Hall, R (on the application of) v Chichester District Council [2007] EWHC 168 (Admin)

Case No CO/5776/2006[2007] EWHC 168 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 19 January 2007
Strand
London WC2
B E F O R E:
MR JUSTICE STANLEY BURNTON
Between
THE QUEEN ON THE APPLICATION OF HALLClaimant-v-
Between
CHICHESTER DISTRICT COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Applicant appeared in person for in personMISS S HANIF (instructed by Local Authority Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE STANLEY BURNTON: This is an application by Miss Ruth Hall for judicial review of a decision of the local authority, Chichester District Council, to refuse to pay her housing benefit pending an appeal which she launched against the local authority's decision to terminate her housing benefit, that having taken place on 7th July 2006. She says that as a result of the termination of her housing benefit she has been evicted from her home.[2]The council's position is that it has no discretion to pay following a decision to suspend, and no discretion or power to pay housing benefit following the termination of entitlement and, if it had a discretion, it lawfully exercised it.[3]The relevant regulations are the Housing Benefit and Council Tax Benefit Decisions and Appeal Regulations 2001, of which I have only extracts. Regulation 11 confers on a relevant authority power to suspend payments of housing benefit in specified circumstances. It is not suggested by the local authority that it can exercise the power conferred under Regulation 181. Regulation 13 confers a separate power to suspend for failure to furnish information, et cetera. Regulation 13(1) provides that the relevant authority (so the local authority in this case, Chichester) may suspend in whole or in part --(a) any payment of housing benefit or council tax benefit;(b) any reduction (by way of council tax benefit) in the amount that a person pay or will become liable to pay in respect of council tax in relation to persons who fail to comply with the information requirements (as defined in paragraph 14 of Schedule 7 to the Act) as provided for in regulation made pursuant to section 5(1)(hh) and 6(1)(hh) of the Administration Act, persons required to satisfy the information provisions.[4]Regulation 13(3) provides that a relevant authority shall notify any persons to whom paragraph (2) refers of the requirements of that regulation.[5]Paragraph (2) refers, among others, to a person who is in receipt of housing benefit, such as Miss Hall. Paragraph (4) of Regulation 13 imposes a duty on someone such as Miss Hall who must, "(a) furnish the information or evidence needed within a period of one --(i) one month beginning with the date on which the notification under [paragraph 3] was sent to him; or(ii) such longer period as the relevant authority considers necessary [in order to enable them to] comply with the requirement; or (b) satisfy the relevant authority within the period provided for in paragraph (4) -- (i) the information or evidence so required does not exist; or (ii) it is not possible for them to obtain the information [they so require]."[6]Paragraph 5 provides:
"Where a person satisfies the requirements of paragraph (4), the relevant authority shall as far as practicable, make, or as the case may be restore, the payment within 14 days of the decision to restore the payment."
[7]Lastly, Regulation 14, headed "Termination in cases of a failure to furnish information", provides:
"(1) A person in respect of whom payment of benefit or a reduction has been suspended -- (a) under regulation 11 ... or (b) under regulation 13 for failing to comply with such a requirement, shall cease to be entitled to the benefit from the date on which the payments or reduction were so suspended, or such earlier date on which entitlement to benefit ceases."
Paragraph (2) of Regulation 14 is not suggested to be relevant.[8]What happened in this case is that following a request for information from Miss Hall her housing benefit was suspended on 6th June 2006 notified by letter of that date. She did not provide, so the authority alleges, the information requested within one month of that date - that is to say the time stipulated in Regulation 13(4). Nor did she satisfy the appeal authority that the information did not exist or was it was not possible for her to provide it.[9]The result of that is that since 6th June 2006 she has received no housing benefit. She was unable to pay rent and she was evicted from her home. She appealed against the termination on 7th July 2006, clearly immediately on receipt of the termination letter from the local authority. There are two levels of appeal. I understand that the first level of the tribunal has rejected her appeal which she is now seeking to appeal to the Commissioner. That appeal or application for permission to appeal has not yet been decided. She complains that the local authority had power pending the appeal to pay her housing benefit; it failed to exercise its discretion to pay her, or exercised it wrongly as a result of which she lost her home; she has been subjected to inhuman treatment contrary to Article 3; that Article 6 was not complied with because the local authority acted as judge in its own cause; that Article 7 has been broken because she has been punished without legal provision and therefore she is entitled, or would be entitled, to damages from the local authority.[10]Now the circumstances in which this application comes before the court are, in my judgment, unfortunate. There is a pending appeal against the decision to terminate. Miss Hall says either that it was unreasonable and unnecessary to demand the information required by the local authority of her, and therefore payment of housing benefit should not have been suspended or terminated and/or that she should have been given more time to provide it.[11]She accepts that the lawfulness and correctness of the local authority's original decision to suspend and its original decision to terminate are matters for the Commissioner and not for this court. I therefore have to approach this case in a sense as somewhat hypothetical. It is not for me to decide, and I am not asked to decide, whether or not the local authority rightly or wrongly suspended or terminated; that is a matter for the Commissioner. What I am asked to do is to say that on the assumption that they may have had the power to suspend or terminate (that is going to be dealt with by the Commissioner in due course)they did have power to pay, pending appeal, and should have exercised that power, or did not lawfully exercise a discretion to pay by refusing to pay.[12]Whether there is a discretion to pay where there is an extant decision to suspend and a subsequent termination where information has not been duly provided as required by Regulation 13 seems to be a matter which is clear. The implication of a suspension of payment is that payment will not be received by the person who otherwise would be entitled to it. It is difficult to see how there can be a suspension when money is actually paid. But the position is made clear beyond peradventure by Regulation 14, which provides in terms that from the date of suspension a person ceases to be entitled to benefit.[13]There is, therefore, in the circumstances in which there has been, as on this hypothesis I assume a lawful suspension of termination but subject to appeal, no right to housing benefit. Of course if the appeal is successful the tribunal or Commissioner will order payment of the benefit that should have been paid, but the local authority itself, it seems to me, has not, under these regulations, any discretion to pay where its case is that there has been a lawful suspension of a lawful termination. There is no such discretion. What it does have is a rather different discretion: one which was not specifically addressed by Miss Hall, but which I must nevertheless consider. It arises under Regulation 4 of the Housing Benefit and Council Tax Benefit (Decisions and Appeal) Regulations 2001. It provides that a local authority has power to revise certain decisions referred to as an “original decision”. The local authority does not suggest that a decision to suspend, and presumably also a decision to terminate, is not a relevant decision for the purposes of Regulation 4. What it says is that its power to revise its decision can only be exercised if it concludes that its original decision arose from official error or was made in ignorance or was based upon a mistake of some material fact.[14]Regulation 4 is as follows:
"(1) Subject to the provisions in this regulation, a relevant decision ('the original decision') may be revised or further revised by the relevant authority which made the decision where - (a) the person affected makes an application for a revision within - (i) one month of the date of notification of the original decision; or (ii) such extended time as the relevant authority may allow under regulation 5; (b) within one month of the date of notification of the original decision that authority has information which is sufficient to show that the original decision was made in ignorance of, or was based upon a mistake as to, some material fact; or (c) an appeal is made under paragraph 6 of Schedule 7 to the Act against the original decision within the time prescribed in regulation 18 or, in a case to which regulation 19 applies the time prescribed in that regulation, but the appeal has not been determined. (2) An original decision may be revised or further revised by the relevant authority which made the decision, at any time by that authority, where that decision - (a)arose from an official error; or (b) was made in ignorance of, or was based upon a mistake as to, some material fact and as a result of that ignorance or of mistake as to that fact, the decision was more advantageous to the person affected than it would otherwise have been but for that ignorance or mistake."
[15]One of the differences between the power to revise under paragraph 1 and that in paragraph 2 is that under paragraph 1 there are time limits whereas under paragraph 2 there are no time limits. The local authority says that paragraph 2 of Regulation 4 applies to all revisions. I do not accept that. Paragraph 2 is dealing with errors which are caused by official error or were advantageous to the recipient of, in this case housing benefit, and such errors may be corrected by revision at any time. Paragraph 1 is, as I said, time-limited in that under sub-paragraph (a) there is a time limit of one month or such extended time as the relevant authority may allow; under sub-paragraph (b) there is a time limit of one month from the date of notification of the original decision; and under sub-paragraph (c) there is time limit in effect because the revision may be made only while an appeal is pending. That there could have been a rectification under regulation 4(1)(c) is, I think, clear. Paragraph 4(1)(c) does not, so far as the extract I have before me is concerned, require the local authority to determine that it has made a mistake, or there has been an official error or anything like that. The point of (c) is to enable a local authority, it seems to me, faced with an appeal in which it sees as meritorious, to concede the appeal by making a decision again or, if not concede the appeal, to make a decision in which, as a result of the appeal, it considers to be the appropriate decision. There could have been a revision, in other words, in this case of the decision to suspend and subsequent termination under regulation 4(1)(c). However, having said that, the question is then whether the local authority acted unlawfully in maintaining its position. What it says in its correspondence is that it was content that the original decision was correct, that is to say that it was entitled to the information it sought and that Miss Hall had failed to comply with her duties under the regulations and act in failing to provide that information. Miss Hall says that the local authority should have exercised the power to revise, although she puts it rather differently in terms of a power to pay pending appeal, by reason of the obligations of the local authority to comply with the European Convention on Human Rights as scheduled to the Human Rights Act 1998.[16]As I have mentioned, she relies on Articles 3, 6 and 7. That Miss Hall has suffered as a result of her eviction I have no doubt. However, Article 3 is of very limited scope in the present connection. It is understandable that Miss Hall should consider that she has been treated inhumanely and in a condescending manner, but as Article 3 is concerned with torture and the like, eviction for non-payment of rent or the exercise of a power on bona fide grounds to terminate payment of housing benefit leading to eviction in my judgment is not arguably within the scope of Article 3.[17]So far as Article 6 is concerned, Miss Hall is right to this extent, that the local authority acts as judge in its own cause. Article 6 is complied with because there is an appeal to an independent and impartial body in compliance with the requirements of Article 6, namely the tribunal and the Commissioner. In those circumstances Article 6 carries the case no further forward.[18]Similarly, Article 7, in my judgment, is not of application in this case where(a) there was a law relating to the withdrawal, as I say the termination of housing at the relevant time;(b) arguably law was complied with, and whether it was complied with or not is a matter for the Commissioner and not for me; and(c) it seems to me that the withdrawal of housing benefit in circumstances envisaged under the regulations to which I have referred is not a punishment for the purposes of the European Convention.[19]Miss Hall could have relied on Article 8. There is undoubtedly an interference with the right to respect for her home and private life, but if the Commissioner upholds the suspension and termination, then the law would have been complied with and it seems to me that it could not be argued that a power to withdraw housing benefit where a person fails to comply with an information requirement which is lawful can be said to be unnecessary or disproportionate. It seems to me that in this case, on the assumption that the original demand for information was lawful, and on the assumption, which I do not question, that the suspension was therefore lawful, the local authority had no power to pay housing benefit pending an appeal. It did have power to revise its decision but it gave good reasons for not doing so. I should have mentioned that the local authority were informed that Miss Hall would lose her home if housing benefit ceased. It seems to me that that is, sadly, a consequence of the withdrawal of housing benefit, the circumstance of which have been prescribed by this regulation and that fact did not require the local authority to revise its decision to one which it considered to be wrong.[20]In those circumstances, while I have sympathy with Miss Hall's position, in the circumstance in which I am judging the issues in this case, that is to say where the Commissioner has not yet made its decision, it seems to me that this application for judicial review must fail on the terms of the applicable regulations.