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Forum Home  →  Discussion  →  Housing costs  →  Thread

Supreme Court grants permission to appeal in bedroom tax remedies case

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Ruth Knox
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Good that confirms what chacha and others said should happen now will happen. I have had no comments on my other query. If we have had, say, a successful size appeal against a 2019 decision shouldn’t we ask for an any time revision back to 2013 as the room has been the same size all along?

HB Anorak
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Any time revision is prevented by one of the anti-test case rules.  The only potentially relevant “any time” ground for revision in HB D&A Reg 4 is official error, but this is defined in Reg 1 as excluding errors of law that are only shown to be such by subsequent case law.  And even if it were possible to get an application for revision entertained in principle, paragraph 18 of Schedule 7 to the Child Support, pensions and Social Security Act 2000 would require the Council to approach any period prior to the date of the case law in the old way, as if the court’s decision never happened.

The decision provides grounds for a superseding decision but, as Martin Williams pointed out on the other thread, the Regs had already been amended by the date of the decision so it isn’t possible to revisit any size criteria decisions in other cases on the back of the court’s judgment.

The only older cases to benefit from RR will be those already in the appeals system that were stayed behind RR.

Elliot Kent
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HB Anorak - 12 January 2020 01:29 PM

Any time revision is prevented by one of the anti-test case rules.  The only potentially relevant “any time” ground for revision in HB D&A Reg 4 is official error, but this is defined in Reg 1 as excluding errors of law that are only shown to be such by subsequent case law.  And even if it were possible to get an application for revision entertained in principle, paragraph 18 of Schedule 7 to the Child Support, pensions and Social Security Act 2000 would require the Council to approach any period prior to the date of the case law in the old way, as if the court’s decision never happened.

The decision provides grounds for a superseding decision but, as Martin Williams pointed out on the other thread, the Regs had already been amended by the date of the decision so it isn’t possible to revisit any size criteria decisions in other cases on the back of the court’s judgment.

The only older cases to benefit from RR will be those already in the appeals system that were stayed behind RR.

Do you think this is impacted by the human rights aspect?

i.e. in the situation we are thinking of, somebody has suffered a breach of their ECHR rights in the underpayment of HB between 2013-2017. Operation of the anti-test case rule would deny the claimant a remedy for, and arguably perpetuate, that breach.

There are already Art. 6 concerns about the anti-test case rules in cases which do not independently engage ECHR - surely these are amplified in a case where the rules are used to deny a remedy for what is already an ECHR breach.

Is it arguable that Parliament did not intend para. 7, CSPSSA to operate in a case where it would entail an ECHR breach and that the provision should be read down accordingly?

HB Anorak
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Well, some of the anti-test case rules are regulations so I suppose RR itself could be relied on to bypass them, but para 18 of Schedule 7 is the problem: it is primary legislation and so s6 of the HRA cannot be relied on.  And I don’t think s3 would stretch to simply ignoring Schedule 7: s3 remedies for incompatible primary legislation involve quite subtle interpretations.  Only human rights remedy I can see is a declaration of incompatibility in separate proceedings.

Elliot Kent
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HB Anorak - 13 January 2020 08:58 AM

Well, some of the anti-test case rules are regulations so I suppose RR itself could be relied on to bypass them, but para 18 of Schedule 7 is the problem: it is primary legislation and so s6 of the HRA cannot be relied on.  And I don’t think s3 would stretch to simply ignoring Schedule 7: s3 remedies for incompatible primary legislation involve quite subtle interpretations.  Only human rights remedy I can see is a declaration of incompatibility in separate proceedings.

We do have cases like R v A [2001] UKHL 25 where the courts have been prepared to use s. 3 to imply a “safety valve” into provisions of primary legislation so that they don’t operate if the result would be a convention breach…

HB Anorak
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I don’t think any local authorities are going to dare to do that.  But thinking what the route would be to get the issue in front of a court again, I think actually it is possible to by-pass Sched 7.18 if a Tribunal can be persuaded to do the following:

- claimant appeals to Tribunal against a decision made as early as 2013
- obviously that appeal is years out of time
- but argues that before RR there would have been no point appealing in time as Tribunal unable to provide a remedy by way of a higher HB award
- Article 6 requires the appeal to be admitted, and there is precedent for the long stop time limit being waived where it is incompatible with Article 6
- As to the substance of the appeal, Tribunals are not bound by the anti-test case rules except when the decision under appeal was made under the anti-test case rules.  That would not be the case here - it is an appeal directly against the original entitlement decision from 2013. So the Tribunal could uphold the appeal and award increased HB using its RR powers.
- Alternatively, if the Tribunal declines to admit the appeal there is then a possibility of an appeal to the UT and a chance for a precedent-setting body to pronounce on the wider issues of anti test case rules and Article 6.

Elliot Kent
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A very long time ago (well it feels like a very long time ago - before even Carmichael #1), an FtT Judge in Bolton decided that Reg B13 was discriminatory and could be disapplied in the context of an Adult Placement Scheme (i.e. Shared Lives). A claimant who is approved as a foster carer and intermittently uses their “spare” room to house foster children is entitled to an additional bedroom; and so a claimant who is approved to house vulnerable adults under this scheme ought to be treated in the same way. This conclusion was upheld by Judge Jacobs as SSWP v PE and Bolton MBC [2017] UKUT 393 (AAC) but, following Carmichael #2 in the COA, that conclusion would have seemed unsustainable.

Case Tracker is now saying that - following a lengthy delay whilst RR was awaited, the SSWP has been refused permission to appeal so the conclusion of the FtT Judge and Judge Jacobs would appear to stand.
https://casetracker.justice.gov.uk/getDetail.do?case_id=20180333

I think that in terms of established human rights challenges to the bedroom tax this gives us:

(1) Carmichael & Rutherford lookalikes which are obviously now provided for by specific regulations so dis-application isn’t necessary for new cases.
(2) Shared Lives cases - where the situation - as above - is that there has been no change to the legislation but it appears a dis-application argument can be used.
(3) Sanctuary Scheme cases - where the Supreme Court says there is no discrimination, but the ECtHR says that there is - seemingly opening the door to a dis-application argument. However the government is asking the Grand Chamber to look at this case (read - appealing) so it isn’t a done deal yet. The Grand Chamber is going to decide whether to pick this up on Monday and there will be a decision announced on Tuesday (https://www.echr.coe.int/Pages/home.aspx?p=home)

Elliot Kent
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Elliot Kent - 19 February 2020 10:38 PM

Sanctuary Scheme cases - where the Supreme Court says there is no discrimination, but the ECtHR says that there is - seemingly opening the door to a dis-application argument. However the government is asking the Grand Chamber to look at this case (read - appealing) so it isn’t a done deal yet. The Grand Chamber is going to decide whether to pick this up on Monday and there will be a decision announced on Tuesday (https://www.echr.coe.int/Pages/home.aspx?p=home)

Grand Chamber has refused to hear this case so the decision is now final.

Stuart
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Written answer from DWP Minister Will Quince today -

We are carefully considering next steps in response to the European Court of Human Rights decision.

In the meantime, for people in particular circumstances who may require more support, Discretionary Housing Payments (DHPs) are available.