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Desmond's main area of practice is welfare benefits. He provides representation before the Upper Tribunal (Administrative Appeals Chamber) and the higher courts, including judicial review proceedings, where this is the appropriate remedy.

Desmond also accepts instructions defending possession claims for rent arrears as well as homelessness appeals, particularly where there are underlying benefit issues or questions on eligibility due to the client's immigration status.

Desmond currently writes regularly for the Social Welfare Updates blog.

Welfare Benefits Law

Overview

Desmond has an in-depth knowledge of social security law and is instructed in appeals to the Upper Tribunal and the higher courts, as well as in public law challenges against the DWP by way of judicial review in the High Court.

Notable Cases

Court of Justice finds that self-employed women have maternity rights
C-544/18 HMRC v Dakneviciute, held that self-employed EEA nationals are entitled to a right of residence and entitled to welfare benefits (such as child benefit, tax credits, homelessness assistance, social housing and other related benefits) during their maternity leave.

Court of Appeal clarifies the approach to be taken when restricting the amount of housing benefit payable to claimants renting rooms in a women's refuge
Birmingham City Council v SS and SA (Roshni intervening) [2016] EWCA Civ 1211) [2017] AACR 8
The two claimants (SS and SA) were victims of domestic violence, residing at a women's refuge provided by a small charity, Roshni, who had to raise the rent it was charging, following the loss of public funding which had previously been used to subsidise the rent. Birmingham City Council decided to reduce the eligible rent on the basis that the rent being charged was "unreasonably high" by comparison with the rent charged by other women's refuges in the local area. The Upper Tribunal set the reduction aside. The Court of Appeal allowed the local authority's appeal and remitted the case back to the Upper Tribunal.

Court of Appeal rules that a Zambrano carer was entitled to income support prior to the amendments of the habitual residence test on 8 November 2012
Sanneh v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49, [2016] QB 455
A Zambrano carer has a positive right to reside as soon as the conditions in C-34/09 Zambrano v Office national de l'emploi are satisfied. Consequently, Ms Sanneh had been entitled to claim income support in June 2011 as this was prior to the amendments to the habitual residence test made on 8 November 2012.

Upper Tribunal extends the scope of the pregnancy right to reside under Saint Prix
Secretary of State for Work and Pensions & Ors v SFF & Ors [2015] UKUT 502 (AAC) [2016] AACR 16
The decision involved three linked appeals for claims for income support, housing benefit and council tax benefit by EU female citizens who were not on maternity leave pursuant to a contract with an existing employer. The decision established that female EU citizens may expect to retain 'worker' status for a period of up to 52 weeks when off work, rather than the 26 weeks contended for by the Secretary of State. During this period, they are able to access welfare benefits with a right of residence condition.

Housing benefit rules discriminated against disabled claimants in breach of article 14 of the ECHR under the Thlimmenos principle
Burnip and Ors v Birmingham City Council & Anor [2012] EWCA Civ 629
[2013] AACR 7
Two of the applicants had severe disabilities and were assessed as needing overnight carers to stay in a separate bedroom in their flats. The two daughters of the applicant in the third case had severe disabilities, making it inappropriate for them to share a bedroom. The Court of Appeal held that the statutory criteria for calculating housing benefit for tenants in the private rented sector based on an entitlement to a one-bedroom rate discriminated against the severely disabled, and there was no justification, in the applicants' case, for continuation of the single bedroom rule.

Tribunal has jurisdiction to consider whether habitual residence established from date after the decision under appeal under the advanced awards provisions
Secretary of State for Work and Pensions v Bhakta [2006] EWCA Civ 65 (reported as R(IS) 7/06)
A tribunal has the power to consider whether a claimant has become habitually resident within three months of the date of claim, using the advance award rules. The Court held that these rules may apply to cases in which a claimant has a settled intention to reside in the UK, and where the only issue is as to the length of period of actual residence necessary to establish habitual residence.

NB: The effect of the decision was subsequently reversed by legislation.

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Administrative and Public Law

Overview

Desmond accepts instructions in welfare benefits cases against the DWP, HMRC or local authorities by way of judicial review in the High Court where there is no right of right of appeal, or the statutory appeal route is not a suitable or effective remedy - e.g. because the clamant is at risk of losing their home.

Notable Cases

Supreme Court rules that DWP does not have the power to recover a debt by deductions from benefit after the making of debt relief order
Secretary of State for Work and Pensions v Payne and another [2011] UKSC 60, [2012] 2 AC 1
Successful 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. The Court ruled that the recovery of social fund loans and benefit overpayments by deduction from benefits was a "remedy in respect of the debt" within the meaning of the Insolvency Act 1986 s.251G(2), so that the secretary of state was precluded from making such deductions during the one-year "moratorium" period after the making of a debt relief order.

Whether the application of the notional capital rules were disproportionate under Article 8 ECHR
R (Hook) v Secretary of State for Work and Pensions [2007] EWHC 1705 (Admin) (R(IS) 7/07)
The claimant applied to the Administrative Court for judicial review of the Commissioner's refusal of leave. The claimant was severely disabled and in need of substantial care. Ms H came to live with him as his partner and carer. His awards of IS and HB were terminated on the ground that his partner had deprived herself of substantial capital before coming to live with him and that the capital fell to be treated as his notional capital, such that he was left with no IS or HB.

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Housing Law

Overview

Desmond undertakes housing work in the county court, defending possession proceedings where the rent arrears have been caused by delays in the payment of housing benefit or universal credit. He also undertakes homelessness appeals where there are underlying benefit issues, including cases where EEA nationals have been refused benefits or housing assistance based on the right to reside test.

Notable Cases

Supreme Court rules that a former secure tenant's right to apply to postpone the date of possession, and thus revive the secure tenancy, survived his death and passed to his estate
Austin v London Borough of Southwark [2010] UKSC 28, [2011] 1 AC 355
D had occupied a house under a secure tenancy. An order for possession was made against him in February 1987 after he fell into arrears with his rent. The order provided that it was not to be enforced so long as he paid the arrears. D failed to comply with the terms of the order, so it became enforceable. However, he remained in the premises, paying rent plus amounts towards the arrears, until his death in 2005. Mr Austin had moved in to the property in 2003 to care for D. In 2006, the local authority served a notice to quit on him and issued possession proceedings against him. The Court ruled the fact that the secure tenant had died did not deprive the court of its jurisdiction to exercise the power to postpone the date of possession under a possession order.

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Notable Cases & News

DWP to stop ‘cold-calling’ disabled people to make low benefit ‘offers’

The Claimant was represented by Desmond Rutledge of the Garden Court Chambers Welfare Benefits Law Team instructed by Sara Lomri of Public Law Project. The Claimant was also represented by Bijan Hoshi of Garden Court & PLP.

14 July 2021

Garden Court Immigration Team dedicate 10th Edition of Macdonald's Immigration Law & Practice to the life and legacy of Ian Macdonald QC

The General Editors, Stephanie Harrison QC, Ronan Toal & Sadat Sayeed, are leaders in the field & practice in the number one ranked Garden Court Immigration Team. David Neale is a legal researcher & former barrister

25 June 2021

High Court challenge to denial of benefit increases for nearly 2m people with disabilities

Desmond Rutledge of Garden Court Chambers instructed by William Ford of Osbornes Law.

29 April 2021

Housing Law Handbook: A Practical Guide (Law Society, 2nd edition)

Edited by Stephen Cottle. Contributors: Tim Baldwin, Adrian Berry, Tessa Buchanan, Sophie Caseley, Justine Compton, Sebastian Elgueta, Ed Fitzpatrick, Kevin Gannon, Adrian Marshall Williams, David Renton, Desmond Rutledge and Marina Sergides.

27 August 2020

Upper Tribunal rules that a British child living with her mother in the UK will not be entitled to Disability Living Allowance if her father is living and working in another EU State

Adrian Berry and Desmond Rutledge acted for the Claimant, instructed by William Ford of Osbornes Law. The claimant is considering an appeal to the Court of Appeal.

12 March 2020

New edition of 'Gypsy and Traveller Law' published by Legal Action Group

'Gypsy and Traveller Law' is edited by Marc Willers QC of Garden Court Chambers. Garden Court co-authors are Marc Willers QC, David Watkinson, Stephen Cottle, Desmond Rutledge, Owen Greenhall and Tessa Buchanan.

6 January 2020

HMRC defeated at European Court of Justice on rights for pregnant self-employed EU Citizens

Adrian Berry and Desmond Rutledge of Garden Court Chambers represented Ms Dakneviciute, instructed by the Welfare Rights Service of the City of Wolverhampton Council.

19 September 2019

Legal Action Group publish 'Adult Social Care Law' (second edition, LAG) with contributions from Tim Baldwin and Desmond Rutledge of Garden Court Chambers

Tim Baldwin and Desmond Rutledge of Garden Court contributed chapters on Inquests and welfare benefits to 'Adult Social Care Law' by Stephen Knafler QC of Landmark Chambers.

15 July 2019

Court of Appeal clarifies the approach to be taken when restricting the amount of housing benefit payable to claimants in a women’s refuge

Desmond Rutledge of Garden Court Chambers acted for the Intervener (Roshni).

7 December 2016

Garden Court and Stephanie Harrison QC shortlisted for Human Rights and Public Law awards

Garden Court has been shortlisted at the Chambers Bar Awards, whilst Stephanie and our Public Law Team are shortlisted at the Legal 500 Awards.

21 October 2016

Use it or lose it: How to secure public funding for social security cases

In the October edition of Legal Action, Desmond Rutledge of Garden Court Chambers and Tom Royston of Garden Court North explain there are no shortage of qualifying social security cases for legal aid.

14 October 2015

Female EU Citizens can retain ‘Worker’ status for pregnancy-related reasons for 52 weeks

The three claimants were represented by Adrian Berry and Desmond Rutledge of Garden Court Chambers.

21 September 2015

Court of Appeal rules on whether UK is required to make backdated income support payments to refugees

Adrian Berry and Desmond Rutledge were instructed by Hackney Community Law Centre for the appellant.

26 February 2015

Court of Appeal rules that Zambrano carers are not entitled to mainstream welfare benefits after 8 November 2012

Ms Sanneh was represented by Stephen Knafler QC, Desmond Rutledge and Ali Bandegani.

10 February 2015

Decision to abolish backdating of income support for refugees to be appealed

Court of Appeal to consider whether abolishing backdating of income support for refugees breaches international law

7 July 2014

Could the earnings threshold for benefits be in breach of EU law? Desmond Rutledge explains

Desmond Rutledge, in an interview with LexisNexis, analyses the government's new minimum earnings threshold for determining whether EEA nationals who claim out-of-work benefits as a jobseeker have acquired the status of a worker.

11 March 2014

Permission granted to a Zambrano carer in an income support appeal against the Upper Tribunal

Permission has been granted by the Court of Appeal to a Zambrano carer in an income support appeal against the Upper Tribunal. The woman was represented by Stephen Knafler QC and Desmond Rutledge.

19 December 2013

Court of Appeal grants permission to appeal in a welfare benefits case

The proceedings concerned a decision to remove Ms N's entitlement to Incapacity Benefit after she scored insufficient points under the Personal Capability Assessment (‘PCA’) test. Permission to Appeal was granted.

22 April 2013

Administrative Court considers whether interim relief should be provided to a Zambrano carer

Administrative Court considers whether interim relief should be provided to a Zambrano carer denied any access to mainstream social security benefits pending the outcome of her benefit appeal

10 April 2013

Court holds differential treatment of Romani Gypsies under the Housing Benefit scheme is objectively justified

Marc Willers and Desmond Rutledge appeared for the Claimants in R (Knowles & Anor) v Secretary Of State for Work and Pensions [2013] EWHC 19 (Admin).

18 January 2013

All related news

Social Welfare Updates

Universal credit policy on deductions for court fines unlawful as it did not contain exception for financial hardship

Blog by Desmond Rutledge of the Garden Court Chambers Welfare Benefits Law Team. R (Blundel & Ors) v Secretary of State for Work and Pensions [2021] EWHC 608 (Admin)

1 July 2021

Social Welfare Update: Person subject to immigration control cannot claim Carer’s Allowance as a family member of a British national who has not exercised freedom of movement rights

Blog post by Desmond Rutledge of the Garden Court Chambers Welfare Benefits Team. Secretary of State for Work and Pensions v AS (CA) [2021] UKUT 24 (AAC)

30 April 2021

Social Welfare Update: Denial of bereavement support payment to family of a deceased woman who had been unable to work and pay NI contributions due to severe disability breached ECHR

O'Donnell v Department For Communities [2020] NICA 36

26 February 2021

Social Welfare Update: Court of Appeal rules that the exclusion of EEA citizens with ‘Pre-settled Status’ from accessing Universal Credit is unlawful

R (Fratila & Tanase) v Secretary of State for Work and Pensions [2020] EWCA Civ 1741

26 February 2021

Social Welfare Update: Suspension of DLA after 28 days in hospital did not violate Article 14 ECHR, in case of an adult patient with severe learning disabilities

MOC (by MG) v SSWP (DLA) [2020] UKUT 134 (AAC)

26 February 2021

Social Welfare Update: Extension of Past Presence Test for DLA breaches disabled children’s Art 14 ECHR rights

Blog by Desmond Rutledge of the Garden Court Chambers Welfare Benefits Law Team on TS (by TS) v Secretary of State for Work and Pensions (DLA); EK (by MK) v Secretary of State for Work and Pensions (DLA) [2020] UKUT 284 (AAC)

23 December 2020

Social Welfare Update: Payments from discretionary trust did not disentitle claimant from income-related ESA

Blog by Desmond Rutledge of the Garden Court Chambers Welfare Benefits Law Team. SM v Secretary of State for Work and Pensions (ESA) [2020] UKUT 265 (AAC)

18 December 2020

Social Welfare Update: Right to backdate benefit where claimant can no longer claim Housing Benefit after moving house to a Universal Credit full-service area

Blog by Desmond Rutledge of the Garden Court Chambers Welfare Benefits Law Team. CP v Secretary of State for Work and Pensions (UC) [2020] UKUT 309 (AAC)

17 December 2020

Social Welfare Update: Court of Appeal rules that evidence of a person’s motives, intentions and expectations was not to be ignored when deciding the ‘genuine and sufficient link’ test for disability benefits

Kavanagh & Anor v The Secretary of State for Work and Pensions [2019] EWCA Civ 272, Sir Terence Etherton MR, McCombe, Haddon-Cave LJJ; 07 March 2019.

29 May 2019

Social Welfare Update: Revised benefit cap does not discriminate against lone parents with children below school age under arts 14 and 8 ECHR nor does it breach art 3(1) UNCRC

R (DA & Ors) v Secretary of State for Work and Pensions [2019] UKSC 21, Lady Hale PSC, Lord Reed DPSC, Lord Kerr JSC, Lord Wilson JSC, Lord Carnwath JSC, Lord Hughes JSC, Lord Hodge JSC, 15 May 2019

28 May 2019

Social Welfare Update: Someone who is appealing a decision to refuse an application to vary leave is classified as a person subject to immigration control under s.115(9)(d) of the Immigration and Asylum Act 1999 and therefore excluded from benefits

EE v City of Cardiff (HB) [2018] UKUT 418 (AAC), 11 December 2018, UTJ R Poynter

28 May 2019

Upper Tribunal confirms that making a claim for universal credit (UC) in itself will trigger a transfer to the UC universal credit system - even if the claimant later withdraws the UC claim

Her Majesty's Revenue and Customs v LD (TC): [2018] UKUT 306 (AAC), Judge Jacobs, 18 September 2018

16 October 2018

Zambrano carer entitled to Child Benefit and Child Tax Credit based on an Agreement between the EU and Morocco

Her Majesty's Revenue and Customs v HEH and Secretary of State for Work and Pensions (TC and CHB): [2018] UKUT 237 (AAC) Judge Ward, 17 July 2018

11 September 2018

'Windrush generation': Guidance issued to local authorities on the handling of Housing Benefit cases

On 4 May 2018 the DWP has issued an Urgent Bulletin to local authorities on how to deal with housing benefit claims from the ‘Windrush generation’.

22 June 2018

A child’s right to education and a parent's derivative right to reside is dependent on a common period of residence when the parent was a worker

In Bolton Metropolitan Borough Council v HY (HB): [2018] UKUT 103 (AAC), Judge Ward, 23 March 2018, the claimant, HY, a Dutch national, had moved to the UK in December 2012. 

22 June 2018

EU co-ordination rules do not provide for entitlement to child benefit in respect of a step child resident in another Member State

Her Majesty's Revenue and Customs v MB: [2018] UKUT 162 (AAC), Judge Jacobs, 8 May 2018

22 June 2018

Upper Tribunal considers what evidence is required to accompany an application for a national insurance number

OM v Her Majesty's Revenue and Customs (CHB) (Benefits for children - other) [2018] UKUT 50 (AAC)

26 March 2018

High Court rules 'blatantly discriminatory' amendments to PIP criteria unlawful

RF v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin) Mostyn J, 21 December 2017

5 March 2018

Self-employed EU citizens can retain that status under Article 7(3)(b) Directive 2004/38

Florea Gusa v Minister for Social Protection, Ireland, Attorney General, Case C‑442/16, J.L. da Cruz Vilaça, A. Tizzano, E. Levits, A. Borg Barthet and M. Berger, CJEU (Fifth Chamber), 20 December 2017

20 December 2017

UK required to pay Carer’s Allowance during dispute on whether another EEA state was responsible for paying that benefit

 Secretary of State for Work and Pensions v Fileccia [2017] EWCA Civ 1907: Sales, Lindblom and Asplin LJJ, 24 November 2017

24 November 2017

Zambrano carers: eligibility for welfare benefits and homelessness assistance

R (on the application of HC) v Secretary of State for Work and Pensions [2017] UKSC 73, Lady Hale and Lords Clarke, Wilson, Sumption and Carnwath, 15 November 2017

15 November 2017

Ombudsman rules on delay in council passing a housing benefit appeal to the Tribunal

The claimant applied for Housing Benefit. This was refused on the basis that her self-employment “was not effective” such that she did not have a right to reside for benefit purposes.

10 November 2017

Extension of the Worker Registration Scheme from 2009 to 2011 unlawful

Secretary of State for Work and Pensions v Gubeladze [2017] EWCA Civ 1751, Jackson, Lindblom, Peter Jackson LJJ, 07 November 2017

7 November 2017

Why all the fuss over Universal Credit?

The media reports highlight the human impact of the scheme and the politics, but one only has to recall the following basic information about Universal Credit to understand why it is running into trouble.

3 October 2017

Mistake of fact giving rise to unfairness

CF v Secretary of State for Work and Pensions (PIP): [2017] UKUT 356 (AAC), UT Judge Gray, 29 August 2017

3 October 2017

“Yet another sorry tale of HMRC institutional incompetence and inefficiency”

VO v Her Majesty's Revenue and Customs (TC): [2017] UKUT 343 (AAC), UT Judge Wikeley, 18 August 2017

2 October 2017

Upper tribunal rules DWP wrong to deny appeals over refused benefits

R(CJ) and SG v Secretary of State for Work and Pensions (ESA): [2017] UKUT 324. Claimants refused access to ESA due to missing time limit for MR win the right to appeal to the First-tier Tribunal (FTT).

8 September 2017

New definition of 'self-employed' for working tax credit

JF v Her Majesty's Revenue and Customs (TC): [2017] UKUT 334 (AAC) Importance of being realistic about small sole traders and their audit trails

8 September 2017

Citizens Advice and National Federation of ALMOs call on the Government to pause the roll-out of Universal Credit

In their report ‘Delivering Universal Credit’, Citizens Advice ask the Government to pause the roll-out of full service Universal Credit (UC) to enable time to fix the problems that have become evident in full service UC areas.

31 July 2017

The need for balance when assessing the claimant’s evidence

VS v Secretary of State for Work and Pensions (ESA): [2017] UKUT 274 (AAC) (Upper Tribunal Judge E. Jacobs) 30 June 2017

31 July 2017

Whether a room is a “bedroom" for the purposes of the bedroom tax

Secretary of State for Work and Pensions v The City of Glasgow Council & IB [2017] CSIH 35, 31 May 2017 The Court of Session in Scotland considers what factors should be taken into account in establishing whether a room is a bedroom for the purpose

3 July 2017

The “living in” test - whether a claimant who had been travelling abroad for 15 months is “living in” the Common Travel Area for three months prior to claiming JSA(IB)

TC v Secretary of State for Work and Pensions (JSA) (Residence and presence conditions - habitual residence) [2017] UKUT 222 (AAC), 24 May 2017 (Judge White) The Upper Tribunal decided that the requirement to have been 'living in” the Common Travel Ar

3 July 2017

All social welfare updates

Background

Before coming to the Bar, Desmond volunteered at Citizens Advice and the Free Representation Unit. He also worked as a caseworker in the Advice Sector (including Citizens Advice, LEAN and Welcare) as well as becoming the Social Security Caseworker at FRU. Desmond joined Garden Court Chambers in 2004 (after completing a 12-month pupillage). He was short-listed for Young Legal Aid Barrister of the Year in 2007 for his work in social security. Desmond has used his welfare rights background to take on test cases in the Upper Tribunal and the higher courts.

Publications

His published work includes: digest editor for the Journal of Social Security Law (Sweet & Maxwell) between 2000 and 2011, a co-author of Housing Benefit Update (Legal Action Magazine) since 2005. He has also been a contributor to the following books: Joint Council for the Welfare of Immigrants Handbook (2006); Macdonald's Immigration Law and Practice (Macdonald & Toal) 8th & 9th editions, Housing Law Handbook, (Law Society; Cottle ed, 2009,) and Children's Social Care Law (LAG Knafler; ed 2018).

Desmond is a regular contributor to the Garden Court Social Welfare Updates blog.

Training and Seminars

Desmond regularly speaks on welfare benefits issues. He has been a speaker at events organised by Child Poverty Action Group, Housing Law Practitioners Association, Legal Action Group, the Public Law Project, the National Association of Welfare Rights Advisers, the Immigration Law Practitioners Association and the AIRE Centre.

Education

  • LLB (Hons), University of Westminster

Professional Membership

  • Legal Action Group (LAG)
  • Child Poverty Action Group (CPAG)
  • Administrative Law Bar Association (ALBA)

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