Taylor (Ryan's) Application for Judicial Review
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2020] NIQB 78 |
| Date | 18 December 2020 |
| Court | Queen's Bench Division (Northern Ireland) |
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Neutral Citation No: [2020] NIQB 78
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: FRI11376
ICOS No: 280/22745
Delivered: 18/12/2020
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY RYAN TAYLOR
FOR JUDICIAL REVIEW
___________
Mr Hugh Southey QC and Mr Steven McQuitty (instructed by Kristina Murray Solicitors)
for the Applicant
Mr Tony McGleenan QC and Mr Aidan Sands (instructed by the Departmental Solicitor’s
Office) for the First Respondent, the Department of Communities
Mr Tony McGleenan QC and Mr Aidan Sands (instructed by Crown Solicitor’s Office) for
the Second Respondent, the Department for Work and Pensions
___________
INDEX
Subject Paragraph/s
Introduction [1] - [10]
Part I Relevant Facts [11] - [31]
Part II Legislative Framework [32] - [92]
Part III Article 8 and A1P1 Challenges [93] - [129]
Part IV Article 14 Challenge [130] - [168]
Conclusion [169]
___________
FRIEDMAN J
Introduction
[1] This case concerns the continuing payment of housing benefit while a person
is temporarily absent from their home by virtue of being in prison. The Applicant,
Mr Ryan Taylor, has brought a human rights challenge against the applicable
legislative framework and policy considerations which differentiate between a
prisoner who is remanded in custody pending his trial (hereafter a ‘remand
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prisoner’), and a prisoner who has been sentenced to a term of imprisonment after
pleading guilty, or otherwise convicted of an offence (hereafter a ‘sentenced
prisoner’). Under the applicable statutory regime the sentenced prisoner can receive
housing benefits for up to 13 weeks of absence from their home and a remand
prisoner can receive benefits for up to 52 weeks. The various time scales referred to
below must be read with the knowledge that a person who is sentenced to a term of
imprisonment will be automatically eligible for release after he has served half of
that period. Also any period of remand in custody prior to a sentence will count as
time served in calculating the date of release.
[2] No benefit system could likely afford, or justify, paying housing benefits to
subsidise indefinite or prolonged periods of absence from a home occasioned by
imprisonment. However, it has been a feature of social security law for several
decades to secure the permission of temporary absence for both remand and
sentenced prisoners for short periods, although the statutory regime under challenge
in these proceedings has afforded greater temporal latitude to remand prisoners.
Prior to 1995 both types of prisoners were treated the same with entitlement to
temporary absence for 52 weeks. Since the staged introduction of Universal Credit
in 2013 across England & Wales, and since 2015 in Northern Ireland, they are again
being treated as the same with entitlement to temporary absence for six months.
[3] The Applicant has been a prisoner in various forms and timescales that are
important to the challenge. He was first a remand prisoner (September-December
2019), then for a brief period a dual remand and sentenced prisoner (December 2019-
April 2020), but until his grant of bail in August 2020 when he was released into the
community to live in his pre-existing home address, he had reverted to being a
remand prisoner only. His overall period in custody did not exceed 52 weeks, of
which his period as a sentenced prisoner within that timescale was 16 weeks. Had
he been in receipt of Universal Credit, as opposed to Housing Benefit, then the
Applicant would have been able to keep his benefit payments for 26 weeks. Instead,
the payments were immediately cancelled as soon as it was known he was sentenced
to be imprisoned for more than 13 weeks.
[4] The operative legislative scheme is the Housing Benefits Regulations
(Northern Ireland) 2006 (‘the Regulations’) as amended by The Social Security
(Miscellaneous Amendments) Regulations (Northern Ireland) 2013. They provide
that persons in receipt of benefits, including a sentenced prisoner, can be away from
their home for up to 13 weeks and still continue to receive payments (Reg. 7(13)).
The Regulations recognise certain exceptions to the rule, of which a remand prisoner
is such an exception, who is allowed to be away from their home for up to 52 weeks
and still receive benefits (Reg. 7(16)(c)(i)). However, since an amendment to the
Regulations in 2013 a remand prisoner in this context cannot also be a prisoner who
has been detained in custody following a sentence upon conviction that is longer
than 13 weeks, even by a short period (Reg. 16A). The agreed combined effect of
these regulations is that on the date that the Applicant received a sentence of longer
than 13 weeks, which in his case was 32 weeks for which he would serve half, then
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the Northern Ireland Housing Executive (‘the NIHE’) was immediately required to
cancel his housing benefit as he would definitely exceed the period of permitted
temporary absence.
[5] In his Amended Order 53 Statement the Applicant claims that the statutory
regime exposed him disproportionately to an “imminent” risk of losing his home
while he completed the short period of imprisonment. That was because there was
no discretion to maintain the housing benefits as a result of the sentence, or to
reinstate the benefit once he returned to the status of a remand prisoner. In his
complaint about the undue risk of losing his home as a consequence of the landlord
being entitled to bring possession proceedings if he could not pay the rent, the
Applicant submits that his circumstances brought about by the ordinary operation of
the legislation that cancelled his rental contributions were such as to violate Article 8
(right to respect for private life and his home) and/or Article 1 Protocol 1 (‘A1P1’)
(right to protection of property) of the European Convention of Human Rights
(hereafter ‘ECHR’).
[6] In addition, the Applicant argues that the difference of treatment between
short term sentenced prisoners and remand prisoners as regards the length of time
for which they are entitled to the payment of benefits while absent from the home,
gives rise to a breach of Article 14 ECHR (prohibition on discrimination) as it applies
to the enjoyment of his rights under Article 8 and/or A1P1. He characterises the
relevant protected status as the short term dual remand and sentenced prisoner who
is in a sufficiently analogous position with a short term remand prisoner, such that
the difference in treatment could not be justified.
[7] The First Respondent is the Northern Ireland Department for Communities
(‘DfC’). As a result of the issuing of Notices pursuant to Order 121, Rule 3(1) of the
Rules of the Court of Judicature (Northern Ireland), the Department for Work and
Pensions (‘DWP’) entered an appearance as a Second Respondent. Both Government
departments were represented by the same counsel team, and for reasons
foreshadowed in the ruling on interim relief, these proceedings were indebted to the
work done by the officials of both departments to research the various changes that
have taken place in this area of benefits provision since the 1990s and the reasons for
those changes: [2020] NIQB 52 §§9-12. The NIHE was also a Notice Party. Unless
otherwise necessary, I refer below to the ‘Respondents’ to denote the arguments that
were made jointly on behalf of the Minister and the Secretary of State.
[8] As regards the challenges under Article 8 and A1P1, the Respondents submit
that the relationship between the payment of benefits and the risk of possession
proceedings that would end in the loss of the home is too remote to engage either of
the substantive Convention rights, but in any event there is no human right to
benefits, such that the choice to provide continuing benefits for up to 13 weeks and
no more, could not be impugned as disproportionate.
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2 cases
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Taylor, Ryan and The Department for Communities and The Department for Work and Pensions - Judgement No.2
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Ryan Taylor and The Department for Communities and the Department for Work and Pensions
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