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  EWCA Civ 940  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  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:
- The landlord has refused a request for an adjournment to enable the housing benefit issues to be resolved; and
- There is no hearing date fixed for the housing benefit appeal in the near future despite requests to expedite the case; and
- 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.
This article originally appeared on the Garden Court Chambers Social Welfare Law Group website.