England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE OWEN)

		Royal Courts of Justice The Strand London
		Monday 29 April 2002

Monday 29 April 2002

1. LORD JUSTICE BUXTON:This is a renewed application for permission to apply for judicial review of a decision of the City of Westminster Housing Benefit Review Board. That decision was taken in March 2000, but not notified in detailed terms to the applicant, Mr Sier, and those advising him until September 2000, a matter to which I shall have to return at the end of this judgment.
2. The application for permission was originally refused on paper by Newman J, and refused again by Owen J after an inter partes hearing at which Mr Sier was represented by counsel on 5 November 2001.
3. The matter has a very detailed history which I do not intend to set out at any length in this judgment because it is well-known to both Mr Sier and to the City of Westminster Council, who are the only parties who are likely to be concerned about this matter. Putting it very shortly, between 1992 and 1995 Mr Sier, the applicant, claimed housing benefit in respect of two properties, one in Cambridge and the other in Westminster. On that being discovered, both sets of benefit were discontinued. So far as the present proceedings are concerned, Westminster decided that the benefit received by Mr Sier had been a recoverable overpayment. It so decided on the basis of the test set out in Regulation 7 of the Housing Benefit Regulations 1987, section 7(b) of which reads:

"7(1) The following persons shall be treated as if they were not liable to make payments in respect of a dwelling --

....

(b) a person whose liability to make payments in respect of the dwelling appears to the appropriate authority to have been created to take advantage of the housing benefit scheme."

4. The Housing Benefit Review Board found that that requirement had been fulfilled in this case. They held that the dominant purpose for which the applicant had entered into the tenancy of his Westminster property, 26C Lupus Street, had been to obtain benefit from the scheme.
5. The tenancy as originally entered into in 1992 was expressed to be between Mr Sier, said to be of 26C Lupus Street, London SW1, and a company called the Iliffe Corporation UK Limited, whose address was given on the tenancy agreement as 18 Wort's Causeway, Cambridge. On 2 August 1992, following that agreement, Mr Sier submitted his first housing benefit form to Westminster. The Iliffe Corporation was in fact a company used as a vehicle by a Mr Wilkes, who was a close friend of Mr Sier. Mr Wilkes had permitted Mr Sier to live in a flat at 32 Lupus Street a long time prior to Mr Sier moving into 26 Lupus Street. Mr Sier was a director of the Iliffe Corporation, the registered office of which was 26 Lupus Street. The address given in Cambridge was not an office of the Iliffe Corporation, but the home of Mr Sier's mother. Mr Sier explained that the reason why the Iliffe Corporation had been shown as resident at his mother's address was that from time to time he used that as an address to take in building supplies. The Housing Review Board did not accept that explanation which they thought to be untrue. They considered that the Cambridge address had been used so that no connection would be identified between the landlord, Iliffe Corporation, and the address at which Mr Sier was ostensibly taking a residential tenancy from them. He was asked other questions, including whether he had other property. He did not reveal that he was then currently claiming housing benefit on another address in Cambridge. Mr Sier said that he believed at that time he was entitled to claim housing benefit on two properties concurrently. The Housing Review Board, having heard his evidence on that point, did not believe him.
6. Having received the application for housing benefit, inquiries were made by officers in Westminster in connection with this tenancy. As the Housing Review Board found in paragraph 24 of the determination, on 17 August 1992 they attempted to contact the Iliffe Corporation at the address in Cambridge. They spoke to someone on the telephone whom they could not identify, who told them that a Mr Gibbs-Sier (as they understood it a representative of the landlord) would telephone back.
7. Mr Sier has explained that it had been his practice to call himself by the name Gibbs-Sier out of deference to his mother's family, who had strongly supported him through a most unfortunate and disturbing illness that he had suffered in the early 1980s. There is no reason to doubt that, but when Westminster spoke to Mr Sier and asked him about the Iliffe Corporation, he told them that Mr Gibbs-Sier was his cousin and that it was he, Mr Gibbs-Sier (a different person from the gentleman claiming housing benefit) who was a director of Iliffe. The Board concluded that Mr Sier sought thereby to distance himself from the Iliffe Corporation because his connection with it would immediately have caused inquiries to be made as to the genuineness of the arrangement into which he had entered. In an interview note dated September 1992 he is recorded as saying that he had no connection with Iliffe.
8. That matter goes further. In March 1993 Mr Sier wrote to Westminster City Council in connection with his finances. He wrote to a Mrs Leach in the Housing Benefits Division, a letter signed James Gibbs-Sier. It states:

"Dear Madam,

Mr Stephen Sier

The above named has asked that I confirm to you the following...."

9. Various financial details are then set out in respect of Mr Stephen Sier, the tenant of 26C Lupus Street.
10. Mr Sier told us this afternoon that that letter was properly written so that Westminster City Council should be in no doubt as to his financial position. But what cannot be explained is why the letter purports to be written by someone other than Mr Stephen Sier, that is to say Mr James Gibbs-Sier, and clearly leaves Westminster to think that they are two different people. The only reason for that deception, as far as I can see and as far as the Board saw, was that in their initial inquiries, as I have already set out, Westminster had been told that the landlord of the property (the person connected with Iliffe) was Mr Gibbs-Sier. It would clearly have been very difficult for Mr Sier if it had come to Westminster's attention that he, the tenant, was that same person.
11. Further untruths were told by Mr Sier. The Housing Review Board found that this had been done in order to conceal the fact that he was claiming housing benefit on two properties. Mr Sier argued before the Board, before the judge and before us that he met, and properly met, the requirements for housing benefit (leaving aside the point about the two claims). First, it was indeed intended to provide a roof over his head; and secondly, he had no income and therefore fulfilled the financial requirements of a housing benefit payment. He points to various authorities where the courts have said that, provided those factors are fulfilled, the authorities should not inquire further into the genuineness of the contract.
12. However, that is not this case. This case is one where the arrangement was entered into between Mr Sier and Iliffe, a company of which he was a director (a fact which he concealed) and, moreover, a company in which Mr Wilkes, his very close friend, had an interest. In those circumstances the Board said this at paragraph 38 of their decision:

"In normal circumstances these intentions on the part of both men would have been perfectly legitimate in demonstrating the dominant purpose of the agreement in July 1992. However, the Board finds that this was not the dominant purpose. It takes this view because of the many findings set out above that continual and repeated deceptions took place at the time of the agreement and thereafter for several years. These deceptions (names, addresses, relationship with the company etc) as found (with several admitted by the claimant) were perpetrated in order to mislead council officers. All the deceptions appear to have had one primary objective and that is to conceal the fact that Mr Sier occupied two properties at the relevant time. As we have held above, if Mr Sier had been honest about such matters he would not have been entitled to benefit in respect of 26 Lupus Street. The officers would have investigated and scrutinised the matter more closely and their attention would inevitably have turned to the property in Cambridge.

39. In the Board's view, the dominant purpose of the agreement was to maximise the income received to the company by way of housing benefit. It was Mr Sier's and Rupert Wilkes' intention that the company should eventually create a job for Mr Sier. The housing benefit received by the company from Westminster City Council, in the Board's view, provided an income for Mr Sier and to assist in the renovation of subsequently acquired properties."

13. Mr Sier criticises that finding. He says that there is no reason to think that the dominant purpose of the agreement was to maximise income received by the company. In my judgement, it was entirely open to the Board to reach that conclusion. It found that there had been a sustained attempt to conceal from Westminster that Mr Sier was also renting a property in Cambridge.
14. Granted that he was already doing the latter, any arrangement that he entered into in Westminster in respect of Lupus Street needed the closest scrutiny. Vigorous attempts were made, as we have set out, to prevent that happening. The conclusion that in those circumstances these arrangements were partially for the benefit of the Iliffe Corporation and not genuinely in pursuit of Mr Sier's interests and therefore genuinely to lead to payment of housing benefit, was wholly open to the Housing Review Board. They did not simply penalize Mr Sier for telling lies, which he undoubtedly did, but, on the basis of that deception, they found that the tenancy arrangements at Lupus Street were not genuine, were known by those who entered into them not to be genuine, and were therefore concealed for those reasons. There is no criticism to be made, in my judgement, of the decision of the Board, which was inevitable.
15. Mr Sier also complains of the delay in the furnishing of the decision to him. It should be pointed out that the actual decision was notified to him very shortly after it was made. The reasoned decision, which goes into the matter in enormous detail and with great care, only followed some months later. The process, however, has been explained by Westminster. The judge was satisfied that there was no reason to think that the delay had caused any misunderstanding or failure of appreciation on the Board's part. That being so, there can be no ground for granting judicial review on the basis of delay.
16. I therefore would not grant permission to apply for judicial review in this matter. I am of the same mind as Owen J and Newman J.
17. MR JUSTICE JACKSON: I agree with the judgment which has just been given and with the reasons stated by my Lord for his decision. If this matter were remitted to the Housing Benefit Review Board, I do not see how the Board could reach any decision other than that the overpayment of £23,357.14 was recoverable. Accordingly the quashing order which is sought would serve no useful purpose.
ORDER: Application refused.