Judgment As Approved by the Court

Similar documents
IN THE SUPREME COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE MILTON KEYNES COUNTY COURT (HIS HONOUR JUDGE TYRER)

Before: LORD JUSTICE THORPE LORD JUSTICE LLOYD and LORD JUSTICE PATTEN Between: KOTECHA

Before: NEIL CAMERON QC Sitting as a Deputy High Court Judge. Between:

Before : LORD JUSTICE MUMMERY LORD JUSTICE LONGMORE and MR JUSTICE LEWISON Between :

B e f o r e: MR JUSTICE BURTON. Between: THE QUEEN ON THE APPLICATION OF ASSOCIATION FOR INDIVIDUAL AND GROUP PSYCHOTHERAPY & OTHERS Claimant

The Queen on the application of Yonas Admasu Kebede (1)

Re L-A (Children) [2009] EWCA Civ 822 (14 July 2009) Case No: B4/2009/1297 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)

Before MASTER OF THE ROLLS LORD JUSTICE FLOYD LORD JUSTICE SIMON. Between: ENGEHAM. - and - LONDON & QUADRANT HOUSING TRUST

Before : THE HONOURABLE MR JUSTICE SUPPERSTONE Between :

IN THE COUNTY COURT AT CENTRAL LONDON Thomas More Building Royal Courts of Justice, Strand, London WC2A 2LL. Before:

B e f o r e: MR JUSTICE DINGEMANS. Between: 93 FEET EAST LTD LONDON BOROUGH OF TOWER HAMLETS

B e f o r e: MR JUSTICE OUSELEY. Between: THE QUEEN ON THE APPLICATION OF ASSOCIATION OF BRITISH COMMUTERS LIMITED Claimant

B e f o r e: LORD JUSTICE FLOYD EUROPEAN HERITAGE LIMITED

Before : MR JUSTICE LEGGATT Between : LONDON BOROUGH OF RICHMOND UPON THAMES. - and

DECISION OF THE SOCIAL SECURITY COMMISSIONER

Before: MR RECORDER BERKLEY MISS EASHA MAGON. and ROYAL & SUN ALLIANCE INSURANCE PLC

B e f o r e : LORD JUSTICE THORPE LORD JUSTICE CLARKE IN THE MATTER OF RE: S (A CHILD)

APARTMENT OWNERS NETWORK NOVEMBER 2014

SOCIAL SECURITY ACTS

Before: HIS HONOUR JUDGE WULWIK Between: - and -

The Law Commission (LAW COM No 297) RENTING HOMES: THE FINAL REPORT VOLUME 2: DRAFT BILL

WHERE NOW SUMAL? THE IMPLICATIONS OF BRENT LONDON BOROUGH COUNCIL v SANJAY SHAH & OTHERS. and

Court fees are payable at the time you file any document or commence any process requiring a fee, unless otherwise stated.

B e f o r e: LORD JUSTICE STAUGHTON LORD JUSTICE ALDOUS SIR JOHN MAY B E T W E E N : GEORGE SAVVA AMALIA SAVVA Plaintiff/Appellant.

These notes relate to the Lords Amendments to the Welfare Reform Bill, as brought from the House of Lords on 31 January 2012 [Bill 302].

B e f o r e: MRS JUSTICE LANG. Between: THE QUEEN ON THE APPLICATION OF DEAN Claimant

Before : MR JUSTICE KNOWLES CBE Between : (1) C1 (2) C2 (3) C3. - and

Guide to the Patents County Court Small Claims Track

Before : LADY JUSTICE ARDEN and LORD JUSTICE BRIGGS Between : - and -

Before : LORD JUSTICE GROSS LORD JUSTICE LEWISON and LORD JUSTICE FLAUX Between :

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES CIRCUIT COMMERCIAL COURT [2018] EWHC 3021 (Comm) Royal Courts of Justice Friday, 12 October 2018

Judgment As Approved by the Court

Applicant Seal PENAL NOTICE ]1 DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE YOUR ASSETS SEIZED.

Case: 4:18-cv CDP Doc. #: 1 Filed: 08/06/18 Page: 1 of 12 PageID #: 179

Friday, 18th July 2003

The Saskatchewan Housing Corporation Regulations

Instruction to transfer-up (if necessary) and enforce an order of possession by Writ of Possession page 2

B e f o r e: MR JUSTICE OUSELEY. SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT Defendant

Judgement As Approved by the Court

LOWIN. and W PORTSMOUTH & CO. JUDGMENT (As Approved)

7:12 PREVIOUS CHAPTER

B e f o r e: LORD JUSTICE DAVIS MR JUSTICE CRANSTON. Between:

Before : THE HON. MR JUSTICE POPPLEWELL Between : DACORUM BOROUGH COUNCIL

B e f o r e: LORD JUSTICE JACKSON LORD JUSTICE LINDBLOM. BRADFORD TEACHING HOSPITALS NHS FOUNDATION TRUST Respondent

Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES

Instruction to transfer-up (if necessary) and enforce a County Court order of possession by Writ of Possession

JUDGMENT. The Child Poverty Action Group (Respondent) v Secretary of State for Work and Pensions (Appellant)

Explanatory Notes to Homelessness etc (Scotland) Act 2003

B e f o r e : LORD JUSTICE AULD LORD JUSTICE WARD and LORD JUSTICE ROBERT WALKER

DISTRICT COURT OF QUEENSLAND

IN THE HIGH COURT OF JUSTICE BETWEEN. PRIME EQUIPMENT RENTALS LIMITED Claimant AND AND THE NEW INDIA ASSURANCE COMPANY (TRINIDAD & TOBAGO) LIMITED

Child Maintenance and Other Payments Bill

Before: LORD JUSTICE THORPE and LORD JUSTICE MAURICE KAY IN THE MATTER OF C (Children)

Before : LORD CHIEF JUSTICE OF ENGLAND AND WALES. Practice Direction (Costs in Criminal Proceedings) 2015

B e f o r e: LORD JUSTICE LEWISON LORD JUSTICE FLOYD

Shortfalls on Sale. Toby Watkin

B e f o r e: PRESIDENT OF THE QUEEN'S BENCH DIVISION MR JUSTICE TUGENDHAT. Between:

JUDGMENT. Junkanoo Estate Ltd and others (Appellants) v UBS Bahamas Ltd (In Voluntary Liquidation) (Respondent) (Bahamas)

Neutral Citation Number: [2009] EWHC 1190 (Admin) Case No. CO/6528/2007 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT

B E F O R E: LORD JUSTICE BROOKE (Vice President of the Court of Appeal, Civil Division)

Property Boundaries (Resolution of Disputes) Bill

Before: MR ALEXANDER NISSEN QC Between:

B e f o r e : MASTER OF THE ROLLS LORD JUSTICE WARD and LORD JUSTICE SEDLEY

B e f o r e: LADY JUSTICE SHARP DBE MR JUSTICE HOLROYDE. HIS HONOUR JUDGE LAKIN (Sitting as a Judge of the CACD) R E G I N A DENNIS OBASI

2011 No. 586 (L. 2) SENIOR COURTS OF ENGLAND AND WALES COUNTY COURTS, ENGLAND AND WALES. The Civil Proceedings Fees (Amendment) Order 2011

A nightmare for social landlords and their tenants?

Before: LADY JUSTICE ARDEN LORD JUSTICE LONGMORE and LORD JUSTICE TOULSON Between:

GENERAL INFORMATION FOR FILING SUIT IN JUSTICE COURT

BERMUDA FINANCIAL ASSISTANCE ACT : 24

B e f o r e: THE LORD CHIEF JUSTICE OF ENGLAND AND WALES (The Lord Woolf of Barnes) LORD JUSTICE WALLER and LORD JUSTICE LAWS

B e f o r e: MR JUSTICE BLAIR Between: THE QUEEN ON THE APPLICATION OF ABDULLAH Claimant

ON APPEAL FROM THE MILTON KEYNES COUNTY COURT

Please refer to Formfinder for a list of all court forms

Costs Awards in Planning Appeals

B E F O R E: TIMOTHY BRENNAN QC (Sitting as a Deputy High Court Judge) THE QUEEN ON THE APPLICATION OF MAYMOUN ZARZOUR (CLAIMANT)

Civil Procedure II - Part II: Civil proceedings in the High Court Multi Choice Q & A 2014 S1 3 April 2014: Unique number:

IN THE COURT OF APPEAL SAINT LUCIA FURNISHINGS LIMITED. and

Education Act 1986 ARRANGEMENT OF SECTIONS CHAPTER 40. of the Local Government, Planning and Land Act 1980 for

Mungo Wenban-Smith. Practice Areas. Year called 2004

THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV

Dispute Resolution Around the World. Kazakhstan

2014 No. 1 ENFORCEMENT, ENGLAND AND WALES. The Taking Control of Goods (Fees) Regulations 2014

EPO 125th Session Judgment No. 3953

Neutral Citation Number: [2009] EWHC 2452 (QB) IN THE HIGH COURT OF JUSTICE QUEEN S BENCH DIVISION Royal Courts of Justice Strand London WC2A 2LL

Before : LORD JUSTICE THORPE LORD JUSTICE RIX and LORD JUSTICE STANLEY BURNTON Between :

Legal Aid, Sentencing and Punishment of Offenders Bill: Implications for Personal Injury Litigation

Before : LORD JUSTICE LAWS LORD JUSTICE RICHARDS and LORD JUSTICE LAWRENCE COLLINS Between :

FRENCH CONNECTION LTD & OTHERS. - and - FRESH IDEAS FASHION LTD & ANOTHER

Ahmad Al-Naimi (t/a Buildmaster Construction Services) v. Islamic Press Agency Inc [2000] APP.L.R. 01/28

RESIDENTIAL TENANCY DISPUTE RESOLUTION SERVICE REGULATION

Before : (1) HONDA MOTOR EUROPE LIMITED (2) HONDA OF THE UK MANUFACTURING LIMITED - and - (1) TONY POWELL (2) HONDA GROUP UK PENSION SCHEME LIMITED

Repudiatory Breach of Contract: The Need for Aggrieved Party to Make and Communicate a Clear Choice as to Whether the Contract is at an End

IN THE HIGH COURT OF JUSTICE BETWEEN AND BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER REASONS

B e f o r e: LORD JUSTICE BURNETT MRS JUSTICE CARR. Between: THE QUEEN ON THE APPLICATION OF COPP Claimants

RPT-G6. Mobile Homes guidance

Harry Fitzhugh v Anthony Fitzhugh

Before: MR A WILLIAMSON QC (sitting as a Deputy High Court Judge) Between :

RETIREMENT VILLAGES ACT 1989 No. 74

INSTRUCTIONS. You must pay a filing fee when you file this complaint. If you do not, no action will be taken on your case.

(company number 2065) - and - (company number SC )

Transcription:

Case No :CCRFT 1998/1488/CMS 2 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE LOWESTOFT COUNTY COURT (HIS HONOUR JUDGE MELLOR) Royal Courts of Justice Strand, London WC2A 2LL Wednesday, 1 December 1999 Before: LORD JUSTICE PILL LORD JUSTICE MAY and LORD JUSTICE HALE WAVENEY DISTRICT COUNCIL v BARRY KENNETH JONES Appellant Respondent (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 180 Fleet Street London EC4A 2HD Tel No: 0171 421 4040 Fax No 0171 831 8838 Official Shorthand Writers to the Court) Mr B McGuire (instructed by Waveney District Council Legal Department) appeared for the appellant. Mr D Bean QC (instructed by Messrs Nash & Co, Plymouth, Devon) appeared for the respondent. Judgment As Approved by the Court Crown Copyright 1

LORD JUSTICE PILL: JUDGMENT Wednesday, 1 December 1999 This is an appeal, by permission of the judge, from a decision of His Honour Judge Mellor sitting at the Lowestoft County Court on 21 September 1998. Judge Mellor dismissed an appeal by Waveney District Council ( the Council ) from a decision of Deputy District Judge Rollin made on 3 June 1998. The District Judge had given judgment for Mr Barry Kenneth Jones ( Mr Jones ) in the sum of 1,070. Mr Jones is the landlord of a number of properties occupied by tenants who qualify under statute for housing benefit. This benefit is often paid direct to the landlord and was in this case. The relevant procedures are set out in the Housing Benefit (General) Regulations 1987 ( the 1987 Regulations ). These include a detailed procedure by means of which the Council may recover housing benefit which they say was overpaid. In this case, the Council were of the opinion that Mr Jones was overpaid with respect to 35 Rotterdam Road, Lowestoft. On 22 December 1997, they deducted the amount they had determined as overpaid when sending to Mr Jones a cheque for sums due upon other of his properties. On 14 January 1998, Mr Jones claimed the sum deducted, 1,070, by County Court summons. In their defence, the Council stated that there was no money owing to Mr Jones. The sum claimed was an overpayment of housing benefit made by the defendant to him and as such was recoverable from him. The defendant was entitled to recover the sum due to it under the legislation. The wording suggests a claim rather than a defence but the claim made is the right to deduct from the benefit payable on other properties the amount they had determined to be overpaid on this one. The procedure whereby the Council may recover an overpayment includes an obligation to notify the recipient of certain matters, including his right to request a statement of reasons for their determination. It is unnecessary in this case to set out the provisions of Regulations 76 to 83 and Schedule 6 of the 1987 Regulations because it is common ground that the procedure required by the Regulations was not followed by the Council. Indeed we have not been referred to them. Unlike in the case of London Borough of Haringey v Awaritefe (unreported 26 May 1999), where the statutory scheme is set out in the judgments, it has not been contended, and cannot now be contended before this Court, that there had been substantial compliance with the procedure required by the regulations. The Court in that case found substantial compliance under the 1987 Regulations, following a determination. 2

Following the determination that housing benefit had been overpaid, Judge Mellor found that, having failed to follow the procedure, the Council were not entitled to invoke the offset procedures. He held that the determination of overpayment itself can only be challenged by judicial review; but that the paying authority has to be in a position to show that a public law determination of overpayment has been made before it can enforce a deduction. For the Council, Mr McGuire submits that, where a statutory scheme provides for payments by a public body, and unless the scheme provides otherwise, the obligations of the public body are enforceable only in public law by an application for judicial review. It is not open to a person claiming to be entitled to a sum of money under the 1987 Regulations to bring an action in the County Court for its recovery. Mr McGuire relies upon the statement of Geoffrey Lane LJ in Wyatt v Hillingdon LBC (1978) 76 LGR 727, 733 cited with approval by Lord Hoffmann in O Rourke v Camden LBC [1998] AC 188, 193. The plaintiff in that case had claimed damages from his local authority for failure to provide benefits under the Chronically Sick and Disabled Persons Act 1970: 3 It seems to me that a statute such as this which is dealing with the distribution of benefits or, to put it perhaps more accurately, comforts to the sick and disabled does not in its very nature give rise to an action by the disappointed sick person. It seems to me quite extraordinary that if the local authority, as alleged here, provided, for example, two hours less home help than the sick person considered herself entitled to that that can amount to a breach of statutory duty which will permit the sick person to claim a sum of monetary damages by way of breach of statutory duty. (Lord Hoffmann would wish to substitute the word was for considered herself in that paragraph). Mr McGuire also relies upon the decision of this Court in Haringey LBC v Cotter (1997) 29 HLR 682. The counter-claiming defendant in that case was seeking to establish a claim for breach of statutory duty, alleging that the Council had failed to pay arrears of rent allowance due to him. It was held that the 1987 Regulations provided a detailed, self-contained and exhaustive procedure for enforcing the duties of a local authority in relation to the determination and payment of housing benefits. Mummery LJ giving the judgment of the Court, stated, at p 687: In our judgment, the application of the relevant principles to this case leads to the conclusion that Parliament did not intend that the 1992 Act and the 1987 Regulations should confer on claimants or any other person, such as a landlord, a private law right of action for breach of duty in relation to the payment of housing benefit. The legal obligations of the Council under the 1987 Regulations are enforceable by other means i.e. by pursuing the

procedure prescribed in the 1987 regulations and, if appropriate, by an application for judicial review of the public law duties and discretions of the Council, as, for example, in R v Stoke City Council ex p Highgate Projects (1994) 26 HLR 551. In my judgment the judge reached the correct conclusion. A claimant who seeks to obtain relief must normally follow the procedures set out in the Regulations, as this Court held in Cotter. Where, however, as in this case, the Council have not themselves followed the procedures which they are obliged to follow under the regulations, and have thereby deprived the claimant of the protection and opportunities offered him by the regulations, he is entitled to bring a County Court action. In substance, by their defence the Council were seeking to recover, under the regulations, what they had determined to be an overpayment under the regulations. It is conceded that if a Council purported to make a payment by cheque of housing benefit they had determined to be due, but declined to sign the cheque, the sum determined to be due would be recoverable in the County Court. That would be a mere debt collecting exercise for which an ordinary action is appropriate. Such an action is also appropriate in present circumstances where the Council have, by their own conduct, deprived the claimant of his opportunity to challenge, under the statutory procedures, the determination by the Council that there has been an overpayment. The procedural defect in this case has the same effect as it did in Warwick District Council v Freeman (1994) 27 HLR 616 where a defendant landlord successfully resisted a claim by the Council in the County Court, for the return of housing benefit allegedly overpaid, because of the failure of the Council to follow the procedures under the 1987 Regulations. Hale J, with whom Kennedy LJ agreed, stated in this Court that the local authority have not got their claim for repayment off the ground. In Cotter, the Court did not doubt the correctness of Freeman, Mummery LJ stating at p 689: Further, there is no allegation that there was a refusal or failure to make a determination at all. There is no allegation of a flaw in the procedure for internal and external review of any determination that was made (cf Warwick DC v Freeman (1994) 27 HLR 616 at 619, 620, where, in respect of a county court claim for an overpayment, a defence was successfully raised that the local authority had failed to follow the statutory procedure for the determination of the recoverable overpayment under Part XI). The same approach is required in my judgment whether the claimant of benefit is, as in Freeman, a defendant or, as in the present case, a plaintiff. Evidence of compliance by the Council with the statutory procedures they are required to follow, consequent upon a determination that there had been an overpayment, would enable the Council to defeat the County Court claim in circumstances such as the present. 4

For those reasons I would dismiss this appeal. LORD JUSTICE MAY: I agree. LORD JUSTICE HALE: I also agree. Order: Dismissed with costs; leave to appeal refused. 5