Public Law, Other Civil and Social Security

Chandra has represented in public law cases in the High Court since 1998, mainly in connection with existing cases.  He has also conducted other civil cases including for Civil Actions against the Police, Housing, Bankruptcy, and the like.  Chandra has also, since his days with the Free Representation Unit, always represented in Social Security cases, though now it tends to be if there is a particular point of law, or for vulnerable groups such as those with disabilities, or asylum seekers.

Public Law Notable Cases

R v CPS ex parte R (a minor) [2013]
Judicial Review, Crime - CPS charged R, a minor with developmental difficulties, after the alleged victim's mother succeeded in persuading the CPS to review the previous decision not to charge.  Following a pre-action protocol letter for judicial review the CPS agreed to withdraw all charges (believed to be the first successful challenge to the victim's right to review).

R v United Kingdom Council for Nurses and Midwifery (now the Nursing and Midwifery Council) ex.parte CJ [2001]
(Public Law - Judicial Review) - A nurse was disciplined and a UKCC hearing invoked to consider whether to strip her of her UKCC registration (which would mean she couldn’t practice). She did not lose her registration but was cautioned for 5 years. It was argued on her behalf that this was an inconsistent (if not perverse) verdict and sentence on the evidence that had been heard. The Board held to their decision and were asked for reasons based on the common law reasons case R v Secretary of State for the Home Department, ex p. Doody [1993] UKHL 8, [1993] 1 AC 531, which request was refused.   The solicitors then decided to instruct another barrister who advised the case should be a case stated and not a judicial review as recommended by Chandra.   When presented, the High Court said it was a judicial review case but by then the case was outside the 3 month time limit.  Nonetheless judicial review proceedings were commenced by Chandra with an application for an extension of time.  By this time another case on the same point (common law duty to give reasons of UKCC) had reached the High Court and succeeded (Brabazon-Drenning v United Kingdom Central Council [2001] HRLR 6) and the UKCC agreed to quash by consent.

R v Immigration Appeal Tribunal ex.parte Uslu [1998] (CO/5130/98)
High Court agreed that "forthwith" in the Asylum Appeals (Procedure) Rules 1996 means "as soon as they had a reasonable opportunity" (following Bhimji v Chatwani [1991] 1 WLR 989) in the context of a decision to refuse leave to appeal purportedly made in time by the IAT but not sent out to the parties until six weeks after the time limit had expired.

R v LB Richmond ex parte W [1998]
Council tenants retained their 4 bedroom council house in Strawberry Hill where Local Authority sought to remove them as being too large despite every room being occupied.  An early example of attempted social cleansing by local authorities.

Social Security

Right of Bangladeshi citizen to widow’s benefit – foreign law is question of fact so not appealable in law
W had claimed widows benefit following the death of her husband (“H2”) who had worked in Britain for 19 years until his death paying NI contributions all the while. She had been married to H1 but he had divorced her by a “bare” talak in 1971.  In 1973 she married H2 with whom she had had two children though she had never come to Britain. The DSS refused widow’s benefit on the basis that the bare talak was not a valid divorce under Pakistani, East Pakistani or Bangladeshi law and so she had not the capacity to marry H2. At first instance W won on the basis of expert reports on Bangladeshi family law that the marriage was valid as notification procedures for a talak divorce could not be carried out as there was no infrastructure in Bangladesh permitting this due to the civil war. The DSS appealed as all three previous decisions of the Commissioners had not been followed. W won the appeal on the basis that foreign law was a question of fact and so there was no jurisdiction to hear the appeal and the learned Commissioner distinguished all three previous decisions of the Commissioners on the basis of the Claimant's representations as to what the applicable British Family Law was to foreign family law.

Social Security Commissioners (equivalent of High Court) - Deeming provision for incapacity credits/benefits reverses burden of proof against the Department.
Starred decision that established that any applicant for incapacity credits was entitled at the time they received the benefit notwithstanding a provision that said they were to be examined within 12 weeks as to the their eleigibility. Because they received the benefit that meant they were entitled at that stage and therefore the medical examination and any subsequent decision on the claim was a review of the decision by the DSS and subject to the law in that regard, including that the burden of proof reverted to the DSS of showing that the claimant was not entitled to benefit. Relied on subsequently in a similar decision in relation to incapacity benefit and resulted in new legislation.

W v DWP [2006]
DLA/Overpayment case won in Upper Tribunal after six years as DWP had failed to apply right test applying to person with disabiity.  On return to the First Tier Tribunal overturned overpayment case and gave DLA Moblity award backdated to 2006.  DWP then attempted to revise this decision causing another First Tier Tribunal which enforced the original award backdated to 2006.

Other notable cases

W v M and F [2012]
Civil Action (County Court)
W sued M and F for assault having previously brought an unsuccessful private prosecution.  M and F advised by Chandra to counterclaim for malicious prosecution. They successfully defended the assault case and won the malicious prosecution counterclaim for which they were both awarded damages and costs.

O & O [1997]
Criminal Injuries Compensation Board - Negligence Damages
Damages for Nervous Shock exacerbated by racial nature of an attack on brother of the claimant where assault not actually seen.


Extraordinary Misinformation and Extraordinary Rendition - Index on Censorship (January 2006)
Article on media reporting of extraordinary rendition and the response of the US and UK governments to the exposure of the practice (following two years of research for Reprieve (UK))

No comments: