R Mark Logan v London Borough of Havering
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blake |
| Judgment Date | 06 November 2015 |
| Neutral Citation | [2015] EWHC 3193 (Admin) |
| Docket Number | Case No: CO/1822/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 November 2015 |
[2015] EWHC 3193 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Blake
Case No: CO/1822/2015
Karon Monaghan QC and David Lawson (instructed by John Ford & Co.) for the Claimant
Clive Sheldon QC, Ronnie DavisandZoe Gannon (instructed by Stephen Doye One Source) for the Defendant
Hearing dates: 16–17 September 2015
Approved Judgment
Introduction
In 2012 Parliament changed the law with respect to support from public funds for people whose income and capital was insufficient to pay council tax. In substance the amendments made to the Local Government Finance Act 1992 by the insertion of a new section 13A resulted in new arrangements for:-
i) the reduction under s.13A (1)(a) of a person's liability to pay council tax to the extent required by a council tax scheme (the scheme) adopted by the billing authority (the relevant local authority);
ii) the further reduction of such liability to such extent as the billing authority thinks fit (s.13A (1) (c));
iii) a duty on the billing authority to make a scheme specifying reductions to persons considered to be in financial need or classes of persons to be considered in general in need (s.13A (2)).
Other legislative provisions and notably the Council Tax Reduction Schemes (Prescribed Requirements) (England) Regulations 2012 SI 2012 No 2885 (the Regulations), provided:
i) in the event that the billing authority failed to make a scheme by 31 January for the financial year beginning in April, the terms of a default scheme would apply;
ii) where the billing authority did make a scheme, its terms were a matter for the authority in question save that people of retirement age who had less than £16,000 in capital must be included in such a scheme (regulation 11) and where relevant earnings fell below the applicable amount, a 100% reduction in liability to pay council tax should apply to such people;
iii) by Schedules 4 to 6 of the Regulations certain earnings, income other than earnings and capital amounts were to be disregarded;
iv) by Schedule 7 of the Regulations procedural matters were to be included in the scheme, otherwise leaving the billing authority to decide the persons or classes of persons below retirement age who should fall within the scheme and the rate of reduction that should apply.
The present application is a challenge to the legality of the defendant's scheme and the means by which it was adopted. The claimant is a man of 55. He lives with his wife and adult son. He suffers from a multiplicity of health problems that make him disabled and is assessed to have enhanced disability under the statutory scheme. He is in receipt of Disability Living Allowance (DLA) of £139.79 per week that is made up of £82.30 for care and £57.45 for mobility; these are both at the highest rates available having regard to the extent of his needs.
It is common ground that he should, in addition, receive Employment and Support Allowance (ESA) of £147.25 per week made up of a personal married couples allowance of £114.85 (the same rate as Job Seekers Allowance ( JSA) to a couple without disability), and additional sums by way of support group premium, enhanced disability premium and carer's premium that would take the sum up to £208.50 but there is a deduction of £62.10 for the carer's allowance that is paid directly to the claimant's wife. The overall income to the claimant and his wife from DLA and ESA is thus £348.29 per week (disregarding for present purposes a discrepancy in actual receipts that the claimant was pursuing with the Job Centre at the time of his second statement). His combination of medical conditions means that he cannot undertake any employment, and as they are unlikely to improve he will never be able to do so. His wife is his registered carer. His son also suffered an accident that means he cannot work at present.
The defendant is the London Borough of Havering (Havering). It is the billing authority for the claimant's area. In the financial year 2014/2015 it had promoted a scheme where people with the claimant's level of income and disability received a reduction in council tax liability of 100%. All reductions in liability had to be funded by the billing authority itself. With central government imposing further cuts in the support grant paid to local authorities, Havering decided it had to review its scheme for the financial year 2015/16. Like any authority subject to these financial restraints, it had limited options to produce a balanced budget and assessed that it needed to bridge a budget gap of £60 million over four years, nearly one third of its annual running costs. It could raise the level of council tax and Havering decided to do this to the maximum threshold permitted without requiring a referendum to be held. A referendum is required if the billing authority imposes an increase in council tax of 2% or more. A referendum costs some £250,000 to hold. No referenda to increase council tax by more than 2% have ever been successful. Second, it could make cuts to some of the services it provided to residents and its costs in providing them. A number of such measures were identified. Third, it could increase its income by amending its scheme and, in particular, by replacing the previous 100% reduction for those eligible for support because of their lack of resources with an 85% reduction. This would require everyone otherwise eligible for support to pay 15% of their council tax liability subject to any further reduction pursuant to the section 13A (1)(c) discretion.
In 2014 Havering's cabinet decided to pursue the 85% option, having considered and rejected other measures, such as reducing the level of support to 75% or 80%, as some neighbouring London authorities had done. It was then required to consult with the Greater London Authority and its residents likely to be affected by the changes. No legal issues arise at this hearing from the terms of the consultation.
Following consultation, a report was prepared by officers to the cabinet setting out the case for the proposals under consideration, reminding the nine cabinet members of their public sector equality duty (PSED) under the Equality Act 2010. Attached to the report was an Equality Impact Assessment (EIA). Amongst other things, this set out how requiring people, whose low incomes from state benefits made them eligible for support, to pay 15% of their council tax liability from such income would have adverse effects on them.
The cabinet, duly equipped with this information, decided on 21 January 2015 to recommend that the full Council should take the decision to adopt the revised scheme. The minutes of the meeting recorded the financial context for the decision and the outcome of the consultation to which only some 363 responses were received after 10,000 questionnaires had been sent out. They state:
"The scheme itself had been designed to assist people on low incomes pay their council tax. Certain vulnerable groups faced barriers to work which resulted in less earning power and entitled them to claim CTS. An even distribution of the 15% reduction did not therefore disproportionately impact any specific single vulnerable group."
The full Council consists of 54 people including a number of distinct opposition groups. The report of the officers to Cabinet with the EIA attached was not circulated to every member of the Council. The nine members of Cabinet had received hard copies of the report as had the leaders of two other groups on the council and a leader of a third group received the report electronically as he had requested. The report was available on Havering's web site from 13 January 2015. All councillors are equipped with means of accessing such documentation electronically. On the same day that the report was placed on the website, an officer circulated an email to the cabinet members and alerted 20 others who had registered for electronic messaging to the posting.
In preparation for the cabinet meeting, Councillor Barrett, the leader of the one of the Residents' groups forming the governing coalition, had circulated the seven members of his group electronically providing a link to the cabinet report and asking for comments. In addition to the nine cabinet members, nine other council members attended the cabinet meeting. It would appear that at least 19 councillors had received the officers' report; others may have done, as at least 20 were alerted to its existence and availability electronically.
The full Council approved the recommendation of the cabinet without a division on 28 January 2015. The minutes of this meeting do little more than record this fact. There has been no extraneous evidence introduced in these proceedings as to the discussion on that occasion.
The challenge
The claimant became aware of the decision shortly after it was taken and by 18 February 2015 he had received a response to a Freedom of Information request. On 26 February his present solicitor wrote a pre-action letter. In March, the claimant was successful in his application for further reduction under the discretionary scheme (pursuant to s.13A (1)(c) of the Act) and on the facts he disclosed as to his household income and his needs, both general and specific to his disabilities, he was awarded enhanced 100% council tax support.
Judicial review proceedings were issued on 20 April 2015. At that stage the relief sought included both a...
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