Rutherford, Carmichael and anti-test case rules
I have been prompted to raise this after a local authority asked me about the effect of the Supreme Court decision on cases with similar facts. A lot of claimants will be caught by the various anti-test case rules, for example:
- definition of “official error” for any-time revision purposes
- extension of time limit for revision applications
- general principle that new case law provides grounds for a superseding decision from the date it was handed down but must be ignored when decisions are made in respect of earlier periods
What I am not so sure about is the date that should be used as the anti-test case watershed. A brief summary of the history of these cases is:
1. UT decision in Carmichael case was issued 27 April 2017. Key point was that Tribunals (and by extension authorities making first instance decisions) may make HRA-compliant benefit awards even where it is not possible to interpret secondary legislation in a compliant way.
2. The Court of Appeal upheld the Secretary of State’s appeal against the UT decision in March 2018
3. The Carmichaels did not take their appeal any further, so as far as their case is concerned the March 2018 decision was the final one and it did not allow HRA violations to be remedied by way of an enhanced HB award.
4. In a completely different case, RR, the Supreme Court has come to the same view as the UT in Carmichael. The Supreme Court’s decision is 13/11/2019.
I am thinking that, as RR was not an appeal from the Court of Appeal in Carmichael, it does not resurrect the original UT decision for anti-test case purposes - it is a new case and anyone who is not already in the system and flagged as a “look-alike” will only be entitled to a superseding decision from November 2019 rather than April 2017. It goes without saying that DWP has been completely silent about this, unless there is a Circular or bulletin that I cannot find.
But weren’t the regs amended from April 17 anyway? So really in these cases you are talking about pre April 17 periods only? which decision you focus on as the test-case does not matter if that is right? ie you are still caught by para 17 of Sch 7 to CSPSSA in any event?
Sorry just trying to think this through- not expressing a view at this stage as to whether the anti-testcase rule does bite….
Ah yes, very good point that! (Face palm). So it’s all somewhat academic, at least as far as precise Carmichael look-alikes are concerned.
But the decision is also precedent for the making of HRA-compliant decisions generally where the “manifestly without …” threshold is met[ Edited: 9 Jan 2020 at 12:47 pm by HB Anorak ]
But the decision is also precedent for the making of HRA-compliant decisions generally where the “manifestly without …” threshold is met
Yes- and on the face of it then it does look like the relevant date for those might be the SC judgment in RR. This is rather annoying as it is exactly the same issue as in Carmichael (No. 2).... I have not thought whether there would be some way around this. Clearly such a reading goes beyond the purpose of the anti-test case rule simply due to the peculiar litigation history. But it does seem on a plain reading that this is what it says.
The DWP has just issued an urgent bulletin about the Supreme Court’s decision in RR which says that -
The ruling to dis-apply secondary legislation only applies to those individual Carmichael/Rutherford lookalike stayed cases regarding the retrospective payment of housing benefit following the subsequent change in legislation.
Also advises HB departments that -
There are a number of lookalike appeals in the First Tier Tribunal and Upper Tribunal. These were stayed whilst the Supreme Court considered the RR case. The tribunals will now be deciding these cases in line with the decision in RR. That is likely to require payment of additional HB to those claimants.
LAs do not need to take any proactive steps to identify cases following this judgment; we expect the tribunal to contact you in relation to any relevant cases where payment of HB arrears are appropriate.