Update: welfare and benefits

The United Kingdom ratified the UN Convention on the Rights of Disabled People on 8 June 2009, and the Optional Protocol to the Convention on 7 August 2009. The Convention includes detailed provisions on independent living, habilitation and rehabilitation, personal mobility, health, access to justice and participation in public life.

The Convention is not directly effective. However, it is relevant both to the exercise of powers by public bodies and as an aid to interpreting domestic legislation. In addition, the Optional Protocol enables individuals and groups to petition the UN directly where a breach of the Convention is alleged and where domestic and EC law proceedings have failed to secure an effective remedy.

Local authority age assessments

In R(A) v London Borough of Croydon [2009] UKSC 8, the Supreme Court examined the role of the Administrative Court when determining challenges of local authority age assessments.

Age assessments are conducted by social services departments when unaccompanied asylum-seeking children request assistance under section 20(1) of the Children Act 1989. If a local authority decides that the young person is under 18, he or she will be supported by social services as a looked after child. If the local authority decides that the young person is 18 or over, the young person will be housed and supported by the Home Office as an adult under part VI of the Immigration and Asylum Act 1999.

The age assessments process is contentious. On the one hand, local authorities want to prevent the abuse of the more favourable support arrangements under the Children Act and have a difficult task doing this in the absence of reliable documentation or conclusive medical evidence. On the other hand, many young people complain of a hostile assessment process conducted by social services departments with a direct financial interest in the outcome of the assessment.

The Supreme Court's simple but ground-breaking response to these concerns was that where a local authority age assessment is challenged, the Administrative Court must itself determine the young person's age. The court must do so because whether a young person is under 18 is an objective question of fact with only a right or wrong answer. It is not an evaluative question in relation to which the court should defer to the judgment of local authorities. As a result, it is wrong to limit the Administrative Court's role to identifying procedural unfairness or Wednesbury unreasonableness.

As a result of the Supreme Court judgment, the Administration Court will need to decide how to adapt its normal procedures to cater for judicial review claims in which disclosure, expert evidence and live evidence from witnesses of fact are likely to be necessary. Presumably, the permission requirement will fall away in such cases.

However, the more interesting question is the extent to which the Supreme Court's judgment will affect the role of the Administrative Court in other contexts. In some cases, the answer will be clear from the way the legislation is drafted; for example, where the legislation provides that a power or duty will not arise unless the public body is satisfied that certain threshold conditions are met, then the role of the Administrative Court will be unaffected.

However, where the pre-condition is one of objective fact, and the legislation does not expressly provide that it is for the public body to determine whether the pre-condition has been met, there will be increased scope for arguing that the Administrative Court should substitute its own assessment, rather than restricting itself to considering conventional judicial review grounds of challenge.

Charging and equality duties

On 8 September 2009 the Court of Appeal handed down its judgment in R (Domb) v London Borough of Hammersmith v Fulham [2009] EWCA Civ 941, an equality duties challenge to a decision to introduce charging for homecare residential services.

Unlike some of the early disability equality duty cases in which the local authority in question had acted unlawfully by ignoring or giving only cursory consideration to the equality duties (for example, R (Chavda) v Harrow London Borough Council [2007] EWHC 3064 (Admin) and R (Meany) v Harlow District Council [2009] EWHC 559 (Admin)), Hammersmith and Fulham had integrated the consideration of the equality duties into their consultation exercise and had produced a detailed equalities impact assessment.

The problem was that although the impact assessment identified significant detrimental impacts, particularly on disabled people, the council said it was powerless to do anything about this because of an earlier and separate decision to cut council tax in the borough by three per cent.

Mrs Domb complained that the outcome of the consultation and the impact assessment were a foregone conclusion and, as a result, the council's consideration of the equality duties was tokenistic and inadequate.

The Court of Appeal said that it had considerable sympathy with Mrs Domb's criticisms. However, it decided that the council was not acting unlawfully by failing to consider alternatives which it could not afford given its earlier decision to cut council tax. However, the court made clear that had Mrs Domb acted sooner, and challenged the council tax cut decision itself, a different outcome may have prevailed.

Care planning for children

Child in need assessments continue to be a much underused preventative tool. Convincing social services departments that an assessment should be conducted frequently requires a threat of judicial review proceedings. Even when an assessment is conducted, the absence of an effective plan of action is common.

In R (B) v London Borough of Barnet [2009] EWCA 2842 (Admin), the local authority conducted an assessment of a very vulnerable 15-year-old girl with learning difficulties. She was at a high risk of sexual abuse and she had been out of mainstream schooling for over 18 months. The care plan section of the assessment was limited to recommending that referrals be made to other agencies for help.

In a judgment which cites extensively from the Framework for the Assessment of Children in Need and Their Families, the judge found that the assessment was unlawful. It was largely descriptive with little proper analysis of need. As to the care plan, what was called for was a 'detailed operational plan'; whereas what had been provided was lacking specificity and obviously inadequate.

The judgment is significant as being one of the first to consider the new section 11 Children Act 2004 duty to safeguard and promote the welfare of children and, in particular, the new statutory guidance entitled 'Safeguarding Children and Young People from Sexual Exploitation', published in July 2009. This guidance requires 'a proactive approach focused on prevention, early identification and intervention'. Merely saying that child protection procedures will be initiated if and when a current risk of harm is identified is unlikely to be sufficient to meet this new duty.

Defective benefit claims

On 10 June 2004, Mrs Novitskaya attended her local Jobcentre Plus office and handed in a note on which she had written: 'I would like'¦ income support or whatever else I am entitled to.' Then, on 24 June 2004, Mrs Novitskaya submitted a claim for housing benefit on an approved form. Mrs Novitskaya had to show that she had claimed housing benefit before 18 June 2004 in order for her claim for backdated housing benefit to succeed.

To do this Mrs Novitskaya relied on the defective claim rules. In particular, Mrs Novitskaya said that the 10 June 2004 note was a defective claim for housing benefit, and that because the failure to use an approved form had been remedied within four weeks of this initial approach (i.e. on 24 June), Brent was required to treat her claim as having been made on 10 June. Brent disagreed and said that because the 10 June note had not even mentioned housing benefit, it was clearly incapable of being a housing benefit claim.

The Court of Appeal disagreed with Brent's analysis and allowed Mrs Novitskaya's appeal (Novitskaya v London Borough of Brent [2009] EWCA Civ 1290). Parliament did not intend that the court should approach the question of what is a claim in an overly technical way. Allowances should also be made for the fact that claimants may not always know the name of the benefit they need. Provided a reasonable official can understand, with or without further enquiries, which benefit is being claimed, it is not necessary to name every benefit when making an initial request for assistance.

At the time of Mrs Novitskaya's approach for assistance, the relevant rules for determining whether a claim had been made were set out in regulation 72 of the Housing Benefit (General) Regulations 1987. Regulation 72 has since been repealed and replaced by regulation 82 of the Housing Benefit Regulations 2006. However, as regulation 82 is not materially different, the Court of Appeal's analysis will apply equally to requests for assistance made after the 2006 regulations came into force.

Possession proceedings

In Secretary of State for the Environment Food and Rural Affairs v Meier [2009] UKSC 11, the Supreme Court held that possession orders cannot be obtained against travellers in respect of land which the travellers have not yet come to occupy (partially overturning Drury v Secretary of State for the Environment [2004] EWCA Civ 200). However, the Supreme Court affirmed the Court of Appeal's decision that quia timet (i.e. pre-emptive) injunctions are a legitimate mechanism to try to prevent travellers moving to alternative sites.

Meanwhile, in Cosic v Croatia [2009] ECHR 80 and Paulic v Croatia [2009] ECHR 1614, the European Court of Human Rights has reiterated the need for article 8 proportionality to be considered by an independent tribunal even where there is no domestic law right of occupation.

These ECHR decisions highlight the inadequacy of the approach currently adopted by the UK courts following Doherty v Birmingham City Council [2008] UKHL 57. They also appear to be part of reason why, on 11 December 2009, the Supreme Court granted permission to appeal the Court of Appeal's decision in Manchester v Pinnock [2009] EWCA Civ 852. In Pinnock, an unsuccessful attempt was made to rely on article 8 to defend a demoted tenancy possession claim. The outcome of the Supreme Court's reconsideration of the role of article 8 in residential possession proceedings will be eagerly anticipated by all housing lawyers.

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