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Benefit Cap Appeals
Hi,
Has anyone submitted a Benefit Cap (housing benefit) appeal?
Does anybody have any thoughts on making an appeal on the basis that, given that one of the only ways that a tenant could avoid the benefit cap is by working and claiming working tax credit, it would be unfair for a local authority to reduce the housing benefit award of any single parent with a child under the age 5 (or of anyone who is a carer and in receipt of Income Support)?
Any idea?
Lee
[ Edited: 25 Sep 2013 at 08:51 pm by Lee Forrest ]I think that any appeal against the fairness of legislation correctly applied by an LA would need to be by means of judicial review rather that FTT.
Even if the FTT judge were to agree that the legislation was unfair there is no remedy they can apply. They cannot amend the legislation. (Nor can a UT judge for that matter)
I think that any appeal against the fairness of legislation correctly applied by an LA would need to be by means of judicial review rather that FTT.
Even if the FTT judge were to agree that the legislation was unfair there is no remedy they can apply. They cannot amend the legislation. (Nor can a UT judge for that matter)
Yes, silly me. I see the hearing is listed for early October, so it won’t be long. Single parent families with children under 5 should certainly be exempt from the cap, along with single carers.
As well as everybody else…
[ Edited: 26 Sep 2013 at 05:53 pm by Lee Forrest ]Much as I hate to say this, any appeal re the cap is likely to be struck out because S97(6) of the Walfare Roform Act 2012 provides:
“(6) In Schedule 2 to the Social Security Act 1998 (decisions against which no appeal lies) after paragraph 8 there is inserted—
“Reduction on application of benefit cap
8A A decision to apply the benefit cap in accordance with regulations under section 96 of the Welfare Reform Act 2012.”
A Court or a Tribunal can strike down secondary legiislation but cannot strike down primary legislation. The most you could get from the Courts would be a declaratiopn of incampatability with the European Convention of Human Rights (in this case I presume Article 6 the right to a fair hearing by an independent tribunal)
On the other hand, I suppose you could argue that the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations are not enabled by the 1998 Act but by paragraph 6 of Sch 7 of the Child Support Pensions and Social Security Act 2000.
Yes I had noticed that: you would have expected the equivalent of Schedule 2.8A in the 1998 Act to have been added to para 6(2) of Schedule 7 to the 2000 Act, or the Schedule to the HB&CTB; D&A Regs. So whether deliberately or by accidental oversight, it seems there is a right to appeal against anything decideed by the Council in a benefit cap case. Here it is important to look at the HB Regs themselves as opposed to DWP circulars because despite all the admin arrangements involving “apply cap” notices and so on, as a matter of law it is the Council’s decision whether or not the cap should apply - the DWP’s apply cap notice merely requires the Council to consider whether to apply the cap.
The cap applies as part of an HB awarding decision, and it seems to me that the decision could be appealed on any of the following grounds:
- the claimant is exempt from the cap
- the cap has been applied to or from the wrong date
- the amount has been calculated incorrectly
Extremely useful- thank you.
It’s the “determine whether” bit that I was getting at - the apply cap notice requires the Council to determine whether the cap applies, but if in the Council’s judgment the claimant is not suitable for capping its determination will be that the cap should not apply.
It doesn’t say “the relevant authority shall apply the cap in a case where it has received notification from the Sec of State that the cap is to be applied”. The final decision whether to apply the cap is made by the Council and that is why it is appealable. Obviously if the decision is correct the appeal will be a waste of time.
My reading of reg 75B is that the council must apply the cap if instructed, but has discretion otherwise
Forgive my ignorance but which 75B regs are we talking about here, HB, WRA or other, please could someone clarify.
Cheers
It’s in the HB Regs - at page 115 of this:
http://www.dwp.gov.uk/docs/a8-2501.pdf
The way I read it, the cap applies where the Council determines that it should (Reg 75A); and the Council is required to determine whether the cap should apply if DWP tells it to (Reg 75B). DWP is supposed to have adequate data cleansing checks in place to ensure that it will only tell the Couincil to make a determination in cases where the cap definitely should apply, but the decision to apply the cap is made by the Council and as a matter of law the Council has the authority to determine that the DWP has made a mistake and the cap should not apply in a particular case. This is because the Regs are drafted in such a way that the cap applies as a result of the Council’s determination.
For those reasons, I maintain there is technically a right of appeal against the Council’s determination to apply the cap, but I acknowledge that in most cases the appeal will not succeed because the decision will be correct.
JR of the application of the benefit cap, is in the High Court today ...
The JR, which will run until Friday, claims the benefit cap is discriminatory, breaches human rights legislation and is irrational.
And here’s info from CPAG on their interviention in today’s JR ...
http://www.cpag.org.uk/content/benefit-cap-cpag-intervention
The BBC report that the lone parents have lost their challenge to the benefit cap in the High Court http://www.bbc.co.uk/news/uk-politics-24818747
[ Edited: 5 Nov 2013 at 10:48 am by tony benjamin ]judgment on bailii now -
http://www.bailii.org/ew/cases/EWHC/QB/2013/3350.html
rightsnet news story to follow
This is such a shame. I’m currently helping a single father of 6 children. His youngest child is three years old. He and his children are under occupying their property, and their income is capped at £500 per week, creating a housing benefit shortfall of around £125 per week (rent is £150 per week for a 6 bedroom house).
He is currently getting a DHP of £50 per week (a 3 month award).
- He is bringing up a family. One of the only ways he will be exempt from the cap is to work (although he is entitled to Income Support for the next two years) and claim Working Tax Credit (ultimately costing the state more).
- He will be entitled to a 5 bedroom house in 1 years time, due to his oldest daugher reaching 16 (presently she is ‘expected’ to share with her youngest sister, despite being in the middle of her GCSE’s)
- If he has to move from his 6 bedroom property to the private sector, his Local Housing Allowance entitlement is, guess what, £150
It’s completely ludicrous.
[ Edited: 5 Nov 2013 at 02:15 pm by Lee Forrest ]Still, I’m hoping this will be useful:
“53. This latter issue was considered by Geraldine Andrews QC (as she then was; now Andrews J) sitting as a Deputy High Court judge in R (Best) v Oxford City Council [2009] EWHC 608 (Admin). She held that where a local authority owes an applicant a full housing duty, that duty is not discharged by the provision of accommodation which is unaffordable. The judge also held that where an applicant through his own fault fails to obtain a benefit to which he is entitled, the housing authority may be entitled to reach the view that he has made himself intentionally homeless. We agree. But it seems to us inconceivable that an applicant, whether already housed or seeking housing, could properly be regarded as intentionally homeless where the rent has become unaffordable simply through the application of the benefit cap. Moreover, it would no longer be reasonable to expect them to remain in the accommodation. There will of course be cases where the question arises whether the reduced income resulting from the application of the cap is the real reason for being made homeless, but that does not affect the principle. “