I have a case involving a single parent whose HB/CTB was suspended over a year ago after the LA received (quite strong) circumstantial evidence that she was cohabiting. They eventually refused the claim outright and client appealed and submitted a new claim. The authority have never visited my client to do a cohab interview to confirm the conclusion from the circumstantial evidence.

They passed the info to the DWP who stopped the IS in October 04. Under the threat of court action the DWP undertook a cohab visit and have now reinstated the client's IS, but the LA have just refused the new claim.

The client now has nearly £5000 of rent arrears. I'm prepared to accept that for the old claim we have to argue our case at tribunal, but I'm running out of ideas as to how we can get the LA to accept some moral responsibility and investigate my client's circumstances properly so she can at least meet her ongoing rent committment. If they do that, they'll see, just like IS has, that she is not, in fact, cohabiting.

How can we get LA's to stop 'taking things personally' and be properly inquisitive in the decision-making process?

Any and all ideas welcome.

Thanks.

Sounds like a really good case for a Judicial Review. If your client has done all that is reasonably expected to provide all the information in relation to a claim then the claim must be determined. If it cannot be determined then a payment on account must be made within 14 days.

See R v London Borough of Haringey, ex p Azad Ayub.

Thanks Stephen,

JR not appropriate. The LA eventually decided the suspended claim last year after we threatened JR, and they have now decided the new claim against the client after I pointed out that failing to adjudicate is unlawful. Therefore JR not appropriate. I need a way to persuade them to get rid of their chip and take a serious, inquisitive look, at my client's claim.

PLP have been helping me with this case as we considered JR against the DWP (which is what prompted the HV and the new claim being awarded). I have asked PLP if there is scope in JR'ing the LA on reasonableness grounds (for not doing a cohab interview) bearing in mind the level of rent arrears, but I suspect this won't be an option. JR is not usually appropriate where there are alternative remedies (i.e. appeal).

Tony

Your client should appeal the new HB decision and ask TAS to list both appeals together. Then ask the LA for an expedited submission and ask TAS for an expedited hearing on grounds of potential eviction if matter not sorted out soon.

If you think LA have acted negligently in failing to make proper enquiries or have taken irrelevant considerations into account then either is ground for judicial review. Send a letter before action stating your client’s intentions and send a copy to the LA’s legal department. You may also want to involve your client’s local councillor/MP.

Usually, LA’s legal officers do not like being put in the position of having to defend in court sloppy practices of the administrative officers. Thus a word from the legal dep’t to the relevant section usually gets the ball rolling.

Finally, the burden of proof is on the LA to produce evidence of co-habitation and cannot rely on rumour and innuendo alone. Only a thorough investigation of the claimant’s circumstances as a whole will be sufficient.

Regards
Paul

Tony

I wrote my reply before your response to Stephen was posted, so some of it will not be relevant.

However, JR may still be applicable to get the HB refusal decision quashed if grounds as outlined in my original post exist.

Regards
Paul

The LA did not have grounds to end HB as your cleint was receiving a passporting benefit and that is decisive (see R v Penwith DC ex p Menear 18 October 1991)

As the DWP have considered that matter and decided for you client, the LA is not entitled to make its own independent in these circumstances.

Meanear is available on rightsnet

http://www.rightsnet.org.uk/pdfs/menear.pdf

However, Ch1502/2004 may be relevant if the allegation is that the claimant is cohabiting with her landlord.

stalbansbens is correct re CH1502/2004 (now reported as R(H)9/04).

If the claimants alleged cohabitee was also her landlord the burden of proving the grounds for ther superseding decision (ie the cohabitation) would still be on the Council.

If you do have to go to Tribunal because the alleged partner is the landlord, I would ask the chair to direct that the papers relating to the DWP decision are provided for teh simple reason that the DWP gave the facts proper consideration and the LA appear to be making decisions with inadequate reasons to support them.

On the face of it I still think a JR pre action protocol letter to the Counil's legal department would be a good first step to take

Thanks for all replies so far.

I will certainly look at the 'must award on qualifying benefit' approach advocated in the 'menear' decision, but more research required - I have vague memories of a later decision giving the opposite judgement, that authorities are entitled to consider entitlement decisions independently of an IS/IBJSA award.

I'm still not convinced that JR is an appropriate remedy. On what grounds would you consider such a challenge? The decision has been made and the client has a right of appeal... I am in the process of attempting to get the home visitors notes from DWP and will include this as evidence, but the issue is the council's stubborn approach to the fulfilment of the burden of proof. I think it might be worth a complaint with a follow up to the ombudsman, but I know from experience that ombudsman investigators have trouble distinguishing the nature of a non-appealable complaint (lack of investigations) that they can deal with, from appealable decisions (not entitled because co-habiting) that they can't deal with, and they are reluctant to get involved.

If the LA won't recognise the DWP's decision and still refuse entitlement all we can think to do is use the 14-day decision or interim payments rule to force decisions and appeal each one with a new claim. We could continue this until the authority get fed up with all the additional paperwork and start taking the client seriously. This isn't an ideal remedy though because the client is close to eviction and it makes a lot of work for us (and the authority - to the disadvantage of other claimants).

I suppose we could threaten the JR approach and a couple of you have mentioned the council’s legal department. How would you structure your approach to the legal department to ensure the best response?

Any more ideas welcome. Thanks again.

The later decision is a Court of Appeal decision R v South Ribble DC v Hamilton. Its available on Rightsnet

http://www.rightsnet.org.uk/pdfs/hamilton.doc

I dont think you need to worry about it because the Hamilton decision was that the LA may be able to look behind the DWP decision if it had real evidence that the IS claim was fraudulent. This is not so in your case because the DWP have considered the issue of cohabitaion and decided in favour of your client.

JR is possible if the LA have refused to decide your clients claim and simply refused to make a payment.

If the LA have made a proper decision they should notifying that decision giving appeal rights.

JR is possible if the LA refuse to act lawfully

Following on from the JR point. There is a case (Calvely v Chief Constable of Merseyside - I think - but I will check that) that allows for JR when there is an alternative remedy available but where the availability of that alternative remedy would be so delayed as to lead to a denial of justice or some other severe outcome.

Imminent eviction may provide such a ground.

Regads
Paul

Thanks everybody for your helpful replies. The court decisions quoted have been incorportated into a letter of claim which I am sending today. Should this fail, we will be making an application for JR.

I think we have a strong enough case to persuade the authority to change thier position.

Thanks again, folks!

The case I referred to is R v Chief Constable of Merseyside Police, ex parte Calveley, anors, 1986, which states: -

" In Ex parte Waldron (1985)......Glidewell LJ......said:

Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than procedure by way of judicial review; whether the matter depends on some particular or techical knowledge which is more readily available to the alternative appellate body; these are amongst the matters which a court should take into account when deciding wheyher to grant relief by judicial review when an alternative remedy is available".

Regards
Paul

Well, well... There is a God!!

My letter of claim went on 10 March and I have a letter today dated 11 March awarding my client HB/CTB.

Thanks again all for your assistance. What a great website this is!!

Tony