IN THE HIGH COURTS OF JUSTICE Claim Number
QUEEN`S BENCH DIVISION
ADMINISTRATIVE COURT
BETWEEN
Graeme and Lisa Morgan Claimants
And
Hastings Borough Council Defendant
Aquila House
Breeds Place
Hastings
East Sussex
TN343UY
STATEMENT OF FACTS BACKGROUND AND
GROUNDS FOR JUDICIAL REVIEW
AND RELIEF SOUGHT
(SECTIONS 5,6 AND 8 OF CLAIM FORM)
1. The claimants seek to challenge the conduct of Hastings Borough Council and the validity of their decisions following a review of the claimants entitlement to Housing and Council tax benefit of 04th December 2010 to reduce, restrict or withhold a housing and council tax benefit and to deduct payments towards a debt for which the claimant is not liable.
The claimants question the legality of the defendants actions and the unreasonableness of their decisions and procedural impropriety.
2. Claimant 1 (Graeme Morgan) is a known 58 year old disabled person to the defendant. Claimant 2. Lisa Morgan is his wife and known as a carer to the defendant. They are the tenants of a four bedroom property with dining room, lounge, bathroom and one inside toilet and one outside toilet. None of the bedrooms or the upstairs bathroom, toilet in the property has ever been accessible to claimant 1 and neither has the rear garden. Three of the bedrooms in the property were classified by the defendant as being a stage 1 health hazard because of structural and damp and mould problems. The defendant classified the fourth bedroom as being a stage 2 health hazard because of damp and mould problems. The dining room was classified by the defendant as a stage 1 health hazard because of damp and mould issues. The outside toilet is classified by the defendant as being dangerous and unsuitable for claimant 1. Both claimants have since November 2005 lived and slept in the lounge room of the property which is also classified by the defendant as a stage 1 health hazard because of damp and mould. Claimant 1 cannot access the other areas of the property whether there were health hazards in place or not. It is our joint claim that the defendant is unreasonable to apply any council tax charges for those areas of the property that are a health hazard or for the periods that they have been or remain inaccessible to the claimants or their family. There were many more defects within the claimants property the most serious including roof spread, collapsed walls along the front and rear of the property, no gas, electrical defects needing the house to be rewired
3. If the claimants home had been given the necessary adaptations prior or shortly after the tenancy began then the claimants would have benefited from a 25% council tax and housing benefit reduction which was created to benefit and assist tenants like the claimant but because these adaptations have been unreasonably withheld or should have been considered automatically by the defendant with each application the defendants decision that the claimants are not entitled to this disability classification is unreasonable as it has never been allowed to be a part of any claim. it was in the January 2011 that the claimants became aware that the defendants previous decisions could be flawed or that they might be liable for putting both claimants at risk by their decisions. There are plans to install the necessary aids, adaptations sometime during 2011 they say*. It is the claimants joint claim that they should have been awarded the discount for the entire period of the tenancy or that those parts of the property that were, are uninhabitable or inaccessible should have been classed as exempt from rent or council tax charges for the sake of common fairness, and that the defendants have failed in their statutory duty to protect and support the claimants because of claimants 1 disabilities and,or claimants 2 duties as his carer. Human rights Act; Article 8 (prohibition of discrimination) seeking to prevent discrimination on any ground. Therefore, council's may not treat some members of society favourably, while in other cases using all their powers to obstruct lawful development and prevent targeted persons enjoying their home.
* Correspondence received on the 10th February 2011 states that adaptations will now be delayed. This notice was delivered to the claimants by Jon Head of Amicus Horizon Housing Association.
4. The defendant issued a new benefit claims pack to the claimants with instructions that it must be completed and returned to their offices within 30 days. on the 11th November 2010. 19 days after issuing these forms the defendant declared both claimants as being out of time.
5. The claimants completed the benefit forms and returned them to the defendants offices on the 11th November 2010 well within the specified 30 day period. All necessary documents; driving licenses, medical records, tax credit and disability allowance award notices were attached to the defendants forms in accordance with the defendants instructions. Instead of just accepting the sealed package the assistant at the counter opened the files and declared the application form as being of a type that the council no longer used. She then gave a new form to the person who had delivered the pack and ordered him to copy the information from the submitted form to the new form, when he objected and pointed out to the assistant that he was not the claimant and did not know how to fill in the new form the assistant called for a supervisor and he was given all of the accompanying documents and told to carry out the task even though a notice on the form stated that anyone submitting inaccurate information would be committing a criminal offence.
6. The defendant claimed that the new claims form was different to the form originally supplied by them which they said was outdated and the person delivering this form on behalf of the claimants was forced to answer questions and provide information about the claimants that he could not possibly know and he could only guess answers to questions or try to locate the correct replies from the other confidential documents he had been given by the defendant.
7. Para`s 5 and 6, above took place without any attempt to contact or obtain the consent of either of the claimants. The defendant then ordered the person who had delivered the claims pack to sign the claimants name to the newly completed claims form and when he refused to sign the documents the supervisor stated to him that she would sign them herself or photocopy the claimants signature from the original form. At no time did the defendant show any consideration for the legality of her intentions or her instructions to the person delivering the documents and she made no attempt to contact either of the claimants and to date 12th February 2011. The defendant has refused to allow either claimant any sight of these documents.
8. The defendant passed all of the accompanying personal documents including medical records to the driver in a loose bundle with instructions that he should inform the claimants that they were not needed.
9. The defendant did on the 14th November 2010 falsely accuse the claimants of failing to supply documents; driving licenses, tax records, tax credit files, disability awards and assessments records, tenancy agreement needed by them in relation to their legitimate claims for council tax and housing benefit, those documents being the same as the documents that the defendant returned to the claimants as not needed on the 11th November 2010.
10. The defendant did on the 04th December 2010. falsely or inaccurately calculate how much council tax and housing benefit the claimants were entitled to receive and they then backdated each and every one of these decisions which had the effect of creating a substantial debt upon the claimants in favour of the defendant.
11. The defendant did and continues to hold the claimants liable for the alleged overpayment of council tax benefit amounting to; ( 776.43 ) and the alleged overpayment of Housing benefit amounting to almost; ( 2,500 ) on each of the above decisions regardless of the many changes they made to the amount of benefits awarded to the claimants and they do continue to deduct payments directly from the claimants benefit awards against their wishes on a monthly basis.
12. The claimants appeals to the defendant in regard to their applications and also in regard to the way in which the defendant had conducted their reviews was dismissed out of hand by the defendant most of the issues raised by the claimant were ignored and the appeals regarding the benefit awards were dismissed with no further investigation or care for accuracy. Further rights to appeal were denied. *R. v Canterbury City Council ex parte Springimage (JPL 1993). A decision is void if it is based on information put before a committee that is not correct or is incomplete.
13. The defendant has repeatedly miscalculated the amount of council tax and housing benefits that the claimants should have been entitled to receive from November 2003 until the present day. Neither of the claimants became aware of these other flawed calculations by the defendant until January 2011 following advice from the East Sussex County Council online benefit advisory service*. In 2006 the defendant abandoned a claim for an alleged debt of over £1,600 in council tax arrears after accepting that the debt had been allocated to the wrong tenant. Also in 2006 the defendant waived a claim against the claimant for over £360 for council tax arrears that they accepted had been allocated to the wrong tenant. In 2007 the claimants landlords issued a possession order against the claimant for rent arrears of £780 because their housing benefit payments had been allocated to a different household. Since 2003 there have been several other demands for payments/overpayments by the defendant towards the claimant.
*East Sussex County Council stated that their calculator only provides estimates final figures are not guaranteed. Hastings Borough Council stated that they have discretionary powers to decide on benefit enhancements, discounts given to customers
14. The defendant has at no time required the claimants to re submit a fresh application on a new council tax and housing benefit form, the defendant declared the original form submitted by the claimants was no longer valid and the subsequent replacement was filled in by a third party without the claimants consent and signed by the defendant without the claimants consent so it is our claim that the defendant has based there calculations on no valid application at all or have acted beyond their given powers so any decision they have made is also invalid. Hazell v Hammersmith & Fulham London Borough Council [1992] 2 AC 1 at p 36, Lord Templeman said:
"The object of a doctrine of ultra vires is the protection of the public,"
at p 37 he emphasised that:
"A local authority owes a duty to its ratepayers to preserve ratepayers funds and to arrange for proper administration."
*R. v Canterbury City Council ex parte Springimage (JPL 1993). A decision is void if it is based on information put before a committee that is not correct or is incomplete.
15. The claimants have sought help from the Housing Ombudsmans offices and so has their Member of Parliament Amber Rudd MP but has so far had no replies and because on an earlier occasion it was the Ombudsman decision that the defendant had deprived the claimants access to any complaints procedures and that they had also refused to respond to his enquiries we feel justified in placing our hopes in the court rather than in those processes. The claimant has also requested assistance from the Bar Pro Bono Unit and is waiting for their decision.
16. In January 2011 the claimants contacted East Sussex County Council via their internet site facility and they did advise the claimants that they were likely to have been entitled to full council tax and housing benefits for the entire period of their tenancy. East Sussex County Council stated that their calculator only provides estimates final figures are not guaranteed. Hastings Borough Council stated that they have "discretionary powers" to decide on benefit enhancements, discounts given to customers
17. Restrictions and distresses inflicted upon the claimants were,are caused by the defendants procedural improprieties and,or breaches of statutory duty under the Disability discrimination Act (DED). Published by East Sussex County Council: Local Authority Duty;From December 2006 the Disability Discrimination Act will be amended to place a duty on all public bodies to promote disability equality. This is similar to the duty to promote race equality under the Race Relations Act. The Act sets out a General Duty to:
· Promote equality of opportunity for disabled people;
· Eliminate unlawful discrimination;
· Eliminate disability-related harassment;
· Promote positive attitudes towards disabled people;
· Encourage disabled people's participation in public life;
· Take steps to take into account people's disabilities, even where that involves more favourable treatment.
The duty requires public authorities to adopt a proactive approach, mainstreaming disability equality into all decisions.
a.) The defendant was reckless in their decisions when they failed to assist claimant 1 as a disabled person even though they were aware of his status and claimant 2 as a carer and when they did create or allowed to continue a situation where both claimants were compelled to live in a home that was unfit for use and,or a serious health hazard because of bacteriological mould growths and other hazards.
b.) When the defendant failed to remove or adapt or make changes to the parts of the property, or access to the entire property or to instruct or advise the claimants landlord of his obligations to the tenant under the terms and conditions of his tenancy contract or under U.K Housing law, or the DED, while being aware that such failures would place both claimants and their children in an environment of constant danger.
c.) The defendant was biased when they failed or refused to apply the same discounts and benefits to both or either claimant that they would apply to any other applicant who was,is disabled.
d.) The defendant was reckless when they failed or refused to offer guidance or sound advice or, access to any other support agency that could.
e.) The defendant acted unfairly when they repeatedly failed or refused to respond to enquiries, requests for information from the claimants, or gave information that was incorrect.
f.) The defendant was biased when they failed to offer advice guidance or in some parts access to the complaints and, or appeals service in regard to the claimants applications, or gave information that was incomplete or incorrect.
18. Particulars of Negligence and,or Breach of Statutory Duty.
The defendant did fail in their Duty as a Local Authority and Public Functioning Body.
i.) The provision of information;
ii.)The assessment of need for social care services;
iii.)The provision of support to people who meet local eligibility criteria.
a.) Please refer to each and every claim.
19. The defendant also caused a Breach of the Data Protection Act
a.) The defendant acted without regard for the law or the claimants when they disclosed the claimants personal files and medical records to a third party without the claimants consent and when they failed to ask him for proof of identification.
b.) The defendants acted illegally when they ordered a third party to read those files and take information from them to insert onto a form issued to the third party without the claimants knowledge or consent.
c.)When they failed to provide copies of data held on their systems relating to the claimants about the claimants within the statutory 40 day time period set out by the Act. sect 6th Principle. Information Act 2000.
We hold a receipt from the defendant for data request 11th November 2010.
20. The defendant did act in a way that was an offence under the Theft Act 1968 (c 60), s 17
Regina v Lancaster
[2010] EWCA Crim 370; [2010] WLR (D) 63 Where a person was charged with an offence of falsifying a document made or required for an accounting purpose, by omitting a material particular from that document, contrary to s 17 of the Theft Act 1968, the omitted particular was to be regarded as material if it had the effect that the document was liable to mislead in a way which was significant, or in a way which mattered.
a.) When they encouraged and,or accepted from a person an application form for council tax and housing benefits in the knowledge that some or all of that information would be false or inaccurate and, or submitted by a person who was acting without the knowledge or consent of either claimant and that by their actions the defendants were misrepresenting themselves as being agents acting for or on behalf of the applicants which was not true.
b.) The defendant did act with impropriety or mindless to the law* when they applied the claimants signatures to the same form and, or when they accepted the form as being a sound and reliable submission from the claimants upon which they could rely and use to accurately assess the claimants entitlements under law, while knowing it was not and, without the claimants knowledge or consent while knowing that the form contained errors and,or inaccuracies and in so doing they did obtain a pecuniary advantage causing the defendant to gain financially and the claimants to incur substantial financial losses.
*Illegality
Lord Diplock'"this ground means that the decision maker "must understand correctly the law that regulates his decision-making power and must give effect to it." The decision is taken by the wrong person (unlawful sub-delegation)
21. The defendant failed to administer the claimants applications in accordance with the local housing allowance rules. Please refer to each and every claim.
All of the above claims continue to cause both claimants severe distress and fear and it has also caused them to fall into substantial debt and placed their tenancy and in regard to council tax prosecutions their liberty at risk.
The Equality Act 2010
Article 1. Protection of Property.
a.) The defendant has deprived the claimants of the right to peacefully enjoy their home by restricting or taking amounts of monies from their possessions; welfare grants,benefit payments that they were entitled to receive, or not liable to pay. *R (Bernard) v Enfield London Borough Council [2003] where the court held that the Borough Council had a duty to provide assistance to a disabled woman so that she could maintain basic physical and psychological integrity.
b.) The defendants decisions and lack of respect towards the claimants and, or their home has had the effect of depriving them of their property in so much as they are deprived of access, privacy, comfort and normal day to facilities in the home. Bathroom, toilet, bedroom.*R (Bernard) v Enfield London Borough Council [2003] where the court held that the Borough Council had a duty to provide assistance to a disabled woman so that she could maintain basic physical and psychological integrity.
Article 2. Right to Education
a.) The defendants repeated manipulations of the claimants benefit entitlements and the lack of support from the defendant in regard to the state and accessibility to the claimants home has had a very serious adverse effect upon the claimants children`s education. Both children have always been home educated and the disruptions and intrusions and restricted access to the property which should have been avoidable have caused great stress and have been harmful to teaching and learning.
22. Article 8.
In regard to all of our applications
a.) The defendants have by their actions and decisions deprived both claimants of their rights to liberty In so much as both claimants are denied the right to decide how they will live because of the unnecessary inaccessibility of their home.
c.) By the disclosure of personal and confidential information about them the defendant has caused the claimants severe embarrassment by the disclosures of their confidential correspondence to a third party.
d.) The claimants relationship with each other and with their children has been severely adversely effected by the defendants failures which have caused a feeling of shame for the home in which they live because of the lack of repairs, and or adaptations to which they are entitled and because of Claimant 1`s inability to live properly or interact with his children or his wife, in a way that would be possible if he had the correct access to his home and garden.
e.) The claimants have been deprived of their right to enjoy their home because of the health hazards; damp and the mould growths and because of the lack of access and the lack of support from the defendant and they have also been deprived of the right to occupation of 90% of their property.
f.) The defendant has failed in their duty to provide an assistance to a disabled person, claimant 1. That would help him to maintain basic physical and psychological integrity *R (Bernard) v Enfield London Borough Council [2003] where the court held that the Borough Council had a duty to provide assistance to a disabled woman so that she could maintain basic physical and psychological integrity.
23.
*R. v Canterbury City Council ex parte Springimage (JPL 1993). A decision is void if it is based on information put before a committee that is not correct or is incomplete.
The Freedom of Information Act 2000
Human Rights Act article 6.
When they failed to provide copies of data held on their systems relating to the claimants about the claimants within the statutory 40 day time period set out by the Act.
Sections 55A and 55B of the DPA (introduced by the Criminal Justice and Immigration Act 2008) came into force in April 2010 and provides that a monetary penalty may be levied where a data controller has seriously breached the Data Protection principles and the breach was of a kind likely to cause "substantial damage or substantial distress". Furthermore, the breach must either have been deliberate or the data controller should have known that there was a risk of breaching the DPA and did not take "reasonable steps" to prevent it.
The ICO states very clearly that the fine levied on Hertfordshire CC will be a "precedent by which future notices will be judged".
The claimant has submitted a complaint relating to the mishandling of confidential information to the Information Commissioners Office (20th February 2011) who have advised the claimants that it is acceptable to also include the same complaints in their applications to the court because the ICO cannot make judgements on benefit decisions and will only consider action for the release of data and the withholding of data.
