R (on the application of Moseley) v Haringey London Borough Council

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Clarke,Lady Hale,Lord Reed,Lord Wilson
Judgment Date29 October 2014
Neutral Citation[2014] UKSC 56
Date29 October 2014

[2014] UKSC 56

THE SUPREME COURT

Michaelmas Term

On appeal from: UKSC 2013/0116

before

Lady Hale, Deputy President

Lord Kerr

Lord Clarke

Lord Wilson

Lord Reed

R (on the application of Moseley (in substitution of Stirling Deceased)) (AP)
(Appellant)
and
London Borough of Haringey
(Respondent)

Appellant

Ian Wise QC Jamie Burton Samuel Jacobs

(Instructed by Irwin Mitchell LLP)

Respondent

Clive Sheldon QC Heather Emmerson

(Instructed by Legal Services, The London Borough of Haringey)

Heard on 19 June 2014

Lord Wilson (with whom Lord Kerr agrees)

Introduction
1

When Parliament requires a local authority to consult interested persons before making a decision which would potentially affect all of its inhabitants, what are the ingredients of the requisite consultation?

2

Until 1 April 2013 there was a scheme in England for the payment of Council Tax Benefit ("CTB") for the relief, in whole or in part, of certain persons from their annual obligation to pay council tax. The scheme was made by the Department for Work and Pensions and the duty of local authorities was only to operate it. From 1 April 2013, however, local authorities were required to operate a new scheme, entitled a Council Tax Reduction Scheme ("CTRS"), which they were required to have made for themselves. Before making a CTRS, local authorities were required to consult interested persons on a draft of it. Between August and November 2012 the London Borough of Haringey ("Haringey") purported to consult interested persons on its draft CTRS, following which it made the scheme in substantial accordance with its draft.

3

In these proceedings two single mothers, who were resident in Haringey and who until 1 April 2013 had been in receipt of what I will describe as full CTB (by which I mean at a level which had relieved them entirely of their obligation to pay council tax), applied for judicial review of the lawfulness of the consultation which Haringey had purported to conduct in relation to its draft CTRS. The women asked the court to quash the decision which on 17 January 2013 Haringey had made in the light of the consultation; and my reference in paragraph 8 below to the "default scheme" will explain why the quashing of the decision would have been very much in their interests. On 7 February 2013 Underhill J dismissed their application: [2013] EWHC 252 (Admin); [2013] ACD 62. The judge had allowed them to be anonymised as "M" and "S". The latter appealed to the Court of Appeal, which ruled that she was not entitled to anonymity and should be referred to by name, Ms Stirling. On 12 February 2013, with astonishing alacrity referable no doubt to the deadline of 1 April 2013, the court heard the appeal. On 22 February 2013, by a judgment of Sullivan LJ with which Sir Terence Etherton, the Chancellor of the High Court, agreed, and by a judgment of Pitchford LJ in which he disagreed with one aspect of the reasoning of Sullivan LJ but concurred in the proposed result, the court dismissed her appeal: [2013] EWCA Civ 116; [2013] PTSR 1285. Ms Stirling appealed to this court against the dismissal of her appeal but unfortunately she became ill and unable to give instructions, with the result that, by consent, the court substituted Ms Moseley as the appellant; and since then, sadly, Ms Stirling has died. Like the other two women, Ms Moseley is a single mother, resident in Haringey, who until 1 April 2013 had been in receipt of full CTB.

The Surrounding Facts
4

For the period prior to 1 April 2013 a means-tested scheme set by central government identified those entitled to CTB. Local authorities were obliged to apply it to residents in their area. Although reference is conveniently made to payment of CTB, it was not, in the usual sense of that word, paid to those entitled to it. Instead it provided them with a credit, in whole or in part, against what they would otherwise owe to their local authority in respect of council tax. Central government reimbursed local authorities, pound for pound, for what they forewent as a result of being obliged to grant the benefit.

5

In the final year in which it was payable, namely the year to 1 April 2013, about 36,000 households in Haringey, namely about one third of all of its households, were entitled to CTB. Of those, 25,560 were entitled to full CTB.

6

In its Spending Review back in 2010 central government announced that, as part of its programme for reduction of the national deficit, it would from April 2013 transfer to each local authority the responsibility for making, as well as for operating, a scheme for providing relief from council tax; and that in 2013–2014 the reimbursement by central government to each local authority in respect of whatever it provided by way of relief from council tax would be fixed at about 90% of the amount which the government would have paid to it in that regard in 2012–2013.

7

Section 33(1)(e) of the Welfare Reform Act 2012 duly abolished CTB with effect from 1 April 2013. Section 13(A)(2) of the Local Government Finance Act 1992 ("the 1992 Act"), as substituted by section 10(1) of the Local Government Finance Act 2012 ("the 2012 Act"), duly obliged each local authority to make a CTRS for those whom it considered to be in financial need.

8

Schedule 1A to the 1992 Act ["the schedule"], which was added by Paragraph 1 of Schedule 4(1) to the 2012 Act and given effect by section 13A(3) of that Act, made provisions about a CTRS. Paragraph 2 of the schedule, together with regulations made under subparagraph 8 of it, specified requirements for a scheme, including that pensioners who would have been entitled to CTB should be granted relief at the same level. Paragraph 3 of the schedule, entitled "Preparation of a scheme", provided:

The title of the paragraph puts beyond doubt that the procedure for preparing a scheme, which can be the subject of regulations under subparagraph (4), includes the procedure for the consultation required by subparagraph (1)(c). In the event, however, no such regulations were made. Paragraph 4 of the schedule required the Secretary of State to prescribe a "default scheme" so as to provide for relief from council tax in and after 2013–2014 for households in the area of any local authority which had failed to make a scheme by 31 January 2013. The default scheme, set out in the Council Tax Reduction Schemes (Default Scheme) (England) Regulations, SI 2012/2886, provided that, notwithstanding the reduction in reimbursement by central government, a local authority should grant relief against council tax after 1 April 2013 at the same level as had previously been granted by way of CTB. Paragraph 5 of the schedule provides that, for each year subsequent to 2013–2014, a local authority must consider whether to revise its CTRS and that, if it resolves to do so, it should again comply with the provisions for preparation of a scheme in paragraph 3.

  • "(1) Before making a scheme, the authority must (in the following order)—

    • (a) consult any major precepting authority which has power to issue a precept to it,

    • (b) publish a draft scheme in such manner as it thinks fit, and

    • (c) consult such other persons as it considers are likely to have an interest in the operation of the scheme.

  • (2) …

  • (3) Having made a scheme, the authority must publish it in such manner as the authority thinks fit.

  • (4) The Secretary of State may make regulations about the procedure for preparing a scheme."

9

Mr Ellicott, Head of Revenues, Benefits and Customer Services in Haringey, was the main author of a report for consideration by Haringey's Cabinet on 10 July 2012. In it he identified the need for Haringey to make a CTRS by 31 January 2013. He explained that reimbursement by central government to Haringey in respect of relief from council tax was to be reduced by about 10% in 2013–2014 but that, were Haringey's CTRS to provide relief at a level equivalent to CTB, the shortfall would rise to about 17–18%, mainly because of the trend in Haringey for an annual increase in the number of households eligible for relief. In his introduction to the report Councillor Goldberg, Haringey's Cabinet Member for Finance, wrote:

"Needless to say it is my belief that this represents one of the most appalling policies of the government and it is not insignificant that the unemployed will now be facing the prospect of having to pay 20% local taxation levels, which they last were subjected to paying under the Poll Tax."

There was nothing wrong with Councillor Goldberg's expression of indignation. But it did betray an assumption that the shortfall would have to be reflected by provisions in the CTRS which reduced the level of relief below the level previously provided by way of CTB rather than that Haringey should absorb it in other ways. It is true that in the body of the report Mr Ellicott proceeded to refer to the option of absorbing the cost and then rejected it on the ground that it would require a reduction in services. He also identified, and rejected, options for exempting each of four classes of claimant for relief from any reduction below its existing level. In the end he recommended that Haringey's CTRS should provide that the shortfall be met by a percentage reduction in the amount of CTB payable to all claimants other than, of course, to pensioners; and that, because pensioners would not be meeting their share, the percentage reduction for other claimants would have to rise to between 18% and 22%. Those who were then in receipt of full CTB, other than pensioners, would therefore, for example, be required to pay between 18% and 22% of their council tax liability.

10

On 10 July 2012 Haringey's Cabinet approved the recommendation in Mr Ellicott's report. Haringey thereupon proceeded to prepare its draft scheme. Pursuant to paragraph 3(1)(a) of the schedule, it consulted the Greater London Authority,...

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