LM-v-Department for Social Development (HB) [2011] NICom 155

 

Decision No:  C3/10-11(HB)

 

 

 

 

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

 

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

 

 

HOUSING BENEFIT

 

 

Application by the claimant for leave to appeal

and appeal to a Social Security Commissioner

on a question of law from a Tribunal’s decision

dated 30 October 2009

 

 

DECISION OF THE SOCIAL SECURITY COMMISSIONER

 

 

1.     Having considered the circumstances of the case and any reasons put forward in the request for a hearing, I am satisfied that the application can properly be determined without a hearing. I grant leave to appeal and proceed to determine all questions arising thereon as though they arose on appeal.

 

2.     The decision of the appeal tribunal dated 30 October 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to housing benefit (HB), from and including 22 January 2007, is confirmed.

 

Background

 

3.     The appellant claimed and was awarded HB from and including 22 January 2007.  In her claim form the appellant indicated that she worked as a trainee solicitor and bar person and was a full-time student.  On 24 October 2007, the Northern Ireland Housing Executive contacted the appellant about her claim.  On 12 November 2007 the appellant replied to advise that she was undertaking a post-graduate course at Queen’s University Belfast.

 

4.     On 22 November 2007, a letter was received from Queen’s University confirming that the appellant was a full-time student enrolled at the Institute of Professional Legal Studies.  The correspondence from the university also sets out details of periods during which the appellant would be working in a solicitor’s office.  On 31 December 2007, the appellant supplied an extract of a letter explaining the requirements of the solicitor acting as her master for her course of study.

 

5.     On 7 February 2008, a decision-maker revised the decision dated 12 February 2007 awarding HB from 22 January 2007.  It is accepted that an incorrect date of 27 January 2007 was recorded in the revised decision.  The revised decision was that the appellant was not entitled to HB from and including 27 January 2007, although it is accepted that the correct date of disallowance should be 22 January 2007, which was recorded on the computer system.  The appellant was notified of the revision decision on 7 February 2008, and the notification contained the correct date of disallowance of 22 January 2007.

 

6.     On 17 April 2008, and following a request for a statement of reasons for the relevant decision, a letter of appeal was received from the appellant.

 

7.     The appeal tribunal hearing took place on 30 October 2009.  The appellant was not present but her father was.  The appeal tribunal was provided with a copy of a statement from the appellant. The appeal tribunal disallowed the appeal.

 

8.     On 3 March 2010 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service.  On 23 March 2010 the application for leave to appeal was refused by the legally qualified panel member (LQPM).

 

Proceedings before the Social Security Commissioner

 

9.     On 23 April 2010 a further application for leave to appeal was received in the Office of the Social Security Commissioners and Child Support Commissioners (OSSC).  On 12 May 2010 observations were sought from Housing Benefit Advice (HBA) and these were received on 11 June 2010.   Observations were shared with the appellant on 23 June 2010.  On 23 July 2010 further observations in reply were received from the appellant which were shared with HBA on 26 July 2010.  On 7 September 2010 I directed that no oral hearing of the application was required.

 

Errors of law

 

10.   A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.

 

11.   In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

 

“(i)   making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

 

(ii)    failing to give reasons or any adequate reasons for findings on material matters;

 

(iii)   failing to take into account and/or resolve conflicts of fact or opinion on material matters;

 

(iv)   giving weight to immaterial matters;

 

(v)    making a material misdirection of law on any material matter;

 

(vi)   committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

 

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

 

Was the decision of the appeal tribunal in the instant case in error of law?

 

The submissions of the parties

 

12.   In the application for leave to appeal to the Social Security Commissioner, the appellant has submitted that the decision of the appeal tribunal was in error of law on the following basis:

 

‘… I believe Mrs C…. misinterpreted/incorrectly applied the law in my case.

 

Regulation 50 states “a student as meaning a person, other than a person in receipt of a training allowance”.  It is blatantly obvious from all of the vouching documentation I supplied, as documented in the appeal papers …. that I was in receipt of a training allowance.  With all due respect to Mrs C….., I find it ludicrous that a legally qualified member, who should be familiar with my situation and the training undertaken to become a fully qualified solicitor, can state I was not in receipt of a training allowance during my two year apprenticeship.  The fact I was termed an apprentice, P….. McP…… was my master and the two years were known as an apprenticeship is evidence in itself.

 

Perhaps ticking the student box in the Housing Benefit application form was an error on my part.  However it is evident that throughout my two year apprenticeship I was in receipt of a training allowance.’

 

13.   Elsewhere in the application for leave to appeal, the appellant raises issues concerning the composition of the appeal tribunal and the consideration of the application for leave to appeal by the LQPM.

 

14.   In the written observations on the application for leave to appeal, HBA submitted that the decision of the appeal tribunal was in error of law due to certain inadequacies in its reasoning but that those inadequacies were not fatal to the appeal tribunal’s overall decision which was correct.

 

Analysis

 

15.   Gaining an entitlement to a social security benefit is dependent on the applicant satisfying the conditions of entitlement to that benefit.

 

16.   Section 129 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended, provides, so far as is relevant:

 

“129.-(1)  A person is entitled to housing benefit if-

 

(a) he is liable to make payments in respect of a dwelling in Northern Ireland which he occupies as his home;”

 

17.   Section 133 of the same part of the same Act provides, inter alia:

 

“133.-(2)  Regulations may make provision for the purposes of this Part of this Act-

 

(i) for treating any person who is liable to make payments in respect of a dwelling as if he were not so liable;”

 

18.   Regulation 53(1) of the Housing Benefit Regulations (Northern Ireland) 2006, as amended, provides that:

 

“53.-(1)  A full-time student shall be treated as if he were not liable to make payments in respect of a dwelling.”

 

19.   Regulation 53(2) of the Housing Benefit Regulations (Northern Ireland) 2006, as amended, sets out circumstances where paragraph (1) does not apply.  None of the categories are relevant to the appellant.

 

20.   Accordingly, it is clear that a ‘full-time student’ is treated as not liable to make payments in respect of a dwelling and is therefore not entitled to HB.

 

21.   The question that remains to be determined, however, is whether the appellant was, during the relevant period, a full-time student?  It was her submission, of course that she was not.

 

22.   Regulation 50 of the Housing Benefit Regulations (Northern Ireland) 2006, as amended, provides:

 

“Interpretation

 

50.-(1)  In this Part-

 

… “student” means a person, other than a person in receipt of a training allowance, who is attending or undertaking-

 

(a)   a course of study at an educational establishment; or

 

(b)   not relevant

 

“course of study” means any course of study, whether or not it is a sandwich course and whether or not a grant is made for undertaking or attending it.

 

(2)  For the purpose of the definition of “full-time student” in paragraph (1), a person shall be regarded as attending or, as the case may be, undertaking a full-time course of study or as being on a sandwich course-

 

(a)  not relevant

 

(b)  in any other case, throughout the period beginning on the date on which he starts attending or undertaking the course and ending on the last day of the course or on such earlier date (if any) as he finally abandons it or is dismissed from it.

 

“full-time student” includes a student on a sandwich course;”

 

23.   The appellant’s principal argument was that she was not a ‘student’ for the purposes of the HB regulations as she fell within the exception of the definition of ‘student’ in regulation 50(1) as she was a ‘… person in receipt of a training allowance.’  In support of that submission, she makes general reference to the ‘apprenticeship’ scheme for trainee solicitors, draws analogies with other apprenticeship schemes, and points to the fact that she is unable to access other types of funding to support her post-graduate schemes.

 

24.   That general submission that she is in receipt of a ‘training allowance’ ignores, however, the fact that there is a specific definition of ‘training allowance’ contained within the HB regulations.

 

25.   Regulation 2(1) of the Housing Benefit Regulations (Northern Ireland) 2006, as amended, provides:

 

‘2.-(1)  In these Regulations-

 

“training allowance” means an allowance (whether by way of periodical grants or otherwise) payable-

 

(a)  out of public funds by a government department or by or on behalf of the Department for Employment and Learning;

 

(b)  to a person for his maintenance or in respect of a member of his family; and

 

(c)   for the period, or part of the period, during which he is following a course of training or instruction provided by, or in pursuance of arrangements made with, a government department or approved by such department in relation to him or so provided or approved by or on behalf of the Department for Employment and Learning,

 

but it does not include an allowance paid by any government department to, or in respect of, a person by reason of the fact that he is following a course of full-time education, other than under arrangements provided under section 2 and 3 of the Disabled Persons (Employment) Act (Northern Ireland) 1945 or made under section 1(1) of the 1950 Act, or is training as a teacher;

 

“the 1950 Act” means the Employment and Training Act (Northern Ireland) 1950;’

 

26.   Accordingly, to come within the exception in the definition of ‘student’ in regulation 50(1), a claimant would have to fall within the categories set out within the definition of ‘training allowance’ in regulation 2.  Having considered all of the evidence made available by the appellant in connection with her post-graduate course at the Institute of Professional Legal Studies, and the funding of her periods of work in a solicitor’s office, as part of that course, it is abundantly clear that she is not in receipt of a ‘training allowance’ for the purposes of the Housing Benefit Regulations (Northern Ireland) 2006, as amended.  Accordingly, she cannot come within the exception of the definition of ‘student’ set out in regulation 50(1), of the same regulations.  As a result, her application for leave to appeal to the Social Security Commissioner on that ground must fail.

 

27.   In the statement of reasons for the appeal tribunal’s decision, the appeal tribunal concentrated on the issue of whether the appellant was a ‘full-time’ student, for the purposes of regulation 53(1) of the Housing Benefit Regulations (Northern Ireland) 2006.  The appeal tribunal considered the evidence provided by the Institute of Professional Legal Studies and concluded, correctly in my view, that the appellant was a full-time student for the purposes of regulation 53(1).  Accordingly, she was to be treated as not liable to make payments in respect of a dwelling, and was, therefore, not entitled to HB, as she did not satisfy the basic condition of entitlement in section 129 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended.

 

28.   The appeal tribunal, in its statement of reasons, did not address the specific issue of whether the appellant fell within the exception to the definition of ‘student’ set out in regulation 50(1), of the of the Housing Benefit Regulations (Northern Ireland) 2006, as amended.  The decision of the appeal tribunal that the appellant was not entitled to HB, was, however, undoubtedly correct.  Accordingly, even if I was to hold that the decision of the appeal tribunal was in error of law on the somewhat ‘technical’ basis that it did not address an issue specifically raised by the appeal, I would have been prepared to make the decision which the appeal tribunal ought to have made and hold, as set out above, that the  appellant does not fall within the exception to the definition of ‘student’ set out in regulation 50(1), of the Housing Benefit Regulations (Northern Ireland) 2006, as amended.

 

29.   In her application for leave to appeal, the appellant notes that the LQPM who determined her application for leave to appeal to the Social Security Commissioner was the same LQPM who had heard and determined her appeal.  Under the provisions of Article 15(10)(a) of the Social Security (Northern Ireland) Order 1998, as amended, no appeal lies to the Social Security Commissioner without the permission of the person who constituted, or was the chairman of the appeal tribunal when the decision was given.  That is the basis upon which the LQPM considered the application for leave to appeal.

 

30.   In the application for leave to appeal, the appellant has also noted that she found it strange that the appeal tribunal hearing was chaired by a LQPM sitting alone.  Regulation 36(1) of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999, as amended, provide that, subject to the following provisions of the regulation, an appeal tribunal shall consist of a LQPM.  The remaining provisions of regulation 36 allow for the appeal tribunal panel to be composed of more than one member depending on the issues raised within the appeal, such issues being related to particular social security benefits.  None of the remaining provisions within regulation 36 relate to HB or the issues arising in the present appeal.  Accordingly, the appeal tribunal was properly constituted.

 

31.   As was noted above, the appellant forwarded lengthy correspondence to OSSC, in response to the receipt of the written observations on the application for leave to appeal, provided by HBA.  On that correspondence, the appellant has set out a number of grievances in connection with the manner in which her claim to HB, and subsequent appeal, were dealt with.  Having considered the content of that correspondence I cannot find therein a ground on which it could be said that the decision of the appeal tribunal was in error of law.

 

Disposal

 

32.   The decision of the appeal tribunal dated 30 October 2009 is not in error of law.  Accordingly, the appeal to the Social Security Commissioner does not succeed.  The decision of the appeal tribunal to the effect that the appellant is not entitled to HB, from and including 22 January 2007, is confirmed.

 

 

(signed):  K Mullan

 

Commissioner

 

 

 

21 March 2011