I have been working with one or two RSLs on the business of local authorities recovery targetting. Recently came across a case of a London LA using the Tribunal of Commissioners decision CH/5216/2001 as authority for recovery from the landlord, on the basis that in the 3 cases under it's particular scrutiny, it was found that the decison to pursue the landlord was correct. This is very worrying, since we know that the point of 5216 was to confirm the possibility of challenging the selection decision. The fact that the particular cases found in favour of landlord recovery is surely missing the point.

On the general issue of recoverability, Chiltern appears to have been overshadowed by 5216, which does not seem right, given that Chiltern does not seem to restrict to JR grounds as appeal criteria (unless I have got this wrong). In the long term, challenging landlord targetting will hopefully assist tenants, because it means local authorities will need to be more efficient.

Steve

In my view, there is a clear distinction between the Chiltern court case and the subsequent CH/5216/2001.

In the briefest possible summary (probably dangerously simplified), Chiltern decided that there was a right of appeal, but did not fully address to what extent. CH/5216/2001 then dealt with the issues that were not before the court in Chiltern.

Regards

I think a careful reading of Chiltern does indicate the extent of the right of appeal. Lady Justice Hale said "There is to my mind no real ambiguity about the statutory position.....appeals are against decisions, not against the basis or grounds for the decision......There would be no power to choose (from whom to recover) without Regulation 101. The exercise of that power of choice must be a decision under that regulation. It is quite clear that the legislation contemplates a right of appeal against the exercise of a discretion in this context."

Everyone knows why the DWP brought the appeal in the Chiltern case, and everyone knows what the Court of Appeal meant by its decision. It's a shame that a Tribunal of Commissioners chose to muddy the waters. It's also a shame that the DWP didn't appeal the Commissioners' decision - but at least we know that the DWP is planning to amend the HB Regulations to give landlords clear appeal rights.

CH5216/2001 is now reported as R(H)3/04 and in my view many LA's are now misinterpreting that decision to mean that landlords effectively do not have a right to appeal on the question of the target for recovery.

I have 3 cases coming up at Tribunal before Righard Poynter on 8 November. He invited additional submissions in view of R(H)3/04. So far, the LA concenred has not produced any additional submission.

I have argued that the LA fettered its discretion by not considering all the relevant factors, and exercising that discretion in the terms of the statutory language in such manner as the justice of the case requires (see R(U)8/74 para 20)

I have also argued that as Regulation 77(4) (4A) and (5) of the Housing Benefit (General) Regulations confers the right to a statement of reasons It follows that the principles set out by the Commissioner in R(A)1/72 (para 4 -5) apply equally to HB decision making.

If LA's do not give adequate reasons for their decisions as to the target for recovery either in the initial decision letter, or in any subsequent statement of reasons, it will render the decision open to a challenge on JR grounds. (see also para 15 of the appendix to R(SB)13/86)

Stainsby:

Yep, I agree that some LAs are indeed using R(H)3/04 as a basis to try and refuse giving appeal rights. I also agree that those LA's are wholly in the wrong.

As for SORs, it has surprised me over a number or years that more L/Ls don't ask for FULL SORs as to how the O/P was calculated and/or the dates / timeline on when relevant events occurred (e.g. when were the LA notified of the change / by whom / how / date when LA dealt with the change / reasons for delays / reason for target etc). Where LAs fail to provide a proper SOR (or none at all), I'd (normally) fully expect the LA to come unstuck, albeit not until Tribunal or, inevitably in some cases, Comms.

As an aside, I'm also struggling to get one or two LAs to recognise that appeal rights must now be inluded in "insufficient info" cases (courtesy of CH/2155 et al). Same mentality - "...well, we've always done it this way here..." or "...that's the way we do it here...". I'm currently waiting for an LA to formally refuse to send such a case to TAS ("...we don't have to..." - as in "It's our decision about whether it's an appeal blah blah....").

Hmmmmm..... Monday rant over.

Regards

The DWP has just issued to all LAs Information Issue 07 04 in which it briefly summarises the effect of the Tribunal of Commissioners decision as
“It is not open to the claimant landlord to challenge the LAs decision to proceed against him unless he can show that it has exercised its powers improperly or unlawfully”

It also includes CH/2741/03 in which J P Powell (in Para 13) gives some guidance of the need for evidence where a blanket policy is alleged. (He also said that although it is assumed that any such blanket policy would be unlawful, that it is only an assumption.).

CH2741/2003 is not on the Commissioners website, if you have a copy, could we see it published here?

hi jmbery,

if you could e-mail LA Information Issue 07 04 and CH/2741/2003 to us, or fax it to us on 0207 247 9924, we can publish them on rightsnet.

I have not read the tribunal of commissioners decision so just a few general thoughts!

“It is not open to the claimant landlord to challenge the LA's decision to proceed against him unless he can show that it has exercised its powers improperly or unlawfully” - DWP.

Surely, unless the tribunal of commissioners decided that the Chiltern Warden case has been wrongly decided and should not be followed, then they are bound by it.

Second, the DWP argument is a circular one. It is precisely to see if the LA have exercised its discretion (from whom to recover) judiciously, that a right of appeal exists. Whether the appellant can show that the LA has not exercised its powers properly or lawfully is a matter for the tribunal to decide.

Thus, Chiltern Warden gives a landlord a right of appeal to attemt to argue that the LA has not exercised its discretion judiciously. I cannot imagine that the tribunal of commissioners has negated that right although they may have laid down guidelines on how future tribunals should approach those cases.

Finally, it is well established law that pursuance of a blanket policy would be grounds for judicial review.

Or have I missed something?

I have faxed a copy of CH/2741/2003 as requested.

Another interesting point, although not connected specifically to landlord recovery, is made in para 14. J Powell says that a delay of 2 weeks in the Authority acting on notification of a change in circumstances does not make the OP Official Error.

Nevip:

Sorry to be pedantic, but my first post in this thread stands - there is a clear distinction between what was dealt with in the CoA Chiltern case and the subsequent Trib of Comms decision.

The DWP's quote is, unfotunately, not (in my view) an accurate representation of the Regs or the outcomes of the two legal cases in question. To take your example of blanket policies, that is still unlawful in itself and therefore would still be a JR ground.

What has now changed / been confirmed (depending on your perspective) is that it is not enough for L/Ls to simply say something like "it's not fair". Their arguments must be around errors in law. As Stainsby regularly points out, errors in law include unreasonableness, so if an LA fails to consider ALL of it's options and or relevant factors as to the target for recovery, that MAY constitute an error in law.

Also, as mentioned earlier in the thread, a L/L has every right to require an LA for all info as to the calculation of the O/P to ensure the amount is correct.

Erm, does the above help?

Regards

Kevin
The DWP quote turns out to be a direct lift from J Powell (again).
This time in CH/2742/2003

Hmmmm... the dangers of trying to be concise(ish) in forum postings....

I should have referred to the quote in terms of context.... I still think it confirms that L/Ls do have the rights I've mentioned.

Regards

CH2742/2003 is another decision that is not on the Commissioners site (nor is it on HBinfo).

The Commisioners say that they will post decisions on their site that raise matters of interest, yet I have come accross a significant number of instances where the DWP cite decisions in their guidance to LA's that are not generally available.

Do the DWP and the Commissioners differ in their views as to which decisions are important?

Thanks to jmembry, the DWP's LA Info Issue 07/04, CH/2741/2003 and CH/2742/2003 are all now available on rightsnet.