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31/10/2013

Trust No-one

The DWP issued a bedroom tax related circular on 30 October 2013. HB U7/2013. The full text is below.

Removal of the spare room subsidy – First tier Tribunal decisions

Background

1. Generally local authorities (LAs) initiate appeals to the Upper Tribunal in HB cases.

2. The Department for Work and Pensions (DWP) may opt to join an appeal or in some cases will take appeals forward where LAs have chosen not to do this. However, in order to do this DWP needs to be aware of the case, and as these decisions are returned only to LAs, DWP are not routinely made aware of these First tier Tribunal (FtT) decisions.

3. DWP needs to get a clearer picture of the number of FtT decisions where the removal of the spare room subsidy is the main issue. LAs are therefore asked to notify DWP of all FtT decisions relating to this subject regardless of whether the decision is overturned or whether you intend to appeal adverse decisions.

Action to take with immediate effect

4. Where FtT have upheld the LA’s decision, forward a copy of just the decision notice to: –HPD.consultations@dwp.gsi.gov.uk

5. Where FtT have made an adverse decision forward the following information for each case:

  •  a copy of the FtT decision notice
  • confirmation as to whether or not the LA intend to appeal against the decision.

6. In addition, for adverse decisions LAs should apply to the FtT for a statement of reasons and send urgently confirmation of the date this request was made, to: –HPD.consultations@dwp.gsi.gov.uk. Once the statement has been received it should be forwarded urgently together with the covering letter from Her Majesty’s Courts and Tribunals Service (HMCTS) to: –HPD.consultations@dwp.gsi.gov.uk

7. These details will allow DWP to consider whether it is appropriate to intervene in a case or to decide if we want to be joined as a party even if the LA is appealing.

This extremely unusual, perhaps unprecedented, circular suggests a number of conclusions, any or all of which may apply.

1. The DWP is deeply worried about FTT decisions and potential decisions in relation to the bedroom tax.

2. The DWP suspects that Councils may not appeal adverse decisions, or at least not with the vim and vigour the DWP would like to see.

3. The DWP intends to appeal, or appeal and then park, a lot of decisions itself (or to be leaning heavily on Councils as intervener)

4. The DWP is having a bit of a panic.

I have a vision of IDS banging his fist on the table, eyes rolling, screaming ‘Appeal them, damn you, appeal them all!’

Of course, that could get rather pricey, but as the DWP has shown, it is willing to go to the Supreme Court, and lose, over regulations it had already replaced and acted to legislate to retrospectively remove the effect of unlawfulness. Money no object…

[Update. The DWP has been granted permission to appeal the Glasgow FTT decision (disability related Article 14 decision, extra bedroom required by disabled tenant). So the Art 14 argument will go to the UTT. ]

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

6 Comments

  1. joehalewood

    Don’t panic Mr Mainwaring was the first thought that entered my head when I read this bizarre (yes even more bizarre than the U6) circular which preceded this one.

    So easy to simply say just how bizarre this is and similarly to have the IDS imagery you describe above. Yet it is far more serious than that.

    IDS and his “I believe it to be right” mentality is not just a source of ridicule it is IDS saying I am above the law and if the b*stard judges overturn my wishes again I will assert my dictatorial supremacy over those bewigged (insert expletives to suit!)

    This is IDS in political terms saying sod democracy and in legal terms saying sod the law. It is far more worrying and much more than the ridicule this is getting it is despotism and the law is whatever the hell I say it is and the local councils will do as I say too.

    There are a few very interesting back stories to this I have become aware of today that I am awaiting full written proof about and from what I have been told councils legal advice received is that the limbo DWP temporarily achieved with the U6 of stopping councils from enforcing FTT decisions through suspension of any decisions has seen LAs take legal advice and lift that state of legal limbo and now are enforcing the FTT decisions as they should.

    You think when IDS finds out he will be doing more than banging his fists on tables? Yes he will be apoplectic

    Just as an aside – why do DWP believe they have a legal right to intervene when a council respondent refuses to appeal? And additionally if the court sees the appellant and respondent happy with the decision what makes the DWP assume they will be given permission to appeal assuming they are allowed to intervene in first place!

    The above two points I have been reliably informed make very interesting legal discussion

    Reply
  2. Andrew Staden

    I rather imagine IDS eating the carpet when the latest FtT decisions land on his desk. This is a comment I left in yesterday’s Grauniad.

    “At the heart of all these social security reform fiascoes is Iain ‘Duncan’ Smith’s IQ. This is a man who was ‘returned to unit’ in the army after seven years as a lieutenant, who then made no headway at all in private industry but managed to secure himself a sinecure in a safe Tory seat, partly on the recommendation of Norman Tebbit, who recognized a fellow unreconstructed right-wing nutjob when he met one. Years later, on the strength of chutzpah, Smith inveigled himself into the leadership of the party, only to be undone by Michael Crick’s revelations about his falsified CV in which IDS suggested degree level qualifications from the University of Perugia, an establishment he had never set foot in. Then came the business with his expenses claim for his wife acting as his ‘diary secretary’ whilst he was leader, which resulted in him repaying £15000 after a Commons inquiry in which his office apparatchiks all bore witness against him. After losing the leadership it became clear to him that he had the skills and capacity to become a novelist and produced a ‘work’ which was strangled at birth by the critics and never made it to paperback. Having given up in the army, in industry, as party leader and as a novelist, he thinks he has the necessary management skills and wherewithal to run one of the largest departments of state and to introduce a ‘welfare revolution’ to boot. And with all those reforms in meltdown, his denial soldiers on unabated: they are ‘on track’ and ‘on time’ and ‘on budget’ when in reality they came off the rails months ago and the cost of them is, to date, calculated in the hundreds of millions.

    Iain ‘Duncan’ Smith, not of the University of Perugia, is a one man catastrophe in the Department for Work and Pensions, just as he has been at every turn of his ‘career’. You could not, to coin a phrase, make it up. But then, you are not Smith: if you haven’t got a double-barrelled name, just make it up; if you haven’t got a degree, just make it up; and if you don’t like the figures they give you, just make up different ones.”

    Reply
  3. Peter Barker

    Probably a mixture of all four, plus also I think a genuine belief that one or two of the FtT decisions are distinctly ropey and the cases really ought to be reheard.

    In answer to Joe’s two legal points, ever since 2001 the Secretary of State has always had the right to appeal to the Upper Tribunal/Commissioners in an HB case – see para 8(2)(a) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. This reflects the fact that HB decision making involves a double act between the LA and the DWP: DWP makes the regs, the LA applies them. If an appeal turns on a point of statutory construction with major policy implications it is particularly likely the Secretary of State will want to take up the right of appeal even if the Council does not.

    As to the chances of permission being granted, the UT will do so if it thinks the appellant’s case is arguable – whoever the appellant is. The UT will not say “well, we could grant permission, but what’s the point? The Council’s happy, the claimant’s happy, why are you sticking your oar in Mr Secretary of State?” That’s not how the UT looks at it at all.

    Reply
    • Giles Peaker

      Thanks Peter. That was my understanding on the DWP’s intervention rights. And I completely agree on the basis for permission for UT appeal.

      Oddly, so far I have not heard of a DWP or council appeal of the one FTT we know of that actually was ropey – the Redcar decision.

      The three appeals we know of so far – two Fife and the Glasgow decision – are going head on against reasoned, supported decisions. So that will be interesting…

      Reply
  4. AM

    At the risk of boos and hisses, I have some sympathy with IDS. I doubt that he would imagine how difficult wholesale implementation would be, but that is what the Civil Service is for, to identity and advise on the “ but what if….” e.g. when is room not a room (and regularly fails). Throwing out a few million £ in the expectation that will “smooth the transition” is a vast derogation of responsibility for the implementation and consequences.

    I agree that the policy is in principle right but when the assessment and application is flawed and unhelpful, as NL has ably pointed out, funding and availability of alternative accommodation, assistance and support to those less able or seasoned, is dire and inconsistent. In one borough “swaps” are available, but if you are not fit and able bodied, good luck getting someone to help you move or adapt,or even just clean, the new home..

    Reply
  5. Derek Bell

    I suspect they are running around like headless chickens. There will be a huge element desperate to go to the Upper Tribunal but they know if they lose the precedent is in and the bedroom tax will be crumbling under their feet, regardless of any moves to work on through the judicial process. If they leave it as FTT decisions then it becomes a win some, lose some issue and they continue to force the policy.

    Reply

Trackbacks/Pingbacks

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