Court makes interim relief order in case challenging prisoner’s entitlement to help with housing costs

Housing benefit regulations allow for ongoing payment of benefit while the claimant is absent from home in certain circumstances. The length of time during which benefit can be paid depends on the reasons for the claimant’s absence. A prisoner’s entitlement to continue to receive Housing Benefit while in custody depends on whether the person is on remand or sentenced. A person on remand can continue to receive Housing Benefit as long as the period in custody is not expected to exceed 52 weeks, while a sentenced prisoner will only remain entitled if the anticipated time in custody is likely to be 13 weeks or less. Solicitor Jill Downing sets out an application from a prisoner, who is challenging the decision to end his claim for housing Benefit, for interim relief to cover his housing costs pending a decision in the case.

In an ongoing case, a prisoner has challenged a decision to end his entitlement to Housing Benefit. During his time in custody, the prisoner’s status changed from being on remand, to a serving and remand prisoner and back to being on remand. The period he spent serving a sentence was 16 weeks, and his entitlement to receive Housing Benefit ended on receipt of this sentence, despite the fact that he continued to have the status of being on remand.

Delays led to applicant seeking interim relief

The main issue for the court to determine is whether the applicant’s non-entitlement to receive housing benefits for the longer time frame of 52 weeks is compatible with Article 8 and/or Article 1 Protocol 1, read with Article 14, of the European Convention of Human Rights (‘ECHR’). However, the hearing was delayed multiple times as a result of COVID-19. To counter the impact of this delay, the applicant applied for interim relief, seeking temporary payment of a sum equivalent to his housing benefit.

Outline of the issues in the case

 In an application for interim relief of this nature the court is required to consider the seriousness of the matter to be tried as a discrete issue in its own right and as part of the overall exercise of  discretion.

 In granting leave, the court was satisfied that the application disclosed an arguable case of what might turn out to be a successful challenge once further consideration is given to the issues at the full hearing. Judge Friedman stated :

“ it would appear that the timing and manner in which the various charges were brought against this particular Applicant could have caused him to serve less than 13 weeks as a sentenced prisoner that would not then have stopped the clock in the way in which it has. The idea that a date of an early guilty plea, or what remand time is taken into consideration, could make such a substantial difference as it has done to this Applicant’s case is a matter that, in my judgment, requires closer examination

Interim relief in public law cases:

Section 91 of the Judicature (Northern Ireland) Act 1978 empowers the Court to grant a mandatory or other injunction “in any case where it appears to the court to be just and convenient to do so for the purpose of any proceedings before it ....”

The principles governing the grant of interim relief in judicial review proceedings are those contained in American Cyanamid Company v Ethicon Limited [1975] AC 396, 407G-H and 408F-409D but must be modified as appropriate to a public law context, for which seen generally R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin) §§6-16. [19] The judgement of Cranston J in the Medical Justice case draws attention to the additional considerations to bear in mind when one of the parties is a public authority, and there is a triangulation of interests at stake in the public law context, namely the Applicant, the public authority respondent and the broader public interest. How those three interests interact, however, will invariably be case specific. The standard American Cyanamid criteria are:

1. Whether there is a serious question to be tried, also referred to as a real prospect of success;
2. What would be the balance of convenience of each party should the order be granted (in other words, where does that balance lie?); and
3. Whether there are any special factors.

 As stated in McLaughlin & Harvey Limited v Department of Finance and Personnel [2008] NIQB 25 per Deeny J at §6 in applying the various limbs of the American Cyanamid test the Court has an “overall discretion to do what is just and convenient in the circumstances.”

Application to the facts of this case

 The court noted it was agreed by the parties that by granting leave there is a serious question to be tried but also serious counter-arguments to be resolved at the full hearing.  Also it is necessary in the public law field for caution to be applied before making orders that would displace the ordinary presumption that a public authority should not be restrained from exercising its statutory power or doing its duty to the public: Smith v Inner London Education Authority [1978] 1 All ER 411, 418-419. The court highlighted  that If this case concerned a mandatory order to supply the Applicant with social housing, or to actually suspend the operation of the Regulations in relation to all short term prisoners, then” there is a line of case law in the housing law field that would arguably require the showing of a strong prima facie case.”

The second aspect of the test, and more importantly, is the Court must consider where the balance of convenience will lie. This is a more complex issue in public law than it generally is in private law. The public interest is strong in permitting a public authority to continue to discharge its duties. That wider public interest cannot be measured simply in terms of the financial or individual consequences to the parties .

The Judge quoted “All in all, we are in test case territory”, and it is “no part of the Court’s function at this stage of the litigation to try to…decide difficult questions of law which call for detailed argument and mature consideration”: American Cyanamid p. 406H.

While it is relevant that this relief would be made in the face of apparent legislative intent, the legislation is a statutory instrument, and not a primary Act, and the issue at stake has not been the subject of authoritative case law guidance.

Outcome of the case

The Judge highlighted :”The order I would be minded to make would not be intended to suspend the operation of the impugned provision, and would be simply designed to keep on track during a public health crisis an expedited claim designed to test the merits of an important, but complex, human rights argument that it is now in everyone’s interests to determine quickly.” “Given those particular circumstances, I am prepared to make a limited order, which is predicated upon the exceptional situation of the COVID 19 emergency, and which has been compelled by the interruption of the timetable for the expedited…..I am clear that overall justice and convenience requires an immediate initial order for payment of £425 for the equivalent of one month’s rent which is just about to be due on the first day of the month. “

While the exceptional circumstances of the Covid pandemic were an important factor in the Court making the interim relief it is an important reminder that the court has the power to do so. We await the outcome of the substantive hearing on the challenge to the regulations.