I need to brain storm this one, any ideas thoughts gratefully appreciated!

Client (40) single, no dependants. Mental illness, DLA LRM MRC, IS inc DP and SDP. Evicted from Private rented accomodation currently living in his car. DWP get wind of this and revise his IS entitlement to remove DP and SDP.

IS Regs state that a person is only entitled to the basic allowances (ie no premiums) if they are "without accomodation". CIS16772/1996, reported as R(IS)23/98 is categorical is stating that a car is not "accomodation".

Client has lodged his own appeal which I have not seen, awaiting revision stage and submissions.

CPAG handbook (p734) states this may be challengable under the HRA...

My only thought so far is that following hte recent decision stating that means tested benefits are "possessions" under the convention could this be challenged on the basis that it is discrimination under Art 14 under the "other reasons" category of discrimination, in this case, discrimination against homeless people.

Any thoughts?

Is there an argument under Art 3 that leaving him with no more than the personal allowance is inhumane or degrading treatment?

The HofL decision today about asylum seekers implies that leaving anyone to live on the streets without money is potentially a breach of ART 3. He's still got an income of over £100 per week, which probably weakens it, but his health issues must lower the threshold of what is inhumane or degrading.

I'd have thought the possessions/Art 14 argument was the best bet.

from cpag site -

'R on the application of M ex parte Secretary of State for Work and Pensions

This case is a challenge to the lawfulness of Paragraph 6 of Schedule 7 to the IS Regs which precludes people without accommodation (whether single or couples) from receiving any premiums in their income support or income-based JSA.

The challenge is on the basis that the rule discriminates against homeless claimants and is in breach of their rights under Article 14 taken together with Article 1P Human Rights Act 1998.

Permission to apply for judicial review was refused on the papers. The oral application for permission will be heard on 25/11/05.'

Thanks to you both. Shawn - you are a star, I'll keep my eye on the CPAG case...at least it sounds as if I was on the right lines. Don't you just love being on the cutting edge!!

Steven

I did have some further thoughts on this one...from my clients perspective the HR incompatibility of the regs is unlikly to be of much direct benefit unless a case like the CPAG one was successful and clients like mine were offered ex gratia compensation. What may be more direct benefit is if we try and argue that R(IS)23/98 can be departed on the basis that it was before the implentation of the HRA.

Will keep you posted

If your client has put in an appeal I suspect that it will be put on hold waiting for the CPAG case but, if that is successful, I don't think its an issue of being paid compensation, s/he should actually be paid the benefit.

I'm not sure your latest argument would help much because in essence you're still arguing that the removal of premiums is a breach of HRA.

Hopefully the CPAG case has a good chance of success, I can't see how the government could objectively justify the non payment of premiums (premia?) to people without accommodation. Presumably the only stumbling block was whether means tested benefits count as possessions which has now been sorted.

Yes and no! If am right (and it has been known that I'm not!) then if the test case is successful the court will be able to issue a declaration of incompatibility with the ECHR under the HRA. Problem is that the declaration in itself does not change the law, it only puts pressure on the govt to explain themselves or to issue new laws. As laws cannot generally be made retrospectivly it follows that homeless claimants still loose out until the law is changed.

I think the rule about not paying homeless people premiums is actually contained in a regulation which can be disapplied under HRA. Its only Acts that you need to get a declaration of incompatibility on. Small disclaimer; I only 'think' thats correct, its too late on a Friday to go actualy checking things! Willing to be shot down in flames on Monday if appropriate.

Thanks Andy...I feel some research coming on!

Yes, Andy. You are right.

Secondary legislation may be struck down. Primary legislation cannot.

Further update...CPAG were granted leave on 25/11/05 and the case is on the warned list.

high court judgment now out .... application for JR dismissed, but claimant has applied to the Court of Appeal for permission to appeal further ....

... see today's rightsnet news .....

Thanks shawn.

In my case I was aware of the JR refusal and CPAG confirmed to me that the appellant in their case had applied for leave to appeal. I requested a further postponement of my appeal, which was refused! Tribunal was held a few days ago, awaiting the decision but no prizes for guessing what that will be. Will be considering an appeal in due course!