Housing benefit – Housing Benefit (Habitual Residence) Amendment Regulations 2014 – F tT had jurisdiction to consider vires
The claimant, an unemployed Slovakian national, had been receiving housing benefit on the basis that he was an EEA jobseeker until his entitlement ceased following the introduction of the Housing Benefit (Habitual Residence) Amendment Regulations 2014, which decoupled the link between housing benefit and jobseeker’s allowance (JSA) for EEA jobseekers. The claimant challenged the vires of the 2014 Regulations, arguing that they were invalid because the Secretary of State had failed in his statutory responsibility under section 172 of the Social Security Administration Act 1992 to refer them to the Social Security Advisory Committee (SSAC) before their introduction, and that the statutory exception, that it was inexpedient to do so by reason of urgency, did not apply because any urgency arose from the Secretary of State’s own delay. The First-tier Tribunal (F-tT) refused the appeal, holding that it lacked jurisdiction to consider the vires of the 2014 Regulations and the claimant appealed to the Upper Tribunal. It was argued on the Secretary of State’s behalf that there had been insufficient time to consult given the perceived urgency of introducing the changes with effect from 1 April 2014, when Bulgarian and Romanian nationals became entitled to claim JSA.
Held, setting aside the decision of the F-tT only to re-make it to the same effect, that:
the F-tT had jurisdiction to determine whether the 2014 Regulations were validly made and if satisfied that they were not to have treated them as if they had not been made in deciding the appellant’s appeal: Chief Adjudication Officer v Foster  AC 754, reported as R(IS) 22/93; Howker v Secretary of State for Work and Pensions  EWCA Civ 1623;  ICR 405, also reported as R(IB) 3/03, and EN (Serbia) v Secretary of State for the Home Department  EWCA Civ 630 (paragraph 5);
the point in time when an obligation to refer to the SSAC under the 1992 Act would have arisen, absent any urgency, was when the Secretary of State proposed to make regulations under any of the relevant enactments. It was the proposals, whether in the form of draft regulations or otherwise, that were to be referred. The 2014 Regulations were lawfully made and the circumstances were consistent with the relevant policy decision having been taken late in the day (paragraphs 34 to 35);
the panel expressed doubts about whether R v Secretary of State for Social Security, ex p Association of Metropolitan Authorities  HLR 131 remained good authority on the Secretary of State’s failure to consult in the circumstances of a purported urgency (paragraphs 45, 47, 49 and 50);
the panel was unable to conclude that the policy decision to prevent EEA nationals becoming entitled to housing benefit was outwith the range of reasonable decisions open to the Secretary of State to make at the point in time he did so, and it followed from that that the challenge to his decision as to the appearance of urgency also failed (paragraphs 52 to 53).