CH 2812 2005
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 27 July 2006 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CH 2812 2005 |
| Subject Matter | Tribunal procedure and practice (including UT) |
R(H) 1/07
|
Mr E Jacobs Commissioner 27 July 2006 |
CH/2812/2005 |
Collateral challenge to High Court order – whether tribunal’s jurisdiction to hear appeal depends on referral by local authority
In June and October 2000 the local authority made two decisions which the claimant challenged unsuccessfully, first at internal review and subsequently at the local authority’s housing benefit review board. He then sought a judicial review of the review decisions and reached a written agreement with the local authority. The effect of the order would have been to give jurisdiction to the appeal tribunal when it acquired housing benefit appeals from 2 July 2001. Before the agreement reached the Administrative Court, one judge had refused permission on the papers. The agreement was put before another judge, who quashed the decisions. The legal department of the local authority decided that the order was not valid and instructed the appeals officer to ignore it. Accordingly, she refused to refer the cases to the tribunal. However the Appeals Service became aware of the cases and a district chairman gave directions for them to be listed. The local authority applied for an adjournment. The tribunal decided that it had jurisdiction and refused to adjourn. It allowed the appeals. On appeal to the Commissioner, the local authority argued that the tribunal had no jurisdiction to hear cases that had not been referred to it by the local authority and, in any case, it should have disregarded the order quashing the decisions
Held, dismissing the appeal, that
1. the tribunal had no power to disregard the order of the court and had to accept it as valid (Hadkinson v Hadkinson [1952] P 285 and Isaacs v Robertson [1985] AC 97 followed) and there was no scope for a collateral challenge to the order in the tribunal proceedings, since the local authority had had a fair opportunity to challenge the order as soon as it was made (Boddington v British Transport Police [1999] 2 AC 143 followed) (paragraphs 16 and 17);
2. an order remains valid until set aside in spite of lack of jurisdiction (Re Gale (Deceased) [1966] Ch 236 and Re B (Court’s jurisdiction) [2004] 2 FLR 741) and it was clear that the court was entitled to enter on the consideration of the matter, so that, even if the principles set out in R(I) 17/94 applied to High Court orders as well as to tribunals, any procedural irregularities did not affect the validity of the order (paragraphs 18 to 20);
3. even if the Administrative Court might have accepted jurisdiction to review the refusal of the local authority to refer the case to the tribunal, that would not have deprived the tribunal of the power to determine whether it had jurisdiction (R v Fulham, Hammersmith and Kensington Rent Tribunal, ex parte Zerek [1951] 2 KB 1 followed) (paragraphs 25 and 26 );
4. the tribunal’s jurisdiction was not dependent on the local authority referring the case, as it is the legally qualified member who must decide whether an appeal is valid under regulation 20(1) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 and the local authority’s role was essentially administrative (paragraphs 27 to 34).
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under paragraph 8 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. It is:
The decision of the Fox Court appeal tribunal under reference U/42/242/2004/03855, held on 11 November 2005, is not erroneous in point of law.
The issues
2. There are two issues in this case. Did the tribunal have power to disregard an order of the High Court that decisions of the local authority be quashed on judicial review? And did the tribunal have power to act until the local authority has referred the cases to it
Background
3. In June and October 2000, the local authority made two decisions in respect of the claimant’s entitlement to housing benefit. The first was a recoverable overpayment decision in the amount of £21,693.65. The ground for recovery was that the claimant’s tenancy was created to take advantage of the housing benefit scheme. The second was a refusal of a claim on the same ground. (There is some confusion about the date of the second decision. I have followed the tribunal, for the reasons it gave, in dating it to October.)
4. When the original decisions were made, there was no appeal to an appeal tribunal against the decisions. Any challenge was dealt with by way, first, of internal review and, then, by the local authority’s Housing Benefit Review Board. The claimant sought a judicial review of the review decisions.
5. The claimant and the local authority reached a written agreement. The Secretary of State was also a party to the proceedings and the agreement. There is a dispute about what the agreement meant. The local authority says that it was an agreement on the disposal of the case, provided that the judge of the Administrative Court gave permission. The claimant says that it was an agreement for permission to be granted and the decisions quashed. The agreement was sent to the Court on 10 May 2001.
6. Meanwhile (on 9 May 2001) and unknown to the parties, Mr Justice Richards had refused permission on paper on the grounds of delay. However, on 6 July 2001, Mr Justice Turner...
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