R (Bono and Another) v Harlow District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards |
| Judgment Date | 15 March 2002 |
| Neutral Citation | [2002] EWHC 423 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1404/2001 |
| Date | 15 March 2002 |
[2002] EWHC 423 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Richards
Case No: CO/1404/2001
Mr Edward Fitzpatrick (instructed by Hodge Jones & Allen) for the Claimants
Mr Jonathan Manning (instructed by Legal Services of Harlow District Council) for the Defendant
This is a challenge to a decision of the Harlow District Housing Benefit Review Board dated 11 January 2001 that the claimants were not entitled to receive housing benefit for the period 29 June 1998 to 7 February 1999. The claimants contend that the Board erred in their application of the relevant regulations and that there was a breach of the claimants' rights under article 6 of the European Convention on Human Rights since the Board was not an independent and impartial tribunal.
Statutory framework
Entitlement to housing benefit is governed by s.130 of the Social Security Contributions and Benefits Act 1992. Detailed provisions as to the making of claims were contained at the material time in the Housing Benefit (General) Regulations 1987.
By Regulation 73(1) of the 1987 Regulations:
"… A person who makes a claim shall furnish such certificates, documents, information and evidence in connection with the claim, or any question arising out of it, as may be reasonably required by the appropriate authority in order to determine that person's entitlement to housing benefit, and shall do so within 4 weeks of being required to do so or such longer period as the appropriate authority may consider reasonable …."
Regulation 76 provides:
"(1) Unless provided otherwise by these Regulations, any matter required to be determined under these Regulations shall be determined in the first instance by the appropriate authority.
(2) An authority shall be under no duty to determine a claim—…
(b) where the claimant has failed to satisfy the provisions of regulation 73 … (evidence and information) …."
The 1987 Regulations also provide for reviews. The enabling statutory provision is s.63(3) of the 1992 Act, which is in very general terms:
"Regulations shall make provision for reviews of determinations relating to housing benefit …."
Provision is made in regulation 79 for reviews of determinations and in regulation 81 for further reviews by a Review Board. Regulation 81 reads:
"(1) A person affected who has made representations under regulation 79(2) (review of determinations) may give or send to the appropriate authority written notice signed by him requesting a further review of the determination within 4 weeks of the date on which the determination on those representations was sent to him.…
(2) The notice given under paragraph (1) shall set out the grounds on which a further review is requested.
(3) The further review shall be conducted by a Review Board appointed by the appropriate authority and constituted in accordance with Schedule 7."
Schedule 7 provides:
"1. A Review Board appointed by an authority listed in column (1) of the Table below shall consist of not less than three of the persons specified in relation to that authority in Column (2) of that Table.
Table
| (1) Authority | (2) Composition of Board |
| 1. A local authority other than the Common Council of the City of London | 1. Councillors of that Authority." |
Regulation 83 deals with decision-making upon further review by a Board. It provides:
"(1) Upon further review the Review Board shall decide whether to confirm or revise the determination of the appropriate authority ….
(2) In reaching its decision the Review Board shall apply the provisions of these Regulations as though any duty imposed on, or power or discretion conferred on, an authority were imposed or conferred on the Review Board."
Factual background
In early 1998 the claimants commenced trading as self-employed market traders, trading in football memorabilia. The business generated a low income. On 28 January 1998 they applied for family credit and at the same time applied for housing benefit and council tax benefit.
By letter dated 10 February 1998 the Family Credit Unit at the Benefits Agency notified the claimants that they were entitled to receive family credit with effect from 6 January 1998. The estimated earnings and expenses relied on in support of the family credit application were also relied on in support of the claim for housing benefit. After an initial query by letter dated 3 April 1998 it was confirmed by the council's Benefits Unit that the earnings figure accepted for the purposes of family credit would be used to calculate housing benefit up to June 1998, after which the claimants would have to provide proper books showing income and expenditure; otherwise the Benefits Unit would not be able to continue assessing the housing benefit claim. Housing benefit was thereafter paid up to 28 June 1998.
An application for housing benefit was subsequently submitted in respect of the following period, again relying on figures used in respect of a corresponding application for family credit and accepted for the purposes of assessing family credit. A central issue in the present proceedings is whether the claimants, in addition to submitting the family credit figures, attempted at some point to submit further material in support of the application for housing benefit. I will come back to that issue.
By letter dated 1 July 1998 the Benefits Unit stated as follows:
"Thank you for your application for Housing Benefit and Council Tax Rebate. However, I need the following proof to verify your claim:
Please refer to my previous letter of 3 rd April which asked you to provide actual books or accounts with regards your self-employed earnings."
The claimants then sought the assistance of an adviser, Mr Shah, who submitted on their behalf a letter dated 12 July 1998 enclosing the form which had been submitted to the Family Credit Unit and a letter from the Family Credit Unit accepting the figures on that form.
By letter dated 21 July 1998 the Benefits Unit stated:
"I am writing in reply to the request from A. Shah, Welfare Rights that we assess your claim for Housing/Council Tax Benefit using the form you completed for the Family Credit Unit.
I have discussed this matter with my Senior Officer, and looked at the form you completed for them and we feel that we cannot use the information you provided for them. In order to assess Housing Benefit we would need to see either audited accounts or Weekly/Monthly figures. I refer again to the letter sent to you on 3 rd April 1998 where you were informed that we would assess your claim for six months and then we would need to see more accurate accounts or books.
If you cannot provide these details then I am afraid that I cannot assess your claim …."
By letter dated 6 August 1998 the claimants requested a review taking into account that the figures had been accepted by the Family Credit Unit and that the claimants had been informed by that Unit that every authority in the country accepted their decision. It was also pointed out that as a small business the claimants could not afford an accountant at that time.
The response by letter dated 11 August 1998 from the Benefits Unit stated:
"To assess your claim for Housing/Council Tax rebate we need to know a week-to-week, or month-to-month profits and details of your expenses. The Family Credit unit do not ask for these details, but for Housing/Council Tax benefit purposes we need a breakdown of expenses as some are allowable and some are not.
There is no need for actual audited accounts, as I informed you before (please refer to copies of letter dated 3 rd April 1998 and 21 st July 1998), just weekly or monthly details will suffice.
If you are not able to provide us with these details I am afraid we cannot continue with your claim.
If you are still dissatisfied with this decision you may ask within four weeks of this notification for your claim to be considered by a Review Board …."
A request for a hearing before a Review Board was made by letter dated 2 September 1998, relying on the same grounds as had been submitted in support of the application for a review dated 6 August 1998. Owing to an administrative oversight there was a long delay in the case coming before a Review Board. A hearing eventually took place on 15 February 2000.
In the meantime, on 8 January 1999, the claimants had submitted a further claim for housing benefit, for the period commencing 8 February 1999. That and subsequent claims were accepted by the Benefits Unit, resulting in the payment of housing benefit from that time. In addition, audited accounts for the first year of trading were prepared in August 1999 and were accepted by the Unit.
The decision of the Review Board, dated 21 February 2000, was to uphold the defendant's decision that no benefit was payable for the period 29 June 1998 to 7 February 1999. The claimants then applied under regulation 86 to set aside the decision and also applied for permission to apply for judicial review of the decision. Permission to apply for judicial review was granted on 6 September 2000. In the event, however, the decision was set aside by another Board on 17 October 2000 on the basis of a procedural irregularity and the challenge by way of judicial review was withdrawn.
The matter was then referred to a newly constituted Review Board which heard the case on 8 January 2001. The Board consisted of three councillors of the defendant council, in...
To continue reading
Request your trial
-
D.j.s. V. The Criminal Injuries Compensation Appeal Panel+the Advocate General For Scotland
...principal points: (1) the domestic application of the Convention; (2) the case of Regina (Bono and Another) v Harlow District Council [2002] 1 W.L.R. 2475 and, in particular, the question whether there existed a matter to which section 6 of the 1998 Act could apply; (3) the issue of retrosp......
-
R (Ghai) v Newcastle upon Tyne City Council
...Subordinate legislation cannot provide a lawful justification when it is incompatible with Convention rights: R (on the application of Bono) v Harlow District Council [2002] 1 WLR 2475, [34]. More importantly, the claimant contended that severe scrutiny is called for when discrimination co......
-
Human Rights Act Defence & Independent & Impartial Tribunal
...Introduction R(Bono) v Harlow District Council [2002] EWHC 423 (Admin)(15th March 2002), Richards J had to consider two important concerning the effect of the Human Rights Act 1998 - the requirement of an independent and impartial tribunal in Article 6 of the European Convention on Human Ri......