England and Wales High Court (Administrative Court) Decisions

Bono, R (on the application of) v Harlow District Council [2002] EWHC 423 (Admin) (15th March, 2002)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 March 2002

Mr Justice Richards:

1. This is a challenge to a decision of the Harlow District Housing Benefit Review Board dated 11 January 2001 that the claimants were not entitled to receive housing benefit for the period 29 June 1998 to 7 February 1999. The claimants contend that the Board erred in their application of the relevant regulations and that there was a breach of the claimants’ rights under article 6 of the European Convention on Human Rights since the Board was not an independent and impartial tribunal.

Statutory framework

2. Entitlement to housing benefit is governed by s.130 of the Social Security Contributions and Benefits Act 1992. Detailed provisions as to the making of claims were contained at the material time in the Housing Benefit (General) Regulations 1987.
3. By Regulation 73(1) of the 1987 Regulations:

“… A person who makes a claim shall furnish such certificates, documents, information and evidence in connection with the claim, or any question arising out of it, as may be reasonably required by the appropriate authority in order to determine that person’s entitlement to housing benefit, and shall do so within 4 weeks of being required to do so or such longer period as the appropriate authority may consider reasonable ….”

4. Regulation 76 provides:

“(1) Unless provided otherwise by these Regulations, any matter required to be determined under these Regulations shall be determined in the first instance by the appropriate authority.

(2) An authority shall be under no duty to determine a claim – …

(b) where the claimant has failed to satisfy the provisions of regulation 73 … (evidence and information) ….”

5. The 1987 Regulations also provide for reviews. The enabling statutory provision is s.63(3) of the 1992 Act, which is in very general terms:

“Regulations shall make provision for reviews of determinations relating to housing benefit ….”

6. Provision is made in regulation 79 for reviews of determinations and in regulation 81 for further reviews by a Review Board. Regulation 81 reads:

“(1) A person affected who has made representations under regulation 79(2) (review of determinations) may give or send to the appropriate authority written notice signed by him requesting a further review of the determination within 4 weeks of the date on which the determination on those representations was sent to him .…

(2) The notice given under paragraph (1) shall set out the grounds on which a further review is requested.

(3) The further review shall be conducted by a Review Board appointed by the appropriate authority and constituted in accordance with Schedule 7.”

7. Schedule 7 provides:

“1. A Review Board appointed by an authority listed in column (1) of the Table below shall consist of not less than three of the persons specified in relation to that authority in Column (2) of that Table.

Table

(1) Authority	(2) Composition of Board
1. A local authority other than the Common Council of the City of London	1. Councillors of that Authority.”

8. Regulation 83 deals with decision-making upon further review by a Board. It provides:

“(1) Upon further review the Review Board shall decide whether to confirm or revise the determination of the appropriate authority ….

(2) In reaching its decision the Review Board shall apply the provisions of these Regulations as though any duty imposed on, or power or discretion conferred on, an authority were imposed or conferred on the Review Board.”

Factual background

9. In early 1998 the claimants commenced trading as self-employed market traders, trading in football memorabilia. The business generated a low income. On 28 January 1998 they applied for family credit and at the same time applied for housing benefit and council tax benefit.
10. By letter dated 10 February 1998 the Family Credit Unit at the Benefits Agency notified the claimants that they were entitled to receive family credit with effect from 6 January 1998. The estimated earnings and expenses relied on in support of the family credit application were also relied on in support of the claim for housing benefit. After an initial query by letter dated 3 April 1998 it was confirmed by the council's Benefits Unit that the earnings figure accepted for the purposes of family credit would be used to calculate housing benefit up to June 1998, after which the claimants would have to provide proper books showing income and expenditure; otherwise the Benefits Unit would not be able to continue assessing the housing benefit claim. Housing benefit was thereafter paid up to 28 June 1998.
11. An application for housing benefit was subsequently submitted in respect of the following period, again relying on figures used in respect of a corresponding application for family credit and accepted for the purposes of assessing family credit. A central issue in the present proceedings is whether the claimants, in addition to submitting the family credit figures, attempted at some point to submit further material in support of the application for housing benefit. I will come back to that issue.
12. By letter dated 1 July 1998 the Benefits Unit stated as follows:

“Thank you for your application for Housing Benefit and Council Tax Rebate. However, I need the following proof to verify your claim:

Please refer to my previous letter of 3^rd April which asked you to provide actual books or accounts with regards your self-employed earnings.”

13. The claimants then sought the assistance of an adviser, Mr Shah, who submitted on their behalf a letter dated 12 July 1998 enclosing the form which had been submitted to the Family Credit Unit and a letter from the Family Credit Unit accepting the figures on that form.
14. By letter dated 21 July 1998 the Benefits Unit stated:

“I am writing in reply to the request from A. Shah, Welfare Rights that we assess your claim for Housing/Council Tax Benefit using the form you completed for the Family Credit Unit.

I have discussed this matter with my Senior Officer, and looked at the form you completed for them and we feel that we cannot use the information you provided for them. In order to assess Housing Benefit we would need to see either audited accounts or Weekly/Monthly figures. I refer again to the letter sent to you on 3^rd April 1998 where you were informed that we would assess your claim for six months and then we would need to see more accurate accounts or books.

If you cannot provide these details then I am afraid that I cannot assess your claim ….”

15. By letter dated 6 August 1998 the claimants requested a review taking into account that the figures had been accepted by the Family Credit Unit and that the claimants had been informed by that Unit that every authority in the country accepted their decision. It was also pointed out that as a small business the claimants could not afford an accountant at that time.
16. The response by letter dated 11 August 1998 from the Benefits Unit stated:

“To assess your claim for Housing/Council Tax rebate we need to know a week-to-week, or month-to-month profits and details of your expenses. The Family Credit unit do not ask for these details, but for Housing/Council Tax benefit purposes we need a breakdown of expenses as some are allowable and some are not.

There is no need for actual audited accounts, as I informed you before (please refer to copies of letter dated 3^rd April 1998 and 21^st July 1998), just weekly or monthly details will suffice.

If you are not able to provide us with these details I am afraid we cannot continue with your claim.

If you are still dissatisfied with this decision you may ask within four weeks of this notification for your claim to be considered by a Review Board ….”

17. A request for a hearing before a Review Board was made by letter dated 2 September 1998, relying on the same grounds as had been submitted in support of the application for a review dated 6 August 1998. Owing to an administrative oversight there was a long delay in the case coming before a Review Board. A hearing eventually took place on 15 February 2000.
18. In the meantime, on 8 January 1999, the claimants had submitted a further claim for housing benefit, for the period commencing 8 February 1999. That and subsequent claims were accepted by the Benefits Unit, resulting in the payment of housing benefit from that time. In addition, audited accounts for the first year of trading were prepared in August 1999 and were accepted by the Unit.
19. The decision of the Review Board, dated 21 February 2000, was to uphold the defendant’s decision that no benefit was payable for the period 29 June 1998 to 7 February 1999. The claimants then applied under regulation 86 to set aside the decision and also applied for permission to apply for judicial review of the decision. Permission to apply for judicial review was granted on 6 September 2000. In the event, however, the decision was set aside by another Board on 17 October 2000 on the basis of a procedural irregularity and the challenge by way of judicial review was withdrawn.
20. The matter was then referred to a newly constituted Review Board which heard the case on 8 January 2001. The Board consisted of three councillors of the defendant council, in accordance with regulation 81(3) and Schedule 7. The claimants presented their own case at the hearing. It will be necessary to consider further what issues and what material were before the Board.
21. By its decision, dated 11 January 2001, the Board upheld the original decision. I shall need to come back to the section of the decision dealing with the facts of the further review. The decision itself was recorded in these terms:

“1. The Board found as fact that the Applicants were not required by the Benefits Unit to produce audited accounts. This was clear from the correspondence submitted with the Benefits Unit’s case.

2. The Board found that the Benefits Unit were entitled to request information as to the Applicants’ income and expenditure in order to carry out the function of assessing the level of Housing Benefit due to the Applicants, pursuant to Regulation 73 of the 1987 Regulations.

3. The Board noted that the Benefits Unit had been fair in allowing the Applicants Housing Benefit by using the assessment made by the Family Credit Unit up until June 1998, and the Applicants had had sufficient time to prepare basic details of income and expenditure.

4. The Board found that the Applicants had failed to provide the necessary information before the end of June 1998, as requested. This request was made in order that the Benefits Unit could make its own assessment in accordance with Regulation 23 of the 1987 Regulations.

5. The Board found as fact that the figures supplied by the Applicants in June 1998 did not deal adequately with the expenses that had been incurred by the Applicants in the course of their business. The Board also found that the figures provided in January/February 1999 were sufficiently detailed in order to allow the Benefits Unit to carry out an assessment of the Applicants’ income and thus entitlement to Housing Benefit for the following Benefit period. The Board further found that as the Applicant had failed to make a request, no back date could be made.

6. The Board accepted that the Benefits Unit should exercise its own discretion in assessing income and thus entitlement to Housing Benefit.

7. The Board found that as the Applicants had failed to comply with Regulation 73 of the 1987 Regulations, the Benefits Unit were under no duty to determine the Applicants’ claim – Regulation 76 of the 1987 Regulations.

8. The Board upheld the Benefits Unit decision to withdraw Housing Benefit for the period 29 June 1998 to 7 February 1999.”

Article 6 ECHR

22. Mr Fitzpatrick’s case on behalf of the claimants can be summarised briefly. He submitted that (i) the Review Board, consisting of councillors of the defendant council, was not itself an independent or impartial tribunal within article 6 and (ii) since the decision involved the determination of issues of primary fact, judicial review cannot provide sufficient judicial control to remedy that deficiency. He relied on R (Bewry) v. Norwich City Council [2001] EWHC Admin 657, R (Beeson) v. Dorset County Council and Secretary of State for Health [2001] EWHC Admin 986 and Adan v. London Borough of Newham [2001] EWCA Civ 1916. As explained in Bewry, any problem with regard to housing benefit review boards has been solved with effect from 2 July 2001 by the introduction of a new system of appeal to an independent tribunal. The decision now under challenge, however, was made under the old regime.
23. Mr Manning, for the council, did not accept that Bewry was correctly decided. He acknowledged, however, that this court was likely to follow Bewry and he reserved his attack on that decision for appeal. Assuming that Bewry was otherwise correct, however, he submitted that (i) the council had a defence under s.6(2)(b) of the Human Rights Act 1998, a point not considered in Bewry, and (ii) there was in any event no breach of article 6 since the Board did not have to decide any material dispute of fact and judicial review does provide sufficient judicial control in the particular circumstances of the case.
24. The Secretary of State was notified of the proceedings, in which inter alia a declaration of incompatibility is sought, but has not played any part in them.
25. It is unnecessary to set out at length the judgment of Moses J in Bewry. The case concerned a challenge to a decision of a housing benefit review board which had involved an assessment of credibility. The decision under challenge was made before the Human Rights Act came into effect but the judge held that the common law provided no less a protection to the claimant than did article 6. He relied on the case law under article 6 in reaching his conclusion, in particular R (Alconbury Developments Limited) v. Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2001] 2 WLR 1389. The most material part of his judgment is at paragraphs 62-65:

“62. In my judgment, the connection of the councillors to the party resisting entitlement to housing benefit does constitute a real distinction between the position of an inspector and a Review Board. The lack of independence may infect the independence of judgment in relation to the finding of primary fact in a manner which cannot be adequately scrutinised or rectified by this court. One of the essential problems which flows from the connection between a tribunal determining facts and a party to the dispute, is that the extent to which a judgment of fact may be infected cannot easily be, if at all, discerned. The influence of the connection may not be apparent from the terms of the decision which sets out the primary fact and the inferences drawn from those facts. But the decision does not, and indeed should not, set out all the evidence.

63. The weight and impression given by that evidence will be a matter for the judgment of those before whom it is presented. The extent to which they have been influenced will not be manifest from the decision and it may indeed be something of which they themselves are unaware. That is, after all, the origin of the principle which determines the question of bias in terms of risk and not of actual bias. Real possibility and real danger are necessarily tests for the very reason that actual bias cannot readily be demonstrated.

64. Thus it is no answer to a charge of bias to look at the terms of a decision and to say that no actual bias is demonstrated or that the reasoning is clear, cogent and supported by the evidence. This court cannot cure the often imperceptible effects of the influence of the connection between the fact-finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence.

65. Accordingly, I conclude that there has been no determination of the claimant’s entitlement to housing benefit by an independent and impartial tribunal. The level of review which this court can exercise does not replenish the want of independence on the Review Board, caused by its connection to a party to the dispute.”

26. I reached a similar decision in Beeson, in relation to the decision of a council under the National Assistance Act 1948 where the decision-making process included a hearing before a panel consisting of one independent member and two councillors.
27. In Adan Brooke LJ referred inter alia to Bewry and to a judgment of Stanley Burnton J in R (Hussain) v. Asylum Support Adjudicator [2001] EWHC Admin 832. He agreed with the following passage in the judgment in Hussain (see paragraph 47 of Brooke LJ’s judgment in Adan):

“… where the decisions of a tribunal are likely to depend to a substantial extent on disputed questions of primary fact, and the tribunal is clearly not independent, judicial review should not suffice to produce compliance with Article 6. The scope for review of findings of primary facts is too narrow to be considered a ‘full jurisdiction’ in such a context. Fact-dependent decisions must be made by fully independent tribunals: the scope for judicial review of primary findings of fact, and particularly of findings as to the credibility of witnesses, is generally too narrow to cure a want of independence at the lower level.

I think that the Courts should lean against accepting judicial review as a substitute for the independence of tribunals. If the availability of judicial review is too easily regarded as curing a want of independence on the part of administrative tribunals, the incentive for the executive and the legislature to ensure the independence of tribunals is considerably weakened.”

28. After receiving a draft of my judgment in the present case, counsel drew my attention to the judgment of the Court of Appeal on 6 March 2002 in Tower Hamlets LBC v. Begum [2002] EWCA Civ 239, in which it was held that Adan was wrongly decided. The judgment provides an interesting analysis of the circumstances in which the availability of judicial review or an equivalent statutory appeal may be sufficient to secure compliance with article 6 in respect of a statutory scheme involving issues of judgment and discretion as well as fact-finding. The judgment, although perhaps casting doubt on the decision in Bewry, does not deal with it directly and leaves open the question whether Bewry was correctly decided. For that reason and because of the conclusions I have reached in any event, as explained below, about the adequacy of judicial review in the present case, I do not think it necessary to deal further with Tower Hamlets for present purposes. Counsel did not suggest that it altered the substance of the judgment in this case.
29. That is the background against which I will examine whether the present case involves issues of primary fact such that, on the authority of Bewry, judicial review is incapable of securing overall compliance with article 6. I do so, of course, on the basis that the original decision was taken by a tribunal that did not itself have the requisite degree of independence and impartiality.
30. Before I do that, however, I should consider Mr Manning’s first line of defence, under s.6(2)(b) of the Human Rights Act 1998. If he is right in relation to that defence, it will be unnecessary to go any further on article 6.
31. Section 6 of the 1998 Act provides in material part:

“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if –

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”

32. Mr Manning submitted that s.6(2)(b) applies in this case, in that under the regulations the council was required to appoint councillors to the review board: regulation 81(3) and Schedule 7 admitted of no alternative. The regulations themselves might be subject to challenge for incompatibility with the Convention, given that the enabling primary legislation is in broad terms and does not require the adoption of regulations incompatible with the Convention. But the council was required to comply with the regulations unless and until they were quashed. The council’s only powers in relation to the conduct of further reviews were those laid down by the regulations and Parliament cannot have intended to produce a result whereby the council acted unlawfully by acting in the only way open to it under the regulations. On the contrary, the purpose of the provision is to protect authorities from the consequences of subordinate legislation that is incompatible with the Convention.
33. Mr Manning acknowledged that the commentators are against his interpretation of the provision. For example, Clayton and Tomlinson's The Law of Human Rights states at paragraph 5.107 that in order to escape liability “a public authority must show that the enabling legislation deprives it of any discretion about how it can act”. Grosz, Beetson and Duffy, Human Rights: the 1998 Act and the European Convention, states at paragraph 4-22 that the provision protects a public authority when it is acting to give effect to or enforce (i) one or more provision of primary legislation or (ii) one or more provisions made under primary legislation, “in either case where the primary legislation cannot be read or given effect in a way which is compatible with Convention rights”. The gist of the views expressed is that, where the enabling primary legislation can be interpreted compatibly with Convention rights, incompatible subordinate legislation made under it cannot provide a lawful justification for acts incompatible with Convention rights.
34. Mr Manning submitted that commentaries on newly enacted legislation are less helpful than those on tried and tested issues. Whatever the merit of that as a general proposition, I have no hesitation in agreeing with the commentators on this issue. In my judgment s.6(2)(b) protects an authority only where the primary legislation cannot be read or given effect in a way which is compatible with Convention rights. It does not protect in relation to subordinate legislation that is incompatible but not inevitably incompatible, i.e. where the incompatibility is not a necessary consequence of the primary legislation. Since in the present case the enabling provision, s.63(3) of the 1992 Act, is in very general terms and does not require the regulations to provide for the constitution of a Board lacking in the attributes of independence and impartiality, s.6(2)(b) cannot provide a defence to the council.
35. I reach that conclusion for a number of reasons:

i) It is more natural to read the words “which cannot be read or given effect in a way which is compatible with the Convention rights” in s.6(2)(b) as qualifying “primary legislation” rather than “provisions”. If read as qualifying “primary legislation”, they limit the scope of the provision to cases where the incompatibility is inherent in the primary legislation.

ii) The policy of the 1998 Act is to preserve the validity of incompatible primary legislation and of inevitably incompatible subordinate legislation, but not to preserve the validity of incompatible subordinate legislation where the incompatibility is avoidable: see ss.3 and 4, in particular s.3(2)(c) and s.4(4)(c). It is consistent with that policy to read s.6(2)(b) as protecting an authority only where the incompatibility is inherent in the enabling primary legislation.

iii) Section 3(1) of the 1998 Act requires that, so far as it is possible to do so, s.6(2)(b) should be read and given effect in a way which is compatible with Convention rights. The broader construction of s.6(2)(b) advanced by the council would mean that the council acted lawfully and the claimants had no remedy even if the decision was in breach of the claimants’ rights under article 6. The provision should be read so as to avoid that result if possible. The narrower construction that I favour would avoid that result and is a possible construction. It is therefore to be preferred.

iv) If and to the extent that the regulations are incompatible with the Convention by requiring the appointment of a Review Board in breach of the claimants' rights under article 6, then the regulations could themselves be quashed by the court; and if they were quashed, the decision of the Review Board constituted in accordance with them would likewise fall to be quashed. It would, however, be very surprising if s.6(2)(b) gave the council a statutory defence unless and until the court formally quashed the material part of the regulations, especially in circumstances where, as here, to quash the regulations would be a pure act of formalism with no wider utility (since the regulations have already been superseded in material part by a new statutory regime for the determination of appeals by independent tribunals).

v) I accept that there are conceptual difficulties in relation to the question whether the council, had it wished to do so in order to secure compliance with article 6, would have been free to appoint a Review Board otherwise than in accordance with regulation 81(3) and Schedule 7. Since its powers in relation to reviews are derived from the 1987 Regulations, the scope for acting outside the strict ambit of the Regulations is not obvious. I was not addressed at any length in argument on this point and it is unnecessary to decide it. The fact is that the council did not seek to adopt any other course than to apply Schedule 7; and if that produces a result contrary to the Convention, then the decision should be quashed. If it is quashed, the matter will fall to be redetermined under the new statutory appeals procedure and it is therefore unnecessary to consider the position in which the council would otherwise have found itself.

36. In the light of my conclusion that the council does not have a defence under s.6(2)(b) of the 1998 Act, it is necessary to return to consider whether the lack of independence and impartiality of the Review Board did give rise to a breach of article 6 in the particular circumstances of this case. Consideration of that point overlaps with the issues raised under the heading of misapplication of the regulations. I shall, however, deal here with the main aspect of the matter, which is whether an issue of primary fact was raised for determination by the Board.
37. What the first claimant says in her witness statement in the present proceedings is that after receiving the council's letter of 1 July 1998 she attended the Housing Benefit Department personally with two documents: her "notebook" (consisting of the daily takings records from the stall) and her "accounts book" (based on the daily takings records, but including details of expenditure as well as of income). The woman member of staff to whom she spoke said that neither of the books would be acceptable because they did not represent certified accounts. She also said that the books would take too long to photocopy and, as they were in pencil, would probably not be legible once copied. On that basis the member of staff refused to copy or accept them. It was after this that the claimants sought the advice of Mr Shah, who wrote the letter dated 12 July 1998 on their behalf. Following the council's response dated 21 July 1998 the first claimant tried once again to submit her notebook and accounts book to the Housing Benefit Department's reception but the member of staff refused to copy them, being adamant that as they were not certified accounts they were not acceptable.
38. The first claimant goes on to say that when the claimants submitted a further application for housing benefit in early 1999, the figures relied on were the same as those which she had attempted to submit in the period June-August 1998, save that there were an additional six months' figures (from July 1998) and the accounts book had now been inked-in.
39. According to her witness statement, these matters were raised at the Review Board hearing on 8 January 2001. She asked Mr Tilmouth, one of the representatives of the Benefits Unit, why he would not accept the accounts book and daily taking records (i.e. the notebook) which she had tried to submit. He said that he had not seen them. Mrs Morgan, the other representative of the Benefits Unit present at the hearing, then produced the inked-in accounts book submitted in early 1999. The first claimant produced her notebook and suggested that Mr Tilmouth and the Board have a look at this too. Mr Tilmouth and the Board asked to see the notebook but none of them asked to see the accounts book that Mrs Morgan was holding. Having looked at the notebook, the Board indicated that the records were not very detailed. The first claimant agreed that they were probably not sufficient for the assessment of entitlement. But she reiterated that the council had also had her accounts book and explained how the entries in that were created. She observes in her witness statement that no-one seemed particularly interested when she mentioned the accounts book.
40. The council's evidence to this court gives a significantly different account of what was said at the hearing. For example, Ms Daphne Pennick, the councillor who chaired the Board, refers to the first claimant's production of what was plainly the notebook. The book was examined by the Board. Ms Pennick felt on balance that the second claimant (I think she must mean the first claimant) had attended the Town Hall with the book, but the Board did not make a specific finding of fact on the issue as the book was clearly inadequate to enable a calculation of net income to be made. According to her evidence, the claimants said that they had another book into which they copied the figures from the notebook and that this book also included details of expenditure. That is plainly a reference to the accounts book. She goes on:

“The Claimants did not produce this book however nor did they allege that it was ever produced to the Benefits Service. No other accounts or figures were presented to the Review Board and no application was made by the Claimants for any other books or figures to be submitted in evidence.”

41. The two other members of the Board give a very similar account, save that one of them, Mr Michael Garnett, says that he thought it unlikely that the notebook had been produced and rejected. That nothing but the notebook was tendered to the Board by the claimants is also confirmed in the witness statement of Ms Elaine Bell, who acted as legal adviser to the Board.
42. Mr Manning submits that the account given by the Board's members and legal adviser corresponds with the version of events put forward by the first claimant in her witness statement in the first judicial review proceedings, where she said in relation to mid-1998 that "all we had was our daily takings book" (i.e. the notebook) and that they tried unsuccessfully to submit it. That seems to be correct. The point is plainly relevant to the first claimant's credibility. It is not for me to determine, however, what happened as a matter of fact in mid-1998. To the extent that it was raised before the Board, that was a matter of fact for the Board to determine. What I need to determine is to what extent the issue was actually raised before the Board.
43. As to that, I have available to me not only the rival accounts given respectively in the evidence of the first claimant and in the evidence of the Board's members and legal adviser, but also, and very importantly, what appears in the Board's decision itself. There are passages in the Board's decision which tend to support the first claimant's account of what happened at the hearing. I refer in particular to the following, italicising the parts that seem to me to involve references specifically to the accounts book rather than to the notebook:

“14. The Applicants asked Mr Tilmouth why the figures they provided were not accepted in June 1998 but were later accepted in January/February 1999. Mr Tilmouth replied that the figures provided by the Applicants in June 1998 did not adequately show expenditure incurred in the course of business.

….

16. The Applicants presented their case. The Benefits Unit had been supplied with everything that they had requested. The Applicants had produced their notebook and details of income for the Review Board …. The Applicants further stated that their notebook had been rejected as being inadequate by a member of staff from the Council, they were not certain if it was a member of staff from the Benefits Unit. The Applicants submitted figures in or around June 1998 as evidence of their income and expenditure, but these, too, had been rejected by the Benefits Unit.

….

20. When questioned by the Board, the Applicants accepted that the notebook kept by themselves giving details of their takings was not sufficient for the purposes of the Benefits Unit in assessing income. The Applicants admitted that they transferred the figures from their notebook into another book which recorded expenditure as well as income ….

21. The Applicants stated that if the figures were acceptable in January/February 1999, they should have been accepted in June 1998 …” (emphasis added).

44. In my judgment the likelihood is that at the hearing the claimants did advance the case that they had tried unsuccessfully to submit the accounts book as well as the notebook in mid-1998; and the inked-in version of the accounts book that was subsequently accepted and that formed the basis of the successful claim to benefit from February 1999 was identified as being in the possession of the representatives of the Benefits Unit at the hearing. That case is reflected in the summary given in the decision, but its true nature and significance do not appear to have been appreciated by the members of the Board or by the Board's legal adviser. I have very considerable sympathy with them in relation to that. It was plainly not an easy hearing. The claimants were acting in person and do not appear to have brought their case into the same focus as a lawyer would have done. Nevertheless I find that they did raise the issue; and since it was raised, it fell to be dealt with.
45. Had the Board dealt with the issue and resolved it in a manner adverse to the claimants, then the case would in my judgment fall plainly within the ratio of Bewry. This was an issue of primary fact substantially dependent on the credibility of the claimants. The court in judicial review proceedings could not exercise sufficient judicial control to remedy the lack of independence and impartiality of the Board.
46. As it happens, however, in my judgment the Board did not deal adequately with the issue and did not resolve it one way or the other. That omission was a consequence of the Board's failure, understandable though it was, to appreciate the nature and significance of the point raised. It means that the Board failed to take into account a material consideration. For that reason the decision must be quashed. The result is that in relation to this issue of primary fact the court is, in the particular circumstances of the case, able to exercise sufficient judicial control. So far as this issue is concerned, the court has "full jurisdiction" to deal with the case as the nature of the decision demands and overall compliance with article 6 is therefore achieved. That, of course, is of little comfort to the council, since the only reason why it wins on article 6 is that it loses on the issue of misapplication of the regulations.
47. Similar considerations apply to another issue raised under the heading of misapplication of the regulations, namely a failure by the Board to exercise a discretion to take into account, in relation to the period in question, the information subsequently accepted in support of the claim to benefit in respect of a later period. Had such a discretion been exercised in a manner adverse to the claimants, that too might well have given rise to problems under article 6. But since, for reasons given below, I find that that Board erred in failing to consider the exercise of such a discretion at all, the court is able in the circumstances to exercise sufficient judicial control. Again, therefore, the council's success under article 6 is the consequence of the decision failing to withstand scrutiny under more conventional principles of judicial review.
48. Although I have covered much of the field, I now turn to consider further the issues raised in relation to misapplication of the regulations.

Misapplication of the regulations

49. Mr Fitzpatrick made clear at the hearing before me that the claimants no longer pursue the ground upon which the application for a review was originally based, namely that since the information originally provided by them was accepted at the time for family credit purposes, it was unreasonable not to accept it for housing benefit purposes too.
50. Two main grounds are pursued. They both relate to the accounts book which was accepted for the purposes of entitlement to housing benefit with effect from February 1999. The claimants contend first, as indicated above, that they produced the accounts book in mid-1998 (at that time showing figures up to June 1998) and thereby complied with the requirement in regulation 73(1) to furnish information as requested by the council; and that the Board failed to take this relevant matter into consideration. I have already dealt with this in the context of article 6. For the reasons given, I take the view that the claimants' case is well founded: they did raise the issue, the Board failed to deal with it and this amounted to a failure to take account of a material consideration. Had the Board found that the accounts book was produced in mid-1998, then this should have led to an overall decision in the claimants' favour, since the Board made an express finding that the accounts book was sufficiently detailed for the purposes of benefit entitlement in respect of the later period. In my judgment that is sufficient to justify quashing the decision.
51. The second ground pursued by the claimants is that, even if the information was not provided within the 4-week period referred to in regulation 73(1), the regulation gives a discretion to extend time and the Board erred in law in failing to recognise the existence of, or to consider the exercise of, that discretion in the light of the fact that the accounts book was subsequently provided and accepted for the purposes of future entitlement.
52. Mr Fitzpatrick submitted that regulation 83(2) confers on the Review Board the power to exercise any discretion conferred on the council and that this must include the discretion to extend time retrospectively under regulation 73(1). That a Board can take into account information that has become available since the date of the original decision is implicit in R v. City of Westminster Housing Benefit Review Board, ex p. Mehanne [1999] 2 All ER 317. It is clear from the evidence of the members of the Board in the present case that they did not know that they had such a discretion, let alone did they consider the exercise of it. They could and should have considered whether to treat as evidence in support of the earlier claim the material subsequently accepted in February 1999. They considered and dismissed the possibility of backdating of benefit, which the claimants had raised at the hearing. But they did not consider the wider question of allowing the later material to be used in support of the earlier claim. Although the claimants had not raised that wider question, it was the kind of point that the Board should have considered for themselves, since it arose directly out of regulation 73 which was the only regulation in play. The situation falls within the scope of the observations of Sedley J in R v. North Cornwall District Council, ex p. Singer (1993) 26 HLR 360 at 367:

“Limiting what I say to the Review Board, it is clear that it has duties which are not those of a court of law. In particular it, like the authority, is a custodian both of public funds and of the interests of those local people who claim and may be entitled to housing benefit. It cannot properly fulfil this dual function if it confines itself like a court of law to adjudicating on pleaded points. Equally, however, I accept that the Review Board cannot be expected and is not required by the regulations to trawl through the whole of the statutory scheme in order to see if any points which might have been taken either for or against the claimant have been overlooked.

The present cases, however, do not require any such roving commission. All [counsel for the claimant] seeks to establish is that when a review is based on a single sub-paragraph in a Schedule to the regulations, it is appropriate for the Review Board to consider whether any limb of the sub-paragraph, not merely the one focused on in argument, has a bearing on the claim …. In my judgment she is right in that contention.”

53. Mr Manning, for the council, accepted that the Board was considering the entitlement to housing benefit de novo and that pursuant to regulation 83 it had a discretion to extend time for the furnishing of information that had been requested. But he submitted that it was not incumbent on the Board to consider the exercise of that discretion in the circumstances of this case. It was not raised by the claimants and was not the focus of the case advanced. Regulation 81(2) requires a claimant to set out the grounds on which a further review is requested. The grounds in this case related to the contention that the acceptance of figures for family credit purposes should lead to their acceptance for housing benefit purposes. It is true that at the hearing before the Board the claimants raised as a further issue their contention that they had supplied the information requested in mid-1998 but the council had refused to accept it. As to that, the claimants produced the notebook, the Board examined it and expressed the view, with which the claimants agreed, that it was inadequate for housing benefit purposes. It was known in addition that the accounts book had been accepted for housing benefit purposes as from February 1999. But the Board had not been shown the accounts book and the claimants did not request the Board to receive it in evidence or to look at it. Nor did the claimants request an extension of time to enable that material to be taken into account in respect of the earlier period, or give any reason why time should be extended. The claimants did raise the question of backdating of benefit, but the Board correctly rejected that possibility.
54. Thus, submitted Mr Manning, the Board dealt properly with everything that was raised. It was not obliged to go through the regulations in order to see whether there was any other way in which the claimants might establish entitlement to benefit. To expect a Board to originate a new argument of this kind, dependent upon the exercise of a discretion, would be to go much further than Singer, where the issue was simply whether the Board should have considered whether the facts fitted within another limb of the same sub-paragraph of a schedule. Given the way the case was presented, and bearing in mind that the claimants, although representing themselves at the hearing, had previously had legal advice, the members of the Board can feel justifiably aggrieved at the suggestion that they fell into error by failing to raise this point for themselves.
55. I have already expressed my understanding of the difficulties facing the Board at the hearing before it. It seems to me, however, that the question whether to exercise the discretion to extend time under regulation 73(1) did call for consideration. Given that the accounts book was accepted for benefit purposes as from February 1999 and the claimants raised the question why it was not also accepted in respect of the earlier period, the Board ought at least to have considered whether the accounts book should be accepted in relation to the earlier period even if, as they assumed, it had not been submitted at the correct time. The discretion to extend time was an integral part of the very paragraph of the regulation upon which the Board's decision was based. In my judgment the situation does fall within the scope of the reasoning in Singer. This was the kind of point that it was appropriate for the Board to consider even though it was not raised in these terms by the claimants. The Board ought to have been alert to the existence of a discretion and to have considered whether to exercise it or not. In holding that the claimants were in breach of regulation 73(1) without given any consideration to the discretionary element of that regulation, the Board either erred in law or failed to take into account a relevant consideration. Accordingly, on this ground, too, I would quash the decision.

Conclusion

56. For the reasons given I hold that the claim for judicial review succeeds. The decision of the Review Board dated 11 January 2001 will be quashed. The claim to benefit will fall to be redetermined under the new statutory appeals procedure.