When is Judicial Review Available as a Remedy in Relation to Housing Benefit Issues Where There are Possession Proceedings for Rent Arrears?

Desmond Rutledge considers the scenarios in which judicial review is available as a solution to certain housing benefit issues and provides specific examples of housing benefit decisions that are susceptible to judicial review.

Where possession proceedings for rent arrears are based on discretionary grounds, there may be a defence based on reasonableness if a substantial housing benefit issue is outstanding: Haringey LBC v Powell (1995) 28 HLR 798, CA. Public funding, however, is no longer available to help resolve such housing benefit issues as welfare benefit is one of the categories of law taken out of scope by the cuts introduced by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), para 15 of Part 2, Schedule 1 of LASPO. See also para 107 of ‘Frequently Asked Questions: Civil Legal Aid Reforms (Legal Aid Agency: v1.3 19/04/13).

This is problematic for housing lawyers defending possession proceedings. Firstly, because the ability of the Advice Sector to undertake complex welfare benefit case work has been greatly diminished and, secondly, because entitlement to housing benefit cannot be raised as a defence in an action for possession: Waltham Forest v Roberts [2004] EWCA Civ 940 [2005] HLR 21.

Public funding remains available to undertake a judicial review in relation to housing benefit, if the usual criteria are satisfied: see regulations 39, 53, 56 of the Civil Legal Aid      (Merits Criteria) Regulations 2013 (SI 2013/104). See also para 108 of ‘Frequently Asked Questions: Civil Legal Aid Reforms (Legal Aid Agency: 19/04/13). The judicial review could be covered by the Housing Category, as it “relates to the underlying
substance of the case
”, or it could be covered by the Pubic law Category:
see Category Definitions in the Legal Aid Manual Civil Contracts Volume 2, July
2013 at 2C-411.

As with any application for judicial review, the claimant needs to identify the housing benefit decision, action or failure to act on the part of the housing benefit authority that is unlawful (CPR 54.5(2)), and warn the housing benefit authority in advance that judicial review will be sought unless the decision is amended or the authority does the thing that the claimant says it is legally required to do (see the Pre-Action Protocol for Judicial Review).

Generally speaking, judicial review may be an appropriate remedy where the housing benefit decision is the principle cause of the rent arrears but the decision does not carry a right of appeal or, the rent arrears are due to a failure on the part of the housing benefit authority to issue a decision or to take action on a claim.

Some examples of housing benefit decisions that are susceptible to judicial review are set out in the table below. In these scenarios, the Administrative Court could grant relief in      the form of an interim order requiring the housing benefit authority to reconsider its decision in the light of the legal arguments advanced by the claimant.

It is well known that a claim for judicial review is meant to be a remedy of ‘last resort’. (R (McIntyre & Anor) v Gentoo Group Ltd [2010] EWHC 5 (Admin), para 108). Accordingly, in cases where there is a right of appeal against the housing benefit decision, then the claim form (and pre-action letter) will need to explain why judicial review is still considered to be an appropriate remedy despite the availability of a right of appeal to a First-tier Tribunal.

Given the imminent threat to the claimant’s home in possession proceedings there may well be exceptional cases where the consequences of having to wait for the statutory appeal to be heard are so serious that it would not amount to an ‘effective’ alternative remedy: see the Lord Chancellor’s Guidance in the Legal Aid Manual Volume 3 (July 2013), para.7.37.

The following combination of factors are likely to be relevant to whether judicial review is an appropriate remedy when there is an outstanding appeal to a tribunal. Cases where:

  1. The landlord has refused a request for an adjournment to enable the housing benefit issues to be resolved; and
  2. There is no hearing date fixed for the housing benefit appeal in the near future despite requests to expedite the case; and
  3. The merits of the public law challenge to the Housing Benefit decision or inaction are such that a strong prima facie case can be made out.

In these types of case the Administrative Court can provide relief in the form of an interim order preventing the landlord (or county court) from proceeding with the possession claim and requiring the housing benefit authority to reconsider its decision in the light of the legal arguments advanced by the claimant.

NB: According to official figures, only 11 legal aid certificates were issued for Welfare Benefit judicial review in the period from March 2012 to February 2013: Source, Legal Aid Agency: – In the material for those applying for a contract in ‘Welfare Benefits Services from October 2013’: FAQ Version 2 updated 24 June 2013.

Housing Benefit Issue Public Law Ground Reference Material
Failure to make a payment on account (in rent allowance cases only) Failure to carry out a mandatory duty Housing Benefit Regulations 2006 (SI 2006/213), reg     93R v Haringey LBC ex p. Ayub [1990] 25 HLR 566, (QBD)

2

Failure to make a decision on a HB claim (e.g.. treating claim as     defective due to a failure to provide information) Failure to carry out a mandatory requirement and/or breach of     Article 6 ECHR R(H) 3/05Urgent Bulletin HB/CTB U9/2004

3

Decision purporting to terminate benefit following a suspension of     payment is invalid due to non-compliance with the proper procedure (e.g..     failure to give a one month deadline) Failure to carry out a mandatory procedural requirement The Housing Benefit and Council Tax (Decisions and     Appeals) Regulations 2001 (SI. 2001/1002), regs 11, 12, 13 and     14. CH/2995/2006 and R(H) 1/09

4

Refusal to carry out an any time revision based on official error     (e.g.. following a request to reduce a NDD imposed at the maximum rate     based on absence of evidence regarding a young person’s income) Error of statutory interpretation (where there is no alternative     remedy) HB/CTB(DA) Regs 2001, reg 4(2)(a).Beltekian v City of Westminster and Secretary of     State for Work and Pensions [2004] EWCA Civ 1784 (reported as R(H) 8/05)

5

Failure to establish grounds for ending a HB award (e.g. no grounds     to supersede existing award, based solely on a ‘passporting benefit’     ceasing) Failure to carry out a mandatory procedural requirement /     misdirection as to a statutory power Schedule 7 to the Child Support, Pensions and Social     Security Act 2000, paras 3, 4 and 11HB/CTB(DA) Regs 2001, reg 4, 7.CH/3736/2006

This article originally appeared on the Garden Court Chambers Social Welfare Law Group website.

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