or all of the DHP overpayment back, again depends on individual circumstances.

 

Ruth Knox
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Thanks very much. I’ve been away from work so am only just answering this now.  I think that some authorities do this and wait for it to be challenged. I think you are right that the legal situation is clear but there is a kind of commonsense reasoning which would say that the Bedroom tax had already been covered. 

Another issue is that where I have had a successful Bedroom tax appeal it has (because of the time-limit for appeals) usually only gone back to the previous March. But I have tended to ask for an “any time”  revision further back, on the grounds that if the room is not a bedroom now, it wasn’t a bedroom for any period from 2013 onwards.  So I am asking the LA to exercise their discretion to some extent, given that there is no right of appeal further back I don’t know how far I should be standing on our legal rights on the other issue.

But my bottom line is that I have no right to waive my client’s legal rights.

Elliot Kent
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Urgent Bulletin U1/2020

In some of these cases Discretionary Housing Payments (DHPs) will have been awarded to the benefit recipients. The backdated HB payments cannot be off-set against any DHPs that have been awarded.

The Department will issue a more detailed Q&A guide relating to the interaction of the decision with DHPs in due course, if you have any queries in the meantime please contact: .(JavaScript must be enabled to view this email address)