"but I don't think a Tribunal will thank you for a Human Rights Act challenge to the regs, if you can find one."
They may not thank you, but tough - if there is a challenge which has genuine merit, there's no short cut to getting it before the UT/CoA/HoL that can by-pass the first-tier tribunal.
I had a similar case (prospective HRA/DDA challenge) recently and would, if possible, proceed as follows;
1. Don't have barrister on standby - get their written opinion/advice now, in advance of tribunal hearing.
2. Sub to tribunal, acknowledging that it can only apply the regs and that therefore appeal must fail.
3. But ask for a hearing so that there is an agreed set of facts - give notice to tribunals service and dept/LA that this is your intent and effectively invite the other side to collaborate with you and tribunal in arriving at agreed statement of facts.
4. Your sub should also outline HRA case, include counsel's opinion and ask tribunal to dimiss appeal whilst at the same time granting you leave for UT appeal on the agreed statement of facts so that HRA case can be put.
Basically, that's the way I proceeded and tribunal were happy to go along with this - only difficulty was that we had to ask for adjournment of first hearing because counsel's opinion not yet drafted and it then didn't turn out to be all I had hoped.
I'm recommending getting counsel's opinion in advance because it's the key to getting tribunal to agree to point 4.
|