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Housing Benefit Review Board of the London Borugh of Camden
2. So far as relevant to this case, Section 130 of the Social Security
Contributions and Benefits Act 1992 provides that a person will be entitled to
housing benefit if `he is liable to make payments in respect of a dwelling in
Great Britain which he occupies as his home', provided that he satisfies the
necessary financial criteria. Section 137 provides that regulations may be
made as to the circumstances in which a person is or is not `to be treated as
occupying a dwelling as his home.' Regulation 5 of the Housing Benefit
(General) Regulations 1987 (the regulations), made under section 137, provides
that a person shall be treated as occupying as a home the dwelling normally
occupied as his home - (a) by himself or if he is a member of a family, by
himself and his family and shall not be treated as occupying any other dwelling
as his home. Regulation 5(8) deals with entitlement to housing benefit during
temporary absences from home. The general rule is that a person will be
treated as occupying a dwelling as his home (and therefore entitled to benefit)
while temporarily absent for a period of 13 weeks subject to certain provisos.
Paragraphs 8B and 8C provide for several circumstances in which a person may be
entitled to benefit for a longer period of temporary absence.
3. Paragraph 8C provides that a person to whom 8B applies shall be treated as occupying the dwelling he normally occupies as a home during any period of absence not exceeding 52 weeks beginning from the first day of that absence. Paragraph 8B, which is the provision with which this case is concerned, provides, so far as relevant:
`This paragraph shall apply to a person who is temporarily absent from the dwelling he normally occupies as his home (absence) if:
(a) he intends to return to occupy the dwelling as his home; and
(b) while the part of the dwelling which is normally occupied by him has not
been let or as the case may be sublet: and
(c) he is
(ii) resident in a hospital or similar institution as a patient or
(iii) undergoing medical treatment or medically approved convalescence in accommodation other than residential accommodation; and
(d) the period of his absence is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely substantially to exceed that period'.
Regulation 9 provides that `residential accommodation' means accommodation provided by an establishment such as in a registered home.
4. The regulations provide a statutory scheme for the determination of applications for housing benefit. Applications are made to a local authority, who, by Regulation 76, must determine the claim by way of written determination. On the request of a claimant, the Council must review that determination (Regulation 79(2)). A claimant may then request a further review which must be considered by a Review Board comprising not less than 3 members if the Council or 2 if the parties consent (Regulation 81(3) and Schedule 7). Regulation 83 provides that the Chairman of the Review Board shall record in writing all its decisions and shall `include in the record of every decision a statement of the reasons for such decisions and of its findings on questions of fact material thereto.'
5. Regulation 86(1) provides a limited power to set aside decisions or determinations in specified circumstances. These include `if the interests of justice so require.' The scope of Regulation 86(1)(c) has been the subject of much judicial attention. It is unnecessary for the purposes of this judgement to cite the various decisions on the topic. Suffice to say that there were two schools of thought. On the one hand some said the provision should be construed narrowly so as to cover matters which were ejusdem generis with the provisions in (a) and (b). Others considered that the provision could be invoked in a wide variety of circumstances which would include any error of law. R v Housing Benefit Review Board of Camden LBC ex parte W unreported 26th November 1999, the controversy was resolved in favour of the narrow construction.
6. I turn now to the history of this case. The applicant is an elderly and disabled man aged about 77. From 1996 he rented a flat from Camden Council at 21 Edis Street, Chalk Farm. He lived there alone, being separated from his wife. He received income support and housing benefit. In September 1996 he fell and broke his leg. Soon afterwards he suffered a stroke. He was in hospital until January 1997. On discharge he went to live at the home of his son and estranged wife in their one bedroomed flat in Endsleigh Street WC1. That was because he needed a hospital bed and other equipment for which there was insufficient room in the flat at Edis Street. Edis Street was unsuitable in other respects. It was not on the ground floor; there was no lift and the staircase was narrow. The applicant had already asked to be re-housed. When I say the applicant, I ought to say that his family acted on his behalf due to his age and language difficulties. His son Ali was officially appointed as his representative.
7. When he went to Endsleigh Street in January 1997, the applicant continued to receive housing benefit for Edis Street. In the February, Ms Eade the Council's estate manager had a conversation with one of his daughters about whether the applicant was living at Edis Street and whether he was going to return the keys, meaning to give up his tenancy. I shall return to that conversation in greater detail later on. In March, the Council, who by now had discovered that the applicant was in Endsleigh Street, wrote to him there asking when and why he had left Edis Street and when, if ever, he intended to return. They received no reply. A notice to quit was served. In May 1997, the Council decided that the applicant had not been entitled to housing benefit for Edis Street from Friday 14th March as he had not replied to correspondence and it was believed that he was no longer living at the flat. They sought to recoup the benefit paid since Monday 17th March 1997. In June 1997 the applicant's family made a further claim for housing benefit. This claim was investigated and on 23rd September 1997, it was rejected on the ground that the applicant had been absent from home for more than 52 weeks. That decision was confirmed on review.
8. The applicant's son Ali, sought a further review of that decision by the Review Board. The hearing took place on 23rd February 1998. Some members of the family were present and gave evidence although they were unrepresented. The Review Board considered both the withdrawal of benefit from 14th March 1997 and the refusal to allow benefit under the new claim. They decided to allow benefit from 17th March until 30th September 1997 on the ground that the applicant had been temporarily absent from the flat from September 1996 undergoing medically approved care at his wife's home and had intended to return to his flat. They allowed benefit up to the 52 week limit. In March 1998, the applicant was re-housed and was awarded housing benefit for his new home. However, he had retained the tenancy of Edis Street until then and remained indebted to the Council for the rent on that flat from 30th September 1997 until he gave it up in March 1998.
9. The family was not entirely satisfied with the decision of the Board on 23rd February, as they had contended that the applicant had not been absent from the Edis Street flat for 52 weeks. Their argument was that he had been living there on and off for short periods since he came out of hospital and that he had not therefore been absent from home for 52 weeks. That had plainly been rejected. The Council were dissatisfied with the decision of 23rd February and sought to have it set aside under Regulation 86(1)(c) on the ground that it would be in the interests of justice so to do. They complained of the findings of fact, the reasoning and said there had been a misdirection of law. At that time the scope of Regulation 86(1)(c) had not been clarified and on 27th April 1998, the Review Board acceded to the Council's request and set their own decision of 23rd February aside.
10. The applicant's family then obtained representation. The rehearing of the applicant's request for a further review of the decision of 23rd September 1997 took place on 21st October 1998. The Board decided that the applicant had not been entitled to housing benefit for Edis Street since 17th February 1997. I will return to discuss the grounds of that decision in due course as it is the decision mainly under challenge in this application. Under that decision, the applicant was worse off than he had been under the Council's decision of 23rd September 1997 when he had been allowed benefit up to 17th March 1997.
11. The family was dissatisfied with the decision of 21st October 1998 and on 19th January 1999 they lodged a request that it be set aside under Regulation 86(1)(c). However, on 3rd February 1999 a Council official refused to pass the request to the Review Board, saying that there was no proper basis on which a further set aside could be entertained. On 22nd May 1999, the applicant was granted legal aid to apply for leave to move for judicial review of three decisions, of 27th April 1998, 21st October 1998 and 3rd February 1999. Tucker J refused leave to move on consideration of the papers, saying the application was out of time and the delay was such that leave should not be given. However, on a renewed oral application, of which the Respondent was not given notice, Sullivan J granted leave and the necessary extensions of time.
12. The applicant now accepts that in the light of the decision ex parte W, the refusal of the Council official to submit to the Board the applicant's request for a set aside, cannot be challenged. This application is concerned only with the decisions of 27th April and 23rd October 1998. It is now accepted by the respondent that, in the light of ex parte W, the Board's decision of 27th April 1998 to set aside its decision of 23rd February was unlawful because the grounds fell outside the narrow confines of `the interests of justice', as defined in ex parte W. However, the respondent does not accept that the decision of 27th April should be quashed. It contends that as both parties accepted at the time that there should be a rehearing and allowed matters to proceed to a substantive hearing on 21st October 1998, I should exercise my discretion against quashing the decision of 27th April 1998. Accordingly, the first issue for consideration is whether the decision of 21st October 1998 was lawful.
13. Mr Cox, counsel for the applicant submits that the Board's decision was wholly inadequate in that it failed to make findings of fact on crucial issues and failed to comply with its duty to give reasons, pursuant to Regulation 83. It is necessary therefore to consider the evidence before the Board, the submissions made to it and the written decision.
14. The Board had before it a file of papers comprising the Benefits Office investigation of the applicant's claim including reports of visits to Edis Street and Endsleigh Street, records of interviews with members of the applicant's family and letters written by them. During the investigation, the family had explained that the applicant had been in hospital until January 1997 and had stayed at Endsleigh Street since his discharge. Mrs Gough, one of the applicant's daughters said that because the applicant intended to return to Edis Street when well enough, the family had redecorated it. There was some confirmation of that as on 11th June 1997, Council officials had visited the flat, hoping to see the applicant. He was not there but the flat was being decorated. In an interview conducted in June 1997, Mrs Gough explained that the Edis Street flat was wholly unsuitable for the applicant's needs, on account of its size and access problems. She asked that he be re-housed. The arrangements at Endsleigh Street were very cramped. The family might have to move the applicant back to Edis Street even though there would be problems. In July 1997, Mrs Gough repeated this account. She stressed that it had always been the intention that the applicant would remain at Endsleigh Street only until he had recuperated sufficiently to manage without the special bed. He would then return to his own flat. Unfortunately this had taken longer than anticipated. Also, it had been hoped that by the time he was well enough to return, he would have been re-housed. Asked why the applicant had not been at the flat for the meeting on 11th June, she said it would have been `unwise to drag him there as he was bed bound'. The family had been advised by a social worker not to hand in the keys to Edis Street until the applicant had been re-housed. In August, the son Ali told council officials that his father had been at Edis Street since he came out of hospital except for one week in June 1997 when the flat was being decorated. That was untrue. In a letter written by a member of the family at the end of October 1997, it was said that he was `back at home' although with great difficulty. In the same letter it was said that he was visiting his flat regularly; it was his home and he was going to stay there permanently, when it could be made more comfortable. In December 1997, the applicant's former wife told council officials that the applicant was living partly at Endsleigh Street and partly at this own flat. The son Ali said that during the week his father was living at Edis Street where he, Ali looked after him. However, enquiries with neighbours in early 1998 suggested that the Edis Street flat had not been lived in for at least a year. Relatives came to collect the post. Officials who looked through the letter box had the impression that the flat was not habitable. A visit to Endsleigh Street in January 1998 found the applicant in bed there but the son Ali claimed that he took his father for visits to Edis Street and sometimes stayed the night. It will be seen that the family had not presented a consistent picture of where the applicant had lived since January 1997 although they had consistently said that it was his intention to return to Edis Street when fit to do so, unless he were previously rehoused.
15. The Board decided to hear the case afresh. They heard oral evidence
from Mrs Eade, the estate manager who said that in February 1997, that is only
a month after the applicant's discharge from hospital, she had talked to one of
the applicant's daughters (not Mrs Gough) who had told her that her father was
no longer living at the flat. I shall refer to that person as `the other
daughter'. They had discussed handing in the keys of Edis Street and how the
applicant could qualify for a two-bedroomed property. Mrs Eade said that the
family had not handed the keys back. Mrs Gough, who gave evidence, did not
accept that any such conversation had taken place about the keys and stressed
that the other daughter had had no authority to make any decision about handing
back the keys. She explained that a social worker had advised them not to
return the keys, as the flat was the applicant's home. Mrs Gough and Ali both
gave evidence that the applicant had been taken to visit his flat about 6 or 7
times. Occasionally they had stayed the night; other times the visits had
lasted a few hours. The family's contention was that the applicant had always
intended to return to live permanently at Edis Street when he was well enough.
Further he had returned to live there from time to time (the overnight stays)
and, (relying on the judgement of Simon Brown J as he then was, in R v
Penwith DC ex parte Burt CO/1075/89) the period of temporary absence
began running again following any such return, however short.
16. In reaching its decision, the Board recited the history of the applicant's admission to hospital and his stay at Endsleigh Street when discharged. They accepted the evidence of Mrs Eade as true. Soon after this conversation, the Housing Department had requested the return of the keys and a notice to quit had been served. However, the keys were not returned because a social worker had advised against it. They found as a fact that that as at 10th February 1997, the applicant did not have an intention to return to the flat at Edis Street. They then considered the law and held that Regulation 5(8B) applied. They set out the three tests which must be satisfied before benefit could be paid for the extended 52 week period. They held that at the time of Mrs Eade's conversation with the other daughter, the applicant did not have an intention to return to Edis Street. The decision not to return the keys had been taken on the advice of Social Services and not because the applicant had expressed an intention to return. Because by 10th February 1997, the applicant had no intention to return to Edis Street, he could not fulfil the requirement of regulation 5(8B)(a) and was not entitled to housing benefit from 17th February 1997. They added that because they had decided that as at 10th February 1997, he had no intention to return to the flat, there was there was no need to go on to consider whether there were breaks in the temporary absence thereafter.
17. On behalf of the applicant, Mr Cox accepted that unless he could attack the Review Board's conclusion about the applicant's intention to return, he could not challenge the decision. It was submitted that the findings of fact given by the Board were not adequate and did not comply with their duty under Regulation 83(4). The decision did not deal with the applicant's main contentions or the evidence relied on. Mrs Gough's evidence of the other daughter's lack of authority and the evidence of the applicant's intention to return when well enough were neither accepted nor rejected. The Board was wrong to leave the evidence of visits out of consideration. It was relevant to the issue of the applicant's intention as well as the issue of whether his period of absence had been broken. Consideration of all relevant evidence would have led the Board to a contrary conclusion on the vital issue of the Applicant's intention. Inferences have been drawn from Ms Eade's evidence which could not properly be drawn. The conclusion that in February 1997, the applicant did not intend to return was not adequately explained and did not follow logically from the evidence accepted. The conclusion rested on Ms Eade's evidence which had taken the applicant's team by surprise. They had had no prior notice of it. It contained a hearsay account of the other daughter, who was not called to give evidence.
18. Miss Richards for the respondent submitted that the decision was adequate and intelligible. The decision should be read as a whole. In R v Sefton MBC ex parte Cunningham (1993) 23 HLR 534, the court had said that the reasons need not be elaborate and need not be the sort of reasons one would expect in a High Court judgement. They should be sufficient to enable the parties to appreciate that relevant matters had been taken into consideration and to understand why they had succeeded or failed.
19. It seems to me that the reasons, although short, are perfectly intelligible. Mr Cox was bound to concede that the reasons were clear enough for him to know that there was no error of law. His only complaint was the adequacy of the findings of fact. It is true that the evidence given by the family about the applicant's intentions was not expressly rejected. Nor was the evidence that the `other daughter,' did not have authority to speak for her father. However, it seems to me that those two items of evidence must have been rejected. From the Review Board's acceptance of Ms Eade's evidence, one must infer that they accepted that the other daughter had said the applicant was no longer living at the flat. That they relied upon that at all must imply that they rejected Mrs Gough's evidence that the other daughter had spoken without authority. They drew the inference from the other daughter's words to Ms Eade that the applicant did not intend to return. It seems to me that that was a permissible inference; indeed it would be an obvious inference to draw unless there was other evidence to the contrary. Here there was some contrary evidence. The other daughter's words, as reported by Ms Eade, were inconsistent with the evidence of Mrs Gough that the applicant had always intended to return when well enough. That evidence must have been rejected. In the light of the inconsistencies revealed in the documentary evidence, this is understandable. It appears that the Board did not regard the evidence of the visits as being of any relevance to the issue of intention. The way in which the evidence is recorded and dealt with indicates that. There is no evidence that a submission was made to the Review Board that the visits were relevant to the issue of intention and I am not prepared without evidence to assume that that was done. Nor do I think that the evidence of visits was so obviously relevant to the issue of intention that the Board was bound to take it into account. It is true that the Board relied heavily on Ms Eade's evidence and I am concerned that her evidence was given without any prior notice. Nor was the other daughter called. However, I have not been told that there was any objection to this evidence or any request for an adjournment so that the other daughter might be brought to the hearing. It is now too late to complain of being taken by surprise.
20. I conclude therefore that the findings of fact are based on the evidence and the inferences drawn are permissible. In an ideal decision, the Review Board might have said that they rejected Mrs Gough's evidence and why. But the Board is not under a duty to deal with every item of evidence before it, explaining that which it accepts or rejects and why. It is under a duty to make findings of fact, founded in the evidence and to draw permissible inferences and conclusions. With those duties this Board has complied. In my judgement the decision of the Board on 21st October 1998 cannot be impugned.
21. What ought I now to do? Ought I to grant relief to the applicant by quashing the unlawful decision of 27th April 1998, which would have the effect of bringing down the later decision of 21st October which ought never to have been made but which was, as I have just held, quite lawful in itself. Miss Richards submitted that the applicant had acquiesced in the decision to set aside the 23rd February decision. He had not wanted it but he had not challenged it by judicial review, as he could have done. She accepted that that would not have been an obvious course to take, given the unsettled state of the law. The applicant's attitude was to move forward to a fresh hearing at he was represented and in which the family took full part. Having in effect `lost' that round, the applicant then sought a set aside. He was prepared to accept the wide interpretation of the power to set aside until a council officer refused to submit his set aside application to a Review Board in February 1999. Only then did the applicant seek to move for judicial review. Miss Richards submitted that it would not be in the interests of good administration if an applicant for housing benefit were able to go along one route, (set aside and rehearing) thereby engaging council resources until he had lost the issue on the merits and then change tack and seek judicial review claiming that the intervening procedure had been unlawful. She pointed out that the application for judicial review had been out of time in respect of all three decisions. The applicant has now only succeeded on the first in time. The application in June 1999 was lodged 14 months after the only decision on which he has succeeded. She accepted that once Sullivan J had granted an extension of time, as he did in respect of all three decisions, she could not argue that relief should be refused simply on the ground of delay but it was accepted on both sides that delay is a relevant factor in the exercise of discretion. She reminded me that the respondent had not had the opportunity to address Sullivan J before that decision was taken.
22. Mr Cox submitted that the applicant should not be deprived of his remedy because of the course events had taken. He had acted reasonably at all times. He should not be criticised for not seeking judicial review of the Board's decision to set aside the decision of 23rd February. The law was unsettled and it might have been said of him that he had not exhausted his remedies. The family did what they could to object to the set aside, short of applying for judicial review. Thereafter, the applicant was in the Board's hands. He did not fix the hearing dates. The delay was not of his making. Mr Cox accepted that there had been some delay between the decision of February 1999 and the lodging of the application in June but that had been due to difficulties in obtaining legal aid and Sullivan J had accepted the explanation.
23. In my view it would not now be appropriate to grant relief and quash the decision of 21st October, on the ground that it was a hearing which should never have taken place. I accept Miss Richards' submission that to permit an applicant to complain in June 1999 of a decision taken in April 1998 which he preferred at the time to accept (albeit unwillingly) is not in accordance with good administration. If such a course were encouraged, the council's resources would be unnecessarily expended on hearings of the Review Board. The applicant's family and representatives took a full part in the hearing of October 1998 and in my view there is no unfairness in giving effect to the result of that hearing. For those reasons I decline to exercise my discretion to quash the unlawful decision of 24th April 1998 and refuse this application for judicial review.