Outside the jobcentre

Dealing with the indirect consequences

of right to reside decisions

Tom Royston

Garden Court North, 30 November 2015

  1. This paper deals with three issues relating to ‘right to reside’ social security problems:
  1. getting access to other public services for which a right to reside is necessary;
  1. speeding up resolution of the social security problem;
  1. defending possession proceedings brought due to HB non payment.

(a) Receiving public services pending a determination of a right to reside

  1. There is limited scope for arguing that a claimant should be paid benefit while he appeals against a decision that he does not have a relevant right to reside. Indeed, it can be difficult to argue that a claimant should be paid benefit even after his appeal has succeeded, if SSWP is appealing it further, because of the broad scope of s 21 Social Security Act 1998: R (on the application of Sanneh) v Secretary of State for Work & Pensions [2012] EWHC 1840 (Admin) (30 April 2012).
  1. The position is different when not involving cash benefits. Consider a person who needs day-to-day services (for example temporary homeless accommodation), but is excluded from them on the ground of lack of a relevant right to reside. If he has an arguable case for asserting a right to reside, and is being caused immediate hardship, he should consider seeking an emergency injunction requiring the relevant authority to provide those services pending challenge to the right to reside decision.

(b) Speeding up decision making

  1. Decision making in right to reside cases can be very slow. Two options exist:
  1. speed up the original decision maker’s decision making; or
  1. if there has been a decision, speed up the tribunal proceedings.
  1. The SSWP’s failure to make a decision can be challenged in judicial review proceedings. You may wish to argue that an exhaustive examination of your client’s circumstances is itself unlawful: the UK claims to abide by its obligation under Art 14 of Directive 2004/38 EC not to carry out right to reside checks ‘systematically’. See Commission v UK - Opinion of Advocate-General Villalón[2015] EUECJ C-308/14-O (6 October 2015), §94.
  1. Regarding tribunal proceedings, the FTT has the power to list hearings quickly in urgent cases. Find out more:

(c) Discrimination and possession proceedings

  1. Non-payment of housing benefit will often cause a landlord to bring possession proceedings. A common reason for non-payment of HB to EEA nationals is that the local authority has decided that a claimant has no right of residence, or has the wrong kind of right of residence.
  1. Where there are grounds for arguing that the HB entitlement decision is wrong, consider whether the possession proceedings are unlawfully discriminatory. If they are, that affords a defence to the proceedings.
  1. You cannot normally rely on housing benefit problems as a defence to mandatory grounds rent arrears possession proceedings: Marath v MacGillivray (1996) 28 HLR 484 (CA). One might in principle, at least against social landlords, defend mandatory grounds cases on ‘public law’ grounds, but the circumstances in which that can be done are restrictive, and most defences of that kind will be summarily dismissed: London Borough of Hounslow v Powell [2011] UKSC 8, [2011] 2 AC 186, §33. Therefore discrimination is a particularly useful argument to run in ‘mandatory grounds’ possession cases (and it is not restricted to social landlords).
  1. Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15, [2015] 2 WLR 721, §36 is authority for the proposition that only in ‘rare’ cases will it be appropriate to dispose of discrimination defences without a full trial.
  1. The resort to possession proceedings in cases of delayed HB payment can be argued to be indirectly discriminatory on nationality grounds, in that EU nationals will be particularly likely to encounter HB problems which take a long time to sort out.
  1. There is no requirement (either in EU law or under the Equality Act 2010) to demonstrate the likelihood of disparate impact with statistical evidence or other actual evidence of the provision in practice: Secretary of State for Work and Pensions v Bobezes [2005] EWCA Civ 111, R (IS) 6/05, §45.
  1. If a court accepts prima facie discrimination has been shown, it will then be for the landlord to prove that the discrimination is justified.

Tom Royston

Garden Court North

30 November 2015

This handout does not constitute legal advice.

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