Outside the jobcentre
Dealing with the indirect consequences
of right to reside decisions
Tom Royston
Garden Court North, 30 November 2015
1. This paper deals with three issues relating to ‘right to reside’ social security
problems:
a. getting access to other public services for which a right to reside is
necessary;
b. speeding up resolution of the social security problem;
c. defending possession proceedings brought due to HB non payment.
(a) Receiving public services pending a determination of a right to reside
2. There is limited scope for arguing that a claimant should be paid benefit while he
appeals against a decision that he does not have a relevant right to reside. Indeed,
it can be difficult to argue that a claimant should be paid benefit even after his
appeal has succeeded, if SSWP is appealing it further, because of the broad scope
of s 21 Social Security Act 1998: R (on the application of Sanneh) v Secretary of
State for Work & Pensions [2012] EWHC 1840 (Admin) (30 April 2012).
3. The position is different when not involving cash benefits. Consider a person who
needs day-to-day services (for example temporary homeless accommodation),
but is excluded from them on the ground of lack of a relevant right to reside. If he
has an arguable case for asserting a right to reside, and is being caused
immediate hardship, he should consider seeking an emergency injunction
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requiring the relevant authority to provide those services pending challenge to
the right to reside decision.
(b) Speeding up decision making
4. Decision making in right to reside cases can be very slow. Two options exist:
a. speed up the original decision maker’s decision making; or
b. if there has been a decision, speed up the tribunal proceedings.
5. The SSWP’s failure to make a decision can be challenged in judicial review
proceedings. You may wish to argue that an exhaustive examination of your
client’s circumstances is itself unlawful: the UK claims to abide by its obligation
under Art 14 of Directive 2004/38 EC not to carry out right to reside checks
‘systematically’. See Commission v UK - Opinion of Advocate-General Villalón
[2015] EUECJ C-308/14-O (6 October 2015), §94.
6. Regarding tribunal proceedings, the FTT has the power to list hearings quickly in
urgent cases. Find out more:
http://www.cpag.org.uk/content/expedite-appeal
(c) Discrimination and possession proceedings
7. Non-payment of housing benefit will often cause a landlord to bring possession
proceedings. A common reason for non-payment of HB to EEA nationals is that
the local authority has decided that a claimant has no right of residence, or has
the wrong kind of right of residence.
8. Where there are grounds for arguing that the HB entitlement decision is wrong,
consider whether the possession proceedings are unlawfully discriminatory. If
they are, that affords a defence to the proceedings.
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9. You cannot normally rely on housing benefit problems as a defence to mandatory
grounds rent arrears possession proceedings: Marath v MacGillivray (1996) 28
HLR 484 (CA). One might in principle, at least against social landlords, defend
mandatory grounds cases on ‘public law’ grounds, but the circumstances in
which that can be done are restrictive, and most defences of that kind will be
summarily dismissed: London Borough of Hounslow v Powell [2011] UKSC 8,
[2011] 2 AC 186, §33. Therefore discrimination is a particularly useful argument
to run in ‘mandatory grounds’ possession cases (and it is not restricted to social
landlords).
10. Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15, [2015] 2 WLR
721, §36 is authority for the proposition that only in ‘rare’ cases will it be
appropriate to dispose of discrimination defences without a full trial.
11. The resort to possession proceedings in cases of delayed HB payment can be
argued to be indirectly discriminatory on nationality grounds, in that EU
nationals will be particularly likely to encounter HB problems which take a long
time to sort out.
12. There is no requirement (either in EU law or under the Equality Act 2010) to
demonstrate the likelihood of disparate impact with statistical evidence or other
actual evidence of the provision in practice: Secretary of State for Work and
Pensions v Bobezes [2005] EWCA Civ 111, R (IS) 6/05, §45.
13. If a court accepts prima facie discrimination has been shown, it will then be for
the landlord to prove that the discrimination is justified.
Tom Royston
Garden Court North
30 November 2015
This handout does not
constitute legal advice.
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