High Court in Northern Ireland grants interim relief pending full hearing delayed by COVID-19 to prisoner challenging housing benefit temporary absence rules

Taylor, Re Application for Judicial Review [2020] NIQB 46

In two decisions, the High Court in Northern Ireland has granted interim relief to a housing benefit claimant - who was detained in prison and brought a challenge against the temporary absence from home rules - pending a full judicial review hearing that was delayed due to coronavirus (COVID-19).

In Taylor, Re Application for Judicial Review [2020] NIQB 46 (1 May 2020) and [2020] NIQB 52 (22 June 2020), Mr Taylor was a remand prisoner in HMP Magilligan who had spent an overall period of less than 52 weeks away from his home as a detainee, and had moved between being a remand prisoner, a serving and remand prisoner, and then back to a remand prisoner. His time as a serving prisoner related to a sentence of 32 weeks, of which he was required to serve at least 16 weeks.

As a result, his housing benefit claim was cancelled by the Department for Communities (the respondent) on the ground that he was absent from home for more than 13 weeks, under regulation 7(13) of the Housing Benefits Regulations (Northern Ireland) 2006. He challenged the decision by way of judicial review, arguing that the failure to grant him entitlement for the longer time frame of up to 52 weeks as a remand prisoner under regulation 7(16)(c)(i), was not compatible with Article 8 and/or Article 1 of Protocol 1, read with Article 14, of the European Convention of Human Rights.

While a decision to expedite the hearing was made in early March 2020, it was delayed due to COVID-19, with a remote hearing finally scheduled for mid-June 2020. The applicant applied for interim relief to receive payments equivalent to his housing benefit pending the hearing. This application was decided on 1 May 2020, while a second application made after the scheduled hearing date was decided on 22 June 2020.

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Determining the first application, Judge Friedman highlights the importance of interim relief in the case because the home could be lost if the rent was not paid pending a full judicial review hearing, thereby undermining the underlying purpose of bringing the case in the first place.

In addition, in granting leave, Judge Friedman sets out reasons why he is satisfied that there may be merit in the applicant's case -

‘… the application disclosed an arguable case of what might turn out to be a successful challenge once further consideration is given to the issues at the full hearing. Without considering the law and evidence in greater detail it would appear that the timing and manner in which the various charges were brought against this particular Applicant could have caused him to serve less than 13 weeks as a sentenced prisoner that would not then have stopped the clock in the way in which it has.’ (paragraph 16)

Going on to consider the relevant legal principles that apply when deciding interim relief in public law - including the standard American Cyanamid [1975] UKHL 1 criterion of whether there is a serious question to be tried; the ‘balance of convenience’ of each party; and whether there are special factors pertaining to the case - Judge Friedman decides that, in the circumstances of this case, interim relief should be granted, observing that -

‘The Applicant has primarily sought an order that would enable rent to be paid on his Belfast home in May and June, which would come to £850. As there is legislation just about to go forward for Royal Assent [the Private Tenancies (Coronavirus Modifications) Bill 2020] that could prevent eviction for up to three months, it has been suggested by the Respondent that the need for any order may be removed altogether. As that legislation is not yet passed, although I assume it will obtain Royal Assent during early May, I am clear that overall justice and convenience requires an immediate initial order for payment of £425 for the equivalent of one month’s rent which is just about to be due on the first day of the month …

If for whatever reason it turns out not to be possible to list the substantive hearing in June, I will entertain a further application to extend the order for a short period of time, and consider any fresh information.' (paragraph 30 and 32)

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Subsequent to the first decision, the respondent successfully applied to vacate the hearing scheduled for mid-June 2020 on the grounds that it could not properly obtain the evidence it needed to support its defence, some of which related to policy decisions that were made in Great Britain, due to administrative limitation imposed by the COVID-19 outbreak.

As a result, the applicant sought interim relief a second time, and the application was decided by Judge Friedman (in [2020] NIQB 52) on 22 June 2020.

Having considered the respondent’s renewed arguments against granting interim relief, Judge Friedman exercises discretion in favour of the applicant to grant further relief, holding that -

‘Interim relief in judicial review of benefits disputes is unusual. Expedition ought normally to be the answer, and the Applicant accepted it to be the answer at the time of the leave hearing. Ruling 1, ([2020] NIQB 46) which was only sought in an extreme situation, made clear that relief was granted ‘… because of special considerations pertaining to this test case litigation and only after its case management has become caught up in the midst of a public health emergency.  I very much exercise my discretion based on an overall conclusion of what is ‘just and convenient in the circumstances’’ (§32).

… I conclude that the same circumstances that justified the previous ruling remain, save that for causes beyond its control the Respondent could not comply with the case management timetable to enable the newly ordered expedited hearing in June. The situation continues to preclude the court from assessing the relative strength of the case. The ‘balance of convenience’ remains as described in paragraph 25 of the original ruling, such as to justify two additional months payment to be made on the same terms as before. The ‘special factors’ are now only to do with the exceptional case management issues that have arisen in these proceedings alone.  They are the fault of neither party, but it does not follow that the Applicant and his mother should therefore bear the brunt.  As a matter of equity, and in the exercise of my broader discretion in the field of interim relief, I will continue to not rely on emergency housing legislation [the Private Tenancies (Coronavirus Modifications) Act (Northern Ireland) 2020] concerning a private law right, even if now in force, for a tangential purpose arising out of the conduct of public law proceedings, especially at the foreseeable expense of a third party.’ (paragraphs 43 and 44)