Anyone paying close attention to the bedroom tax appeal issues will know by now that the Secretary of State at the DWP has been granted permission to appeal case CH/153/2014 at the Upper Tribunal. Additionally the Upper Tribunal has determined that all room size and room usage appeals are to be ‘stayed’ until after this ‘lead case’ has been heard and also stayed until after the almost inevitable Court of Appeal hearing that will follow.
I sent a copy of this UT Direction to the Nearly Legal site which was acknowledged who stated in a brief blog post about this :
Secondly, (and thanks Joe) I have been sent a copy of a letter staying an appeal to the Upper Tribunal, which states that all appeals on the issue of room size and use are stayed pending determination of a ‘lead case’ and any further appeal in that case. This is case CH/153/2014.
Does anyone know this case and whether it is one of the FTT decisions we already know about? I am presuming that the claimant is represented and that this is one reason the case has been chosen. If they aren’t, they need to be, right away!
“I am presuming that the claimant is represented and that this is one reason the case has been chosen. If they aren’t, they need to be, right away!“
Giles at Nearly Legal is not known for his wanton use of the exclamation mark and I couldn’t agree more that the appellant needs the best representation.
Late yesterday I saw some documented proof on Facebook which said this lead case is a failed FTT case and one which has been given permission to be appealed by the Upper Tribunal.
As I have written UT appeal submissions for failed FtT cases that have been given permission to appeal, some of which were not for cases I took. that made me scour my files even though I couldn’t remember a joint room size / usage case that had failed at FtT.
I did find a submission I drafted 28 December 2013 on room size and a few other procedural matters together with a determination notice from the Upper Tribunal from 8 April granting permission to appeal with the UT reference number CH153/2014, the lead case that has taken on a new importance. The tenant came to me to write the appeal at the last minute and hence reading it back it is not the most cogently articulated appeal although I never saw sight of the original submission yet it served the purpose of having permission granted.
At that time the significance of this reference number was of no consequence. I do not have full bundle of papers of this case or the statement of reasons but I know who does and who the representatives are for the tenant. There was a parting of ways which is of no consequence nor will I air it here. The representatives know what they are doing regarding bedroom tax arguments and will have sought and received legal representation and I would be amazed if they had not.
I will however reveal some facts of this case.
- This is a very early case and pre dates the Fife cases by a few days and does not contain room usage arguments at all which surprises me as the stay from this lead case applies to all room size and / or room usage cases according to the UT Direction Notice.
- This lead case has the disputed room measuring less than 50 square feet.
- The case was submitted as a paper based appeal and did not have an oral hearing
- I never saw sight of the original paper based submission though I am fairly certain that the room size argument was based on the 1985 Housing Act alone or at least primarily on the overcrowding provisions therein and not other room size arguments
The case was drafted and submitted by a largish firm of solicitors (60 or so staff) who have been around for over 60 years. The background to which is a relative of the appellant worked for the law firm and one of the partners (I was told) drafted the original FTT case and I can understand why the appellant chose this option. However, why a partner in a law firm would submit a paper based appeal when oral hearings have a far higher success rate (60% or so) surprised me greatly then and still does.
The solicitor then did not take on the appeal for reasons unknown and I was asked to draft the appeal at very short notice by the tenant which I did and dated 28 December 2013 and I found this late today on my laptop along with a copy of the UT permission in a letter dated 8 April 2014 which detailed permission being granted on 24 March 2014 with the Reasons stating:
The “room size” point merits further consideration. (Permission to appeal is not, however, limited to this ground alone.)
It then states some Case Management Directions to the Secretary of State having a month to intervene and mentions the Fife cases being appealed. The FtT judge in the Fife cases Simon Collins QC gave permission on 17 December 2013 for those cases – two of the 5 heard that day of which 4 won.
I presume the DWP here are seeking to rule the 1985 Housing Act does not read across and in the Fife cases that the 1987 Housing (Scotland) Act doesn’t either. So why these two Acts are the same the DWP is seeking to cross the ‘t’s an dot the ‘i’s with both Acts and the reader may wish to cure their insomnia by looking at in pari materia and cross contextual construction of an ordinary English word too.
I no longer have contact with the appellant’s representative nor do I know whether they have secured legal representation for this lead case. I hope they have as this case is hugely important to all appellants successful at FtT and those who lost at FtT and have been granted permission to appeal, as well as the tenant involved here all deserve the best possible legal representation.
The representatives must have been informed a few months back that this was to be a ‘lead case’ as the UT Directions Notice to stay all other cases on CH/153/2014 was dated 18 June 2014.
I imagine that the silence on this issue which has caused the understandable consternation – especially as word always gets out – for what must be two months or more is due to the insistence of legal representation gained, which I can fully understand and appreciate.
The purpose of the above is to stop the speculation which is rife across social media and note my comments above why I suggest a media silence has happened which I assume – and I would agree with and to if I was involved in this case – is because the legal representation for the lead case has requested it.
Copy of the UT letter