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Desmond Rutledge

  • Call: 2001
Desmond Rutledge

“I would like to compliment Mr Desmond Rutledge for his diligence and clarity”

Holman J

Practice

Desmond’s main area of practice is welfare benefits but he has a particular interest in those cases which involve a cross-over with housing, immigration and community care law. In welfare benefits he provides:

  • written advice on applications for permission to appeal to the Upper Tribunal (Administrative Appeals Chamber) against decisions of a First-tier Tribunal;
  • representation at oral hearings before the Upper Tribunal (Administrative Appeals Chamber) where exceptional funding is available;
  • representation in the Court of Appeal in appeals against the Upper Tribunal; and
  • representation in proceedings for judicial review.

For further details of what legal aid remains available in welfare benefit cases see What legal aid is still available for work undertaken on welfare benefits post-LASPO?

Desmond has provided written opinions in complex family law proceedings, particularly those involving EU migrants. His written opinion in an immigration matter was described as “very helpful” in Yarce (adequate maintenance: benefits)Colombia [2012] UKUT 425 (IAC).

Background

Before coming to the Bar, Desmond worked as a welfare rights adviser at Citizens Advice, LEAN and Welcare. He became a volunteer at the Free Representation Unit in 1992 and was employed as the Social Security Caseworker in 1995/6. Desmond joined Garden Court Chambers in 2004 (after completing a 12 months pupillage). He was short-listed for Young Legal Aid Barrister of the Year in 2007 for his work in social security.

Notable Cases

EU Law

Secretary of State for Work and Pensions v JS (IS) [2013] UKUT 490 (AAC)) – (junior counsel) – on whether a Zambrano carer is entitled to income support. On 18 December 2013, Pitchford LJ granted permission to appeal to the Court of Appeal. Further details can be found on the Garden Court Chambers website.

HB v Secretary of State for Work and Pensions (IS) [2013] UKUT 443 (AAC) – (co-counsel) Income Support – on whether the abolition on 14.06.07 of reg 21ZB of the IS Regs (the rule backdating income support awarded to a refugee to the date his or her asylum application had been made) is contrary to EU law under article 28 of Directive 20044/83/EC or a breach of the appellant’s human rights. The claimant has applied for permission to appeal.

R (Sanneh) v Secretary for State for Work and Pensions & Anor [2013] EWHC 793 (Admin) (junior counsel) – Test case on whether a ‘Zambrano carer’ who has been denied access to mainstream welfare benefits should, as a matter of EU law, be provided with interim relief, pending the outcome of her substantive welfare benefit appeal.

[2009] UKUT 17 (AAC) ) – Income Support – right to reside test – Proportionality- claimant detained under Mental Health Act refused income support.

CIS/2358/2006 – Income support – Right to reside – Claimant working in UK for over three years – did not return to work after maternity leave – Proportionality and Article 18 of EC Treaty.

Human Rights

R (Knowles) v Secretary Of State for Work and Pensions [2013] EWHC 19 (Admin) (17 January 2013) – Concerned a human rights challenge on behalf of two Romani Gypsies who were faced with a significant shortfall the rent due to the way Housing Benefit (‘HB’) is calculated for rent on privately owed caravan sites. The Court held that any differential treatment of Romani Gypsies under the HB scheme is objectively justified.

Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629 (junior counsel) – Test case on whether a failure of the housing benefit rules to differentiate between the disabled and able-bodied amounted to a breach of article 14 of the ECHR under the Thlimmenos principle.

CP v Secretary of State for Work and Pensions [2011] UKUT 157 (AAC) – Whether compensation paid to a disabled claimant for death of mother when she was a child should be ignored as capital / whether failure to make special provision breached her human rights.

RM v Secretary of State for Work and Pensions (SF) [2010] UKUT 220 (AAC), [2011] AACR 8 (1 July 2010) – Human rights – funeral payment – whether statutory scheme discriminatory contrary to Article 14 of the Convention in the case of an orthodox Jewish funeral.

R (Hook) v Secretary of State for Work and Pensions [2007] EWHC 1705 (Admin) (R(IS) 7/07) (junior counsel) – whether the application of the notional capital rules were disproportionate under Article 8 ECHR.

CJSA/2663/2006 Jobseeker’s Allowance – Exemption for full-time students during summer vacation – whether discriminatory against lone parents – Article 14 and A1P1 ECHR.

Public Law

Secretary of State for Work and Pensions (Appellant) v Payne and another (Respondents) [2011] UKSC 60, [2012] 2 WLR 1, (junior counsel) – Test case on whether the Secretary of State has the power to recoup social fund loans and benefit overpayments by deduction from current benefit payments where those debts are listed on a debt relief order (‘DRO’).

R (S) v Social Security Commissioner and ors [2009] EWHC 2221 (Admin), [2010] PTSR 1785, (junior counsel) – Housing benefit – Claimant with mild learning disability living in supported housing – test for “exempt accommodation” -care provided by or on behalf of social landlord – Sch.3 para.4 HB/CTB (consequential provisions) Regulations 2006.

Welfare Benefits

PB v Secretary of State for Work and Pensions (SPC) [2014] UKUT 0069 (AAC) – State Pension Credit – Housing Costs – Whether capping of entitlement to help with mortgage interest at £100,000 in breach of artice 14 ECHR based on age.

SS v Birmingham City and Secretary of State (HB) [2013] UKUT 418 (AAC) – (junior counsel) Housing Benefit – Women’s Refuge – Exempt Accommodation – Whether rent charged by charity with no funding is unreasonably high by comparison with the rent charged by publically funded charities in respect of suitable alternative accommodation elsewhere.

Wirral Metropolitan Borough Council v Salisbury Independent Living Ltd [2012] EWCA Civ 84 (junior counse) – Whether a landlord has a right of appeal against a housing benefit decision as a “person affected” where it has lost contact with the tenant or the tenant has died.

Scott v Secretary of State for Work and Pensions [2011] EWCA Civ 103 (junior counsel) – on whether a Benedictine nun was excluded from any entitlement to state pension credit under the rule that she was a member of a religious order and was fully maintained by her order.

Sandhu v Secretary of State for Work and Pensions [2010] EWCA Civ 962 – Disability Living Allowance – Higher rate of the mobility component for a claimant who could only walk with the aid of crutches – see Memo DMG 47/10.

Secretary of State for Work and Pensions v Bhakta [2006] EWCA Civ 65 – Income Support – Habitual residence test and the use of the advanced awards provisions

Secretary of State for Work and Pensions v Doyle [2006] EWCA Civ 466 – Incapacity Benefit – Calculation of permitted earnings.

Housing

Austin v London Borough of Southwark [2010] UKSC 28, [2011] 1 AC 355 (junior counsel) on whether a former tenant’s right to apply to postpone the date for possession and thus revive a secure tenancy under section 85(2) of the Housing Act 1985 survives death and passes to the estate of the deceased former tenant.

Publications

Housing Law Handbook, (Cottle ed, 2009, 1st ed) contributor to chapter on housing benefit
Macdonald’s Immigration Law and Practice (Macdonald and Toal,ck 2010, 8th ed), contributor to section on welfare benefits.

Desmond is currently a contributor to the welfare benefits section of the Garden Court Social Welfare Law website

Desmond writes regularly on the Garden Court Chambers Blog. Some examples of recent blogs are listed below:

He is also a contributor to Free Movement. Some examples of recent blogs are listed below:

Articles

Housing Benefit Update published in the Legal Action Group magazine – co-author . Past updates can be found on the Legal Action Group website.

Housing benefit overpayments: Part one: -‘Official error’ – Adviser 133 p.11-14 May/Jun 2009

Housing benefit overpayments: Part two – the ‘reasonably realise’ test – Adviser 134 p.10-14 Jul/Aug 2009

Acquiring and retaining the status of a worker and the habitual residence test (2009) 16 Journal of Social Security Law – D96-D103

Backdating for good cause – Adviser 113 Jan/Feb 2006, 9

Living Together Appeals Revisited – recent case law on the cohabitation test – Adviser 81, Sept/Oct 2000

Desmond also makes regular contributions to Free Movement on welfare benefit issues and to the Social Welfare Law website

Training and Seminars

Desmond has provided training on a range of subjects within social welfare law and has been a guest speaker at the Housing Law Practitioners’ Association, the Social Security Law Practitioners’ Association, Legal Action and events organised by the Public Law Project and the National Association of Welfare Rights Advisers and CPAG.